Chapter 10: Can legal reasoning be rethought?
By way of conclusion with respect to the Chapters 1–9, what this chapter does is to engage with a challenge by two American jurists whose thesis would in many ways appear opposed to much of what has been said in this present work. The thesis challenged is one that argues that legal reasoning can be demystified and that it is no more than ordinary reasoning applied to legal problems. This chapter will not as such dispute the authors’ central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be argued that legal reasoning is not just reasoning from and about rules; it is also reasoning about facts and about the construction of factual situations. Consequently it is vital for anyone wishing to have a serious understanding of how lawyers reason to have a familiarity with how social scientists, and indeed natural scientists, reason about fact. Such reasoning certainly involves induction, deduction and analogy (discussed in this chapter) but these methods are by no means adequate as an epistemological framework; schemes of intelligibility and paradigm orientations are equally important. If there is one paradigm orientation that is special to certain disciplines like theology and law it is the authority paradigm, an orientation that must be distinguished from an enquiry paradigm.
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