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Rethinking Legal Reasoning

Geoffrey Samuel

‘Rethinking’ legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning?
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Chapter 6: How do legal reasoners treat facts?

Geoffrey Samuel


In this chapter attention is turned to facts and legal reasoning. How do lawyers envisage facts and how should they be pleaded? The relationship between the institutional model (persons, things and actions) and social fact situations is examined which in turn leads to an epistemological discussion on the coming and going between law and fact and fact and law. One particular factual issue that generates great difficulty in legal cases is causation and its proof and, as this chapter notes, this has provoked a debate about the distinction between cause and risk. The chapter goes on to suggest that a distinction employed in the epistemology of science, between actual and virtual facts, could have relevance for legal epistemology; and that the idea of virtual facts leads to a reasoning process founded upon competing narratives.

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