Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 42: Legal reasoning*

Jaap Hage


Legal reasoning can be studied from several points of view. It is for instance possible to look at the brain processes of somebody engaged in legal reasoning. This approach may be interesting for neurologists, but has as yet little relevance for lawyers. Another approach would be to investigate which mental processes are involved in the process of reaching a decision in a legal case (Hogarth, 1971; Crombag et al., 1977; Koppen and de Keijser, 2002). A third way to look at legal reasoning is to study the argumentation by means of which a legal conclusion is supported. It is not necessarily so that the arguments adduced for a legal conclusion reflect the mental process through which this conclusion was reached. In this connection it is customary to distinguish between the context of discovery and the context of justification. The context of discovery deals with the psychological side of legal reasoning, while the context of justification concerns the justification of legal conclusions. Often the context of justification is identified with the arguments produced for a conclusion, but these arguments can also have a function other than to justify their conclusions, namely to make a legal decision acceptable for the parties involved (Witteveen, 1988).

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