Legal Reasoning And Argumentation Research Paper

Reasoning in adjudication is a focal point for some perennial problems of legal philosophy, including contested questions about epistemology, rationality, and skepticism; differing conceptions of law and justice; the relations between law and morality; formalism; the role of judges in a democracy; official discretion; and transparency in decision-making.

According to one view, a question of law is easy or straightforward if a justification for a decision can be rationally reconstructed in the form of a simple syllogism:

Major premise: Whenever X happens, then Y ought to happen (Rule (R)).

Minor premise: X happened (Facts (F)).

Conclusion: Therefore Y ought to happen (Judgment of guilt, liability etc.).

This model of legal reasoning has often been dismissed as ‘mechanical’ jurisprudence, because most problems of interpretation arise in relation to doubts about the formulation and precise interpretation of the major premise (R) and the categorization of the facts in the minor premise (F). However, this is precisely the form in which justifications for decisions in ‘easy’ or ‘clear’ cases can be rationally reconstructed.

What if the major premise or the minor premise requires justification? There is quite widespread, but not universal, agreement among jurists that deduction has only a limited role in such second order justification of R (legal propositions) and in inferential reasoning from evidence about disputed issues of fact (F). For example, the standard alibi defense can be reconstructed in the form of two linked syllogisms:

No person can be in two different places at the same moment of time.

A was in a different place when this crime was committed.

Therefore A was not physically present when this crime was committed.

It is necessary for a person to be physically present to be guilty of this crime.

A was not physically present when this crime was committed.

Therefore A is not guilty of X.

Insofar as deduction plays a limited role in justifying R or F, the reasoning involved does not lead to necessary conclusions (‘open system reasoning’).

2. A Rationalist Model Of Reasoning In Adjudication

Orthodox rationalist views about reasoning in adjudication can be reconstructed as a model or ‘ideal type,’ which the views of many leading jurists approximate. This model represents a set of basic assumptions about the aims and nature of adjudication and what is involved in valid reasoning about disputed questions of law and of fact in this context.

Aim and Nature of Adjudication

(a) The direct end of adjudication is rectitude of decision, that is the correct application of valid laws to true material facts (facts in issue).

(b) The logic of justification of judicial decisions involves an application of general principles of practical reasoning in a specific context.

(c) A judicial decision is legitimate if and only if it is justified by sound arguments that satisfy the moral requirement of formal justice that like cases should be treated alike.

(d) In clear cases a sound justification satisfies the deductive form: if R, then C; F is a case of R; therefore C.

(e) Doubts can arise about R (e.g., about its validity, its identity, its scope) or about its application to F, or about whether F has been established to the relevant standard of proof, or a combination of these.

(f) Doubts about R give rise to questions of law; doubts about F give rise to questions of fact.

(g) In adjudication both questions of law and questions of fact are typically binary (e.g., liable not liable; guilty not guilty).

Questions of Law

(h) Resolution of questions of law in hard cases requires second-order justification, which may involve different forms of reasoning, notably deduction, induction, reasoning by analogy, or a combination of these.

(i) A number of independent material reasons may be advanced in a single argument for or against a decision of a question of interpretation or application of R. These reasons may be of different kinds.

(j) The validity and cogency of different kinds of material reasons are system-specific; they depend on the rules and conventions of a given system with respect to authoritative sources of law and appropriate modes of argumentation.

(k) Second order justification of R may involve two kinds of reasons: (a) authority reasons which relate to the compatibility or fit of a line of argument with the rules and principles of the system and the authoritative sources recognized by that system (arguments about validity, consistency, and coherence); (b) substantive reasons, which relate to values, goals, or institutional requirements of the system (Summers 1992).

Questions of Fact

(l) Rational determination of the truth of alleged facts (F) in adjudication is typically a matter of probabilities, falling short of absolute certainty.

(m) Judgments about the probabilities of allegations about particular past events can and should be justified by reasoning from relevant and admissible evidence considered by the decision-maker.

(n) Judgments about probabilities, generally speaking, have to be based on the available stock of knowledge about the common course of events.

(o) Rational determination of F is a matter of ordinary common-sense reasoning, as modified by the rules of evidence and procedure of a given system.

2.1 Questions Of Law

Theorists of reasoning about questions of law can be roughly categorized into rationalists and critics. A reasonably representative sample of leading rationalists might include Aulis Aarnio (Finland), Robert Alexy (Germany), Ronald Dworkin (USA Britain), Torstein Eckhoff (Norway), Neil MacCormick (Scotland), Joseph Raz (Israel Britain) and Robert Summers (USA). Although they come from different legal traditions and quite varied intellectual backgrounds, rationalists are in broad agreement on most of the first ten points in the model. Most focus mainly on secondorder justification of adjudicative decisions on questions of law in hard cases, because these are perceived to be the most interesting theoretically. These theorists may differ about which kinds of substantive reasons are valid, about their relative weight or cogency, and whether substantive reasons are an integral part of the law or are extraneous to it. Some jurists in the civil law tradition maintain that all second-order justification can be reconstructed in deductive form, but the predominant view among common lawyers is that this kind of justification involves mainly open system reasoning.

