Instead, a philosophical theory of judicial reasoning is an attempted explanation, at a particular level of description,9 of the reasoning employed. Answering such questions is the business of a theory of legal reasoning. Mar, 2016 legal reasoning simply concerns itself with learning how to think like a lawyer. While particularly relevant to the tasks of lawyers and judges, the requirements of legal reasoning also affect the legislator because addition of new rules or modification of existing ones needs to be. This handbook addresses legal reasoning and argumentation from a logical, philosophical and legal perspective. The main forms of legal reasoning and argumentation are covered in an exhaustive and critical fashion, and are analysed in connection with more general types and problems of reasoning. Casebased models of legal reasoning in a civil law context. Legal reasoning and legal theory clarendon law series maccormick, neil on.
Legal aptitude answers are highlighted in bold letters questions from law entrance examinations conducted by various law schools and law colleges are included 1. These questions are central to the study of jurisprudence, and are critically examined in this book. Aug 05, 2016 legal reasoning is a method of thought and argument used by lawyers and judges when applying legal rules to specific interactions among legal persons. Drawing principally on his knowledge of english and scots law maccormick. The first part describes a model of legal reasoning based on a twolayered view of the law. A theory of legal reasoning and a logic to match springerlink. Legal reasoning is a reasonable reasoning before the decision had been made.
Pdf in this work i address a particular aspect of maccormicks revised theory of legal reasoning, namely. One of the most elaborate statements of natural law theory can be found in. Theories of law natural law, legal positivism, the. An introduction to legal reasoning chicago unbound. Legal reasoning and legal theory oxford scholarship. Reasoning from either rules or principles must always involve some process of interpretation, so how does interpretive reasoning enter into the practical reason of law. Apr 10, 2020 if you are looking for rs aggarwal reasoning book free pdf download link, you have come to right place. Natural law, legal positivism, the morality of law dworkins third theory of law legal realism and critical legal studies 1. A theory of legal reasoning requires and is required by a theory of law. The american legal realists brought special attention to the problems with deriving rules from opinions for an overview, see, e. What is legal reasoning and how to apply it correctly.
Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences. Legal reasoning is uniquely important as no entrant studies law. As its opening sentence states, this is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the constitution. Bhardwaj is the author of legal aptitude for the clat workbook 3. This free course, legal skills and debates in scotland, considers how laws are interpreted and applied. Aug 31, 2018 the knowledge that emerges from the social science reasoning processes depends upon the schemes of intelligibility employed, the inferential reasoning techniques applied, the level of observation adopted, 4 the theory brought into play and the paradigm orientations that inform these schemes and reasoning techniques. Legal reasoning and legal argumentation, from a practitioners point of view, is at one level relatively easy to describe and to define. What legal reasoning is, and why it matters legal reasoning is the way lawyers and judges talk publicly about the law. For more than a century, lawyers have writ ten about legal reasoning, and the flow of books and articles describing, analyzing, and. Since its first appearance in 1979, this work has established itself as a classic of legal philosophy. Unlike the other sections on english, reasoning and general knowledge, legal reasoning problems test the legal sense and aptitude of the entrants. A model of legal reasoning with cases incorporating theories. Legal reasoning is to be understood as a form of practical reasoning concerning these very issues.
Maccormick provides a critical analysis of the dworkin position while also modifying harts. Care has been taken to make the legal elements of the book readily accessible to nonlawyers, and the philosophical elements to nonphilosophers. Interpretation and coherence in legal reasoning stanford. It looks at legislation, court judgments, argument, judicial reasoning and rights.
Legal reasoning, writing, and other lawyering skills. Use the forms of legal reasoning to argue whether or not a university table tennis club has violated the universitys rule against hazing. Legal reasoning and interpretation routledge encyclopedia. Theories of law natural law, legal positivism, the morality. Thomas aquinas and natural law theory natural law theory like legal positivism has appeared in a variety of forms and in many guises. Legal realists generally advocated a less abstract and more pragmatic approach to the law, an approach that would take into.
It also recognizes that dworkins critique of positivists for having concentrated to excess on one type of legal standards, legal rules, makes a very palpable hit. Emphasis is placed initially on the techniques of briefing as an introduction to the learning of legal reasoning, the first priority of the first year of law school. Legal rules, legal reasoning, and nonmonotonic logic by. Legal reasoning and legal theory clarendon law series. Surely if anything matters in our attempts to understand law, it matters how judges do andor should decide cases, and that we have an account which adequately explains and can perhaps be used to guide or justify their activities. However, i highly recommend buying rs aggarwal reasoning book if you are serious for your exams. Reasoning with cases has been a primary focus of those working in ai and law who have attempted to model legal reasoning. In this work i address a particular aspect of maccormicks revised theory of legal reasoning, namely, the way his latest views on legal argumentation carry implications for the concept of law.
