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What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are thoroughly and critically examined in Legal Reasoning and Legal Theory, now with a new and up-to-date foreword. Its clarity of explanation and argument make this classic legal text readily accessible to lawyers, philosophers, and any general reader interested in legal processes, human reasoning, or practical logic.
Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.
Methods of Legal Reasoning describes and criticizes four methods used in legal practice, legal dogmatics and legal theory: logic, analysis, argumentation and hermeneutics. The book takes the unusual approach of discussing in a single study four different, sometimes competing concepts of legal method. Sketched this way, the panorama allows the reader to reflect deeply on questions concerning the methodological conditioning of legal science and the existence of a unique, specific legal method.
In a book that is a blend of text and readings, Martin P. Golding explores legal reasoning from a variety of angles—including that of judicial psychology. The primary focus, however, is on the ‘logic’ of judicial decision making. How do judges justify their decisions? What sort of arguments do they use? In what ways do they rely on legal precedent? Golding includes a wide variety of cases, as well as a brief bibliographic essay (updated for this Broadview Encore Edition).
This book seeks to examine the relations that obtain between law and a theory of law and legal reasoning and a theory of legal reasoning.
This book is a selection of articles and chapters published over Martin Golding's academic career. Golding's approach to the philosophy of law is that it contains conceptual and normative issues and in this volume logical issues in legal reasoning are examined, and various theories of law are critically discussed. Normative questions are dealt with regarding the rule of law and criminal law defenses, and the concept of rights and the terminology of rights are analyzed. Much of Golding's work is critical-historical as well as constructive. This volume will prove an informative and useful collection for scholars and students of the philosophy of law.
Legal theorists consider their discipline as an objective endeavour in line with other fields of science. Objectivity in science is generally regarded as a fundamental condition, informing how science should be practised and how truths may be found. Objective scientists venture to uncover empirical truths about the world and ought to eliminate personal biases, prior commitments and emotional involvement. However, legal theorists are inevitably bound up with a given legal culture. Consequently, their scholarly work derives at least in part from this environment and their subtle interaction with it. This book questions critically, in novel ways and from various perspectives, the possibilities of objectivity of legal theory in the twenty-first century. It transpires that legal theory is unavoidably confronted with varying conceptions of law, underlying ideologies, approaches to legal method, argumentation and discourse etc, which limit the possibilities of 'objectivity' in law and in legal reasoning. The authors of this book reveal some of these underlying notions and discuss their consequences for legal theory.
This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
Is legal reasoning rationally persuasive, working within a discernible structure and using recognisable kinds of arguments? Does it belong to rhetoric in this sense, or to the domain of the merely 'rhetorical' in an adversative sense? Is there any reasonable certainty about legal outcomes in dispute-situations? If not, what becomes of the Rule of Law? Neil MacCormick's book tackles these questions in establishing an overall theory of legal reasoning which shows the essential part 'legal syllogism' plays in reasoning aimed at the application of law, while acknowledging that simple deductive reasoning, though always necessary, is very rarely sufficient to justify a decision. There are always problems of relevancy, classification or interpretation in relation to both facts and law. In justifying conclusions about such problems, reasoning has to be universalistic and yet fully sensitive to the particulars of specific cases. How is this possible? Is legal justification at this level consequentialist in character or principled and right-based? Both normative coherence and narrative coherence have a part to play in justification, and in accounting for the validity of arguments by analogy. Looking at such long-discussed subjects as precedent and analogy and the interpretative character of the reasoning involved, Neil MacCormick expands upon his celebrated Legal Reasoning and Legal Theory (OUP 1978 and 1994) and restates his 'institutional theory of law'.
New to English law? Need to know how rules are made, interpreted and applied? This popular and well-established textbook will show you how. It simplifies legal method by combining examples with an account of rules in general: the who, what, why and how of interpretation. Starting with standpoint and context, it identifies factors that give rise to doubts about the interpretation of a rule and recommends a systematic approach to analysing those factors. Questions and exercises integrated in the text and on the accompanying website will help you to develop skills in reading, interpreting and arguing about legal and other rules. The text is fully updated on developments in the legislative process and the judicial interpretation of statutes and precedent. It includes a new chapter on 'The European Dimension' reflecting the changes brought about by the Human Rights Act 1998.