An Introduction to Legal Reasoning
E H Levi
Law is a system of known rules applied by a judge is
a pretence long under attack.
In an important sense legal rules are never clear, if it
had to be clear to be applied society would be
impossible.
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Legal mechanism accepts differences of views and
ambiguities of words
1. Allow the community to participate in resolving the
ambiguities by providing a forum for discussion of
policy in the gap of ambiguity.
2. On controversial issues it makes it possible to take
a first step in a direction of what otherwise would
be forbidden ends.
3. Mechanism indispensable to peace in a community.
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Reasoning by Example – Doctrine of
Precedent
1. Proposition descriptive of the first case is made
into a rule of law and applied to a next similar
situation.
2. Rules change from case to case and is an
indispensable dynamic quality of law.
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3. Meaning and scope of rule of law depends upon a
determination of what facts will be considered
similar to those present when the rule was first
announced.
4. Finding similarity or difference is the key step in
the legal process. Function of the judge.
5. In case law, and there is no statute, he is not
bound by the statement of the rule of law
made by the prior judge even in the controlling case.
Why?
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The statement is mere dictum. The judge in the
present case may find irrelevant the existence
or absence of facts prior judges thought
important.
6. It is not what the prior judges intended that is
important, but what the present judge
attempting to see the law as a fairly consistent
whole, which should be determining. The
doctrine of dictum forces him to make his own
decision.
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7. The legal process is not the application of
known rules to diverse facts. It is a system
of rules discovered in the process of
determining similarity or difference.
8. To treat different cases as similar : Justice ?
A working legal system must pick out key
similarities and to reason from them to the
justice of applying a common
classification.
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9.
Reasoning is present. From closed system point
of view it is imperfect, but yields insight.
Classification changes as the classification is
made : Legal reasoning.
Rules changes as they are applied. Rules arise
out of a process which, while comparing fact
situations, creates the rules and then applies
them.
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10. All reasoning is similar. Legal reasoning must be
like so in order to permit the infusion of new
ideas. New situations will arise and wants
change over time. The categories used in legal
reasoning must be left ambiguous.
11. This is true of legislation and constitution. New
meanings will emerge. Agreement on any other
basis is impossible. Laws come to express the
ideas of the community.
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12. Process is important. Whether law is certain,
unchanging, expressed in rules, or otherwise
only a technique for deciding specific cases is
besides the point. It is both. The law is a
moving classification system.
13. The forum of law protects the parties and the
community by ensuring that competing analogies
are before the count. The rule that is created
whereby different things are treated similarly, at
least the differences have been urged.
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14. The parties and the court participate in the law
making. Lawyers represent more than the
litigants.
15. Reasoning by example in law indicates the
hold which the law process has over litigants.
They have participated in law-making.
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16. The examples and analogies urged by the
parties bring into law the common ideas of
society. The ideas have been heard in court,
and again this makes it fair. Not an
impartial judge.
17. Ideas first rejected, may win acceptance, be
modified, tied to other ideas, they control legal
decision whether correct or not. Erroneous
ideas can shape the law.
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18. Ideas adopted by a court reflects the power
structure of the community. But reasoning by
example will modify it once it has been
adopted.
19. In case, statute, and constitution law
1. ambiguity is present in all.
2. Court’s view is dictum. Legislature’s view is
the statute requires interpretation of intention.
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- remarks of judge is directed toward describing
legislative category. Courts are less free in
applying a statute than case law.
- interpretation of legislative intent is
impossible due to division of function
between court and legislature.
- Courts are less free in interpreting
legislation. This is reflected in frequent
appeals to the constitution as a necessary
justification for overruling cases.
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20. A written constitution allows a court greater
freedom than it has with case law or statute.
The constitution sets up the conflicting ideas of
the community in certain ambiguous categories.
These categories have satellite concepts. But the
courts may shift the course of these concepts :
1. by realigning cases 2. by going back to overall
ambiguous category in the document.
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The constitution permits the court to be
inconsistent. The freedom is concealed as (1) a
search for the intentions of the framers (2) a proper
understanding of a twining instrument. (3) or both.
21. Legal concepts continue to change. Legal theories
are not an exact reflection of social theories. The
emphasis is on the process. It’s structure fits it to
give meaning to ambiguity and to test constantly
whether the society has come to see new
differences and similarities.
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Law compels because the area of doubt is
constantly set forth. It is the only system that
can work when people do not completely
agree. The loyalty of the community is
directed toward the institution in which it
participates.
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22.
To find complete agreement before the
institution goes to work is meaningless. The
institution of legal reasoning is purposely
fashioned to work in such a manner. World
community suffers in the absence of law.
Legal process evolves because it happens, not
because of intervent on & imposition. The
result of human actions but not of human
design.
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