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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 11: Rethinking legal reasoning: should jurists take interests more seriously?

Geoffrey Samuel

Extract

The purpose of the final two chapters is to provide a more concrete means for rethinking legal reasoning. The chapters do this by emphasising the interest model over the other models (cf Chapter 4). They accordingly investigate whether the notion of an interest should be taken at least as seriously as the notion of a right and it is argued (using in particular the work of François Ost) that it should. And not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law. It should be taken seriously also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts (at least as far as the common law is concerned). In this first chapter on the notion of an interest the notion itself is examined and then analysed from the position of the legal subject (persona), legal object (res) and legal remedy (actio).

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