A book claiming to rethink legal reasoning would seem to be one making a very bold, if not arrogant, claim. And so the first observation to be made about my new work — Rethinking Legal Reasoning (Edward Elgar, 2018) — is that ‘rethinking’ should perhaps be viewed more modestly. It ought, at least with regard to this new title, to be understood as just a different way of viewing legal reasoning.
A second preliminary observation is that the book is intended to complement to some extent my earlier book with the same publisher — A Short Introduction to Judging and to Legal Reasoning (Edward Elgar, 2016) — although the two books are equally designed to be independent of each other. How is the approach different? Perhaps in adopting, first of all, a diachronic orientation, for the first three chapters are responses to what might be called the Donald Kelley question. This Renaissance and legal historian wrote that in order to understand what history is one must first ask what it has been. What, then, has legal reasoning been?
In response to this question, the first chapter focuses on the medieval Italian jurists and their glosses and commentaries on Roman law. The argument is that it is the reasoning processes of these jurists that formed the direct historical basis for several particular characteristics of legal reasoning as it is today. The chapter discusses in some depth the dialectical and hermeneutical methods of these jurists and the use of divisio and distinctiones in order to solve both contradictions within the Roman sources themselves and the mass of factual problems and disputes that were relevant to the medieval period. The epistemological impact on legal thought of Aristotle’s rediscovered writings is also noted, as are the political and social issues which were theorised through the use of Roman law concepts.
The second chapter looks backwards from the medieval jurists to Roman law itself. The structural importance of the institutional scheme of persons (personae), things (res) and actions (actiones) is discussed as is the use of genus and species as the general basis of Roman law taxonomy. The chapter then goes on to examine in considerable depth the actual reasoning methods and techniques employed by the Roman jurists together with the philosophical and theory contexts in which this reasoning functioned. The relationship between these reasoning techniques and legal literature and texts is equally considered. The chapter aims to highlight several institutional and epistemological characteristics: for example the importance of the legal action (actio) as a starting point for reasoning at a case law level and the reluctance to see the source of law as existing in a set of abstract rules (regulae iuris).
The third chapter looks forwards from the medieval jurists to the centuries following on from the end of the Middle Ages up to present times, namely from the sixteenth century onwards. This century experienced what is often called the Humanist Revolution. As the chapter points out, the humanist jurists adopted a very different approach to the Roman texts in as much as they no longer saw these sources as timeless authorities emanating ultimately from God but as historical documents. They thus developed an historical methodology towards the Roman texts in order to be able to identify the actual (rather than altered) writings of the classical jurists whom they considered to be true legal scientists. They also brought to bear on the Roman sources ‘scientific’ thinking which involved a reorganisation of the Digest along systematic lines (following the order of the Institutes) together with, in the hands of Doneau, an orientation founded on the notion of a ‘subjective right’ (quod nostrum est). These humanists were regarded as the first ‘modern’ lawyers and in subsequent centuries their rationalised thinking was developed by jurists into an axiomatic approach to law finding expression in the civil codes of Europe. In addition, the humanist jurists emphasised the importance of interpretation (interpretatio), developing many of the techniques in use today. The chapter then goes on to examine the historical development of the common law, a tradition of legal thinking that functioned outside of the Roman learning (at least until the nineteenth century).
In the fourth chapter the aim is to identify what might be called institutional models or focal points for legal reasoning which have emerged out of the history of legal thought and reasoning. Six such models present themselves: they are the rule model, the interpretation model, the rights model, the interest model, the policy model and the remedies model. These models appear to be well entrenched in common law judicial reasoning, due no doubt, at least in part, to the influence of Roman legal ‘science’ on the common lawyers following the abolition of the forms of action. Each model is discussed in some depth.
The fifth chapter continues the reflection on the legacy bequeathed by the history of legal reasoning in looking at the long relationship between reasoning and legal texts. These texts can be broadly classified into two groups: there are those designed for practitioners and professionals and those aimed at students. This reflects a distinction between the teaching and practice of law. One major theme or artefact within this literary legacy – and one that links the teaching books with the practitioner works – is legal taxonomy. Those who teach the law have strived towards a universalist outlook while the professional and practitioner have had on the whole much less interest in the rationalisation of law. This chapter thus examines the relationship between legal taxonomy (mapping the law), legal problem-solving and legal reasoning. It looks in particular at the influence of the civilian principle of unjust enrichment on common lawyers and on the debates that this influence has provoked. The chapter also discusses the role and importance of empirical categories.
In the sixth 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.