The principles interact with the rules, underpin them, hedge them in, qualify them, justify the enunciation of new rulings as tested out by consequentialist. Bertea, law and legal reasoning, northern ireland legal quarterly 59, 2008, 419 has espoused since his seminal work on legal reasoning, and this is the thesis by w hich a. The jurisprudential part of this dual theory must be acceptable as an idealised reconstruction of legal practice, while the logical part must match our intuitive understanding of valid reasoning. Originally published in 1949, an introduction to legal reasoning is widely acknowledged as a classic text. This book is a selection of articles and chapters published over martin goldings academic career. Legal reasoning and approach to problems the jet lawyer. Legal reasoning legal reasoning is the particular method of arguing used when applying legal rules to particular interactions among legal persons. Harts the concept of law, it claims that a theory of law like harts requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. Goldings 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. A school of legal thought that as popular in the 1920s and 1930s and that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in a judicial reasoning. The first layer consists of principles and goals that express fundamental ideas of a legal system.
Legal reasoning required us to consider the criteria beyond those imposed by the strict necessity of logic. Roberts goulds essay 15 a classroom illustration of the analytic challenge 17 notes 22. A satisfactory theory of legal reasoning requires and is required by a satisfactory theory of law. It stands firmly on its own as a contribution to an extensive. The scientific study of law jurisprudence firs t started among a romans b greeks. Legal reasoning is all about thinking like a lawyer in a given situation. Legal reasoning and legal theory revisited springerlink. This study focuses on current jurisprudential debate between the positivist views of herbert hart and the rights thesis of ronald dworkin. Buy legal reasoning and legal theory, by neil maccormick, isbn 9780198763840, published by oxford university. Formalism formalism is the application of an existing rule of law by its terms to a set of facts. Legal writing is challenging, in part, because the clarity and effectiveness of the. Lev, this i is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the constitution.
Surely if anything matters in our attempts to understand law, it matters how judges do and or should decide cases, and that we have an account which adequately explains and can perhaps be used to guide or justify their activities. In addition, the book also demonstrates the relevance of more advanced modes of legal reasoning, including positivist, pragmatic, policy oriented, naturallaw and other. Anyone reflecting on the methodology of legal reasoning faces a difficult task. Neil maccormick description this is an interdisciplinary course drawing on material from the separate. Pdf legal reasoning and legal theory deep kapadia academia. The subject of legal reasoning appears to occupy the more practical end of the spectrum of jurisprudential theorising. The number of methodological theories in jurisprudence and the vast literature on the subject are not the only problems that have to be taken into account. Legal reasoning and legal theory, by neil maccormick osgoode.
Bhardwaj author of legal aptitude for the clat workbook. This legal language gives us the tools to tell the difference between impartial and partisan legal decisions. In this paper we put forward a formal model of reasoning with cases which captures many of the insights from that previous work. Yet a theory using those principles misses the mark, as it ignores too much of judicial practice. Can legal decisions be justified by purely rational argument or are they ultimately determined by more.
Chapter 10 kelsens theory of law 155 chapter 11 the integrity and interpretation of law 173 chapter 12 social theory and law 191 chapter marx, marxism and marxist legal theory 215 chapter 14 liberalism and law 235 chapter 15 feminist legal theory 247 chapter 16 critical legal studies 267 chapter 17 critical race theory 289. Legal reasoning as unique 5 beyond text and context 6 legal reasoning as art 7 legal reasoning as angst 8 developing and applying a model 9 notes 10 chapter one the challenge of calling balls and strikes. Handbook of legal reasoning and argumentation springerlink. University of michigan law school university of michigan. Handbook of legal reasoning and argumentation giorgio. It is important that the mechanism of legal reasoning should not be concealed by its pretense. Reasoning by precedentbetween rules and analogies legal. This study focuses on current jurisprudential debate between. Legal reasoning and legal theory neil maccormick oxford university press. If we had such a useful, normative method, it would surely be. Llb entrance legal aptitude model question paper with answers. Methods of legal reasoning jerzy stelmach springer.
In order to fully understand legal reasoning, the language of the law would first be highlighted, there would be definition of some key terms and finally, the different methods of legal reasoning would be discussed. Thus, this book teaches and illustrates the underlying skills of legal reasoning and analysis that are integral components of effective legal writing. Chapter 10 kelsens theory of law 155 chapter 11 the integrity and interpretation of law 173 chapter 12 social theory and law 191 chapter marx, marxism and marxist legal theory 215 chapter 14 liberalism and law 235 chapter 15 feminist legal theory 247 chapter 16. Legal reasoning in the case of a courts ruling is found in the discussion or analysis section of the judicial ruling. It is here that the court gives reason for its legal ruling, and it helps other courts, lawyers and judges to use and. Learn vocabulary, terms, and more with flashcards, games, and other study tools. This handbook addresses legal reasoning and argumentation from a logical, philosophical. It has followed certain criteria or rules which applied in practical reasoning. Legal reasoning and legal theory neil maccormick oxford. Legal reasoning, legal theory and rights 1st edition. This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. This article deals with the relation between a theory of law and a theory of legal reasoning.
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