Among rationalists there is a variety of views on material reasons in second-order justification (k). Some differences are matters of emphasis or detail or conceptual refinements, but others are seen as significant. For example, Ronald Dworkin (1977, 1986) has advanced three theses that are regularly disputed: (a) that there is a single right answer to almost every question of law even in very hard cases; (b) that principles of political morality underlying a legal system are an integral part of the law, and are not external to it; (c) that principles of political morality are the only valid substantive reasons for justification in adjudication; policy reasons and other arguments external to the law are not valid. These theses are part of a general theory of adjudication that maintains that legal reasoning is essentially a moral enterprise; the duty of judges in a liberal democracy is to uphold the law and to vindicate rights on the basis of interpretations that make ‘it the best it can be.’

At first glance, Dworkin’s theory is in conflict with standard tenets of legal positivism, especially that (a) a sharp distinction must be drawn between law as it is and law as it ought to be; (b) when the law ‘runs out,’ judges may invoke non-legal reasons, including consequentialist reasons; and (c) in such circumstances judges can, may, and do make law interstitially. However, the differences between Dworkin and other rationalists are narrow. Most rationalists agree that moral arguments play a valid role in legal justifications. If ‘one right answer’ means a solution justified by the strongest conceivable argument, most would accept that it is meaningful to talk of stronger and weaker arguments, and that ties are a rarity even with respect to open-system reasoning.

The rationalist model has been subject to several challenges. First, it is narrow. It does not address modes of reasoning in earlier times or in non-western cultures or in the variety of other legal contexts in which practical reasoning is involved. Interpretation by an upright judge may provide a general model of correct interpretation for other officials and for good citizens, but what constitutes valid, cogent, and appropriate reasoning in adjudication will not be exactly the same for other interpreters. For example, a factory or a tax inspector may appropriately take into account different considerations, and interpret the same law differently from a judge.

Second, skeptics may doubt the possibility of rationality in adjudication or challenge the idea that this represents the only possible, or the most appropriate, model of rationality or that a single model is applicable across cultures. Suggestions that judicial opinions are merely ex post facto rationalizations have been shown to be based on confusion between the logic of justification and the psychology of decision (Wasserstrom 1961). The requirement or expectation that decision-makers should justify their decisions publicly may serve as an institutional constraint or steadying factor that limits arbitrariness or corruption or pure subjectivity (Llewellyn 1962, Raz 1978). Recently, critical and postmodern challengers have argued that rationalist models conceal the fundamental indeterminacy of legal decision-making. For example:

In all the Western systems, the discourse that judges, legal authorities, and political theorists use to legitimate the application of state power denies (suppresses, mystifies, distorts, conceals, evades) two key phenomena: (a) the degree to which the settled rules (whether contained in a Code or in common law) structure public and private life so as to empower some groups at the expense of others, and in general function to reproduce the systems of hierarchy that characterize the society in question; (b) the degree to which the system of legal rules contains gaps, conflicts, and ambiguities that get resolved by judges pursuing conscious, half-conscious, and unconscious ideological projects with respect to these issues of hierarchy. (Kennedy 1997)

The scope of disagreement between rationalists and their critics is easily exaggerated, for few jurists subscribe to extremes of strong philosophical skepticism or of radical indeterminacy on the one hand/or of strict rationalism and objectivity on the other.

A third challenge suggests that the distinction between clear and hard cases is problematic. Are cases inherently hard or easy? Or is it that some cases are merely perceived or treated as easy and others as hard? Cannot a creative lawyer construct arguments that raise doubts about what was previously perceived to be settled? Such skepticism receives prima facie support from a consideration of the many different kinds of doubt that can arise in relation to the interpretation of both legal and non-legal rules (Twining and Miers 1999, Chap. 6). Even in a seemingly simple situation, a single factor can be a starting-point for an argument that raises a doubt about what previously may have been treated as clear or settled or simple; but it does not follow from such indications of potential complexity that in practice every routine or seemingly clear case can easily be treated as hard. There are indeed cases in which a significant development of the law took place because what was previously taken as settled was successfully challenged. But these are ‘leading cases’ just because they were exceptional.

A fourth type of challenge suggests that normative theories of legal reasoning tend to be too abstract and simplistic to catch the complexities and subtleties of actual legal arguments. Judicial opinions that run to many pages are ‘reconstructed’ in just a few propositions. Furthermore, it is often unclear whether the reconstruction is of actual or of possible arguments. Is a reconstruction of a formalistic, ambiguous, or opaque judicial opinion, or of a decision not backed by any public justification (such as jury verdicts at common law), to be regarded as a reconstruction of the actual justification presented, or of the best justification that might have been advanced, or of something else? For example, the discursive style of appellate judges at common law is often contrasted with the more succinct style of French judgments which, it is said, are typically expressed in deductive form. If hard cases require a second order justification that can only exceptionally be deductive, this suggests that French courts typically do not indulge in explicit second order justification.

2.2 Questions Of Fact

The study of evidence and inference has roots in the long history of rhetoric and of probabilities, but interest in reasoning about questions of fact in adjudication has been intermittent. Evidence has received more sustained attention in common law countries than in the tradition of civil law, but there the main focus has been on the Law of Evidence. Notable exceptions include Bentham’s Rationale of Judicial Evidence (1826) and Wigmore’s Science of Judicial Proof (1937). Since 1970 ‘The New Evidence Scholarship’ has been the forum for lively debates about the competing claims of different theories of probability; the thesis that the paradigm case of probabilistic reasoning in adjudication is in principle inductive (Baconian) rather than mathematical (Pascalian) (Cohen 1977); and whether ‘atomistic’ models of rationality can accommodate ‘holistic’ ideas of narrative coherence on which, according to psychological research, decision-making by jurors is predominantly based (e.g., Pennington and