Chapter seven is the first of two chapters in which legal reasoning is compared with, or to, reasoning in other disciplines. Stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. The chapter argues that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Following on from a discussion in the previous chapter (Chapter six), it is argued that lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.
The second chapter (chapter eight) on comparison examines reasoning in film studies with the aim of investigation whether the work in this discipline has any useful lessons for jurists interested in their own reasoning. After a general discussion about the epistemological difficulties to be encountered with such a comparative undertaking, the chapter looks at several theories that might be said to have been developed within literary and film studies: these are personification theory (which involves a long discussion of the Hitchcock film Vertigo), representation theory and reception theory. It will be argued that these theories have relevance for legal reasoning. However it will also be suggested, via the various discussions on interpretation and theory, that legal reasoners might have lessons that are useful for those involved with film scholarship.
Taking its cue from Walter Jones’ 1940 monograph on the history of legal theory – one of whose chapters is entitled The Fiction Theory – the ninth chapter examines the credibility of such a theory with respect to legal reasoning. Of course much depends upon how one defines fiction, but if one adopts Hans Vaihinger’s philosophy of ‘as if’ as an ‘epistemic attitude’ and applies it to legal reasoning the thesis can be defended. Many of the notions and concepts used in legal reasoning can be seen as fictional creations (res cogitatione fictae) and the inferential techniques seemingly used by jurists (induction and deduction) can be exposed as rather artificial constructions. Interpretation and taxonomical techniques – for example when reasoners resort to the use of imagery and metaphor – can equally be shown to be dependent upon narratives and categories that are ‘as if’ creations. In short, ‘reality’ in legal reasoning often turns out to be very elusive.
By way of conclusion with respect to the Chapters one to nine, what chapter ten 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 does not as such dispute the authors’ central thesis that the existence of special forms of reasoning in law is false, but it argues that a social science epistemologist would find their analysis at best inadequate. It is 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. The authority paradigm is discussed, briefly, in the General Introduction to this book.
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 four). 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 (chapter eleven) the notion itself is examined and then analysed from the position of the legal subject (persona), legal object (res) and legal remedy (actio).
In the second chapter on the notion of an interest (chapter twelve) some of the points outlined or mentioned in the previous chapter are developed in more depth. In particular the role of an interest within the civilian principle of an abuse of a right and within injunction, debt and damages claims, including claims involving the rule against penalty clauses. Various sectional interests are also be discussed. The chapter concludes with a résumé of the reasons why interests should be taken more seriously and why the notion can provide a means for rethinking legal reasoning.
The concluding remarks do not constitute a chapter as such. They are simply a résumé of the principal points inherent in the previous chapters and in the separate Elgar publication by the present author, namely A Short Introduction to Judging and to Legal Reasoning (Edward Elgar, 2016), together with some further concluding ideas. There is some discussion of Professor Lasser’s notion of an official and unofficial portrait of French law, a dichotomy employed in the Short Introduction book in respect of English legal reasoning. And this is followed by short discussions on the two principal conclusions; these are of course Vaihinger’s ‘as if’ fiction theory (Chapter nine) and the importance of the notion of an interest (Chapters eleven and twelve). Finally, a further conclusion is suggested. This is that legal reasoning, and indeed law as a discipline, is underpinned by a number of epistemological tensions which are implicitly (if not explicitly on occasions) always present; and it is unlikely that they will ever to be ‘solved’ as such. For these tensions are part of the nature of law as a discipline.
It may well be that the book will attract criticism that it does not engage with many of the major doctrinal theses that have been proposed with regard to legal reasoning. However the aim of the book is to ‘rethink’ legal reasoning and thus to devote most of its space to offering viewpoints and models that are different from those that have been advanced in the past (always bearing in mind that most ‘new’ ideas are not new at all). In particular it emphasises the importance of a diachronic approach as a starting point and a comparative analysis — that is to say a comparison with reasoning in other disciplines — when it comes to a synchronic approach. In its coverage of both the civil law and the common law, this book on legal reasoning can also be regarded, at a general level, as a work on comparative law. Yet if there is one message that can be conveyed to the contemporary reader it is that the extremely rich history of law as a knowledge discipline — a history that goes back to Rome if not before — deserves far more attention than perhaps degree courses in law allow at present (both in the common law and civil law worlds). Studying jurists such as Ulpian, Bartolus, Baldus, Doneau and Cujas will probably offer more insights into legal thought and reasoning than studying any contemporary jurist. Nihil novi in mundo, as a Post-Glossator might say if visited by Dr Who travelling back from some adventure in a contemporary law school.
Posted by Professor Geoffrey Samuel (Kent)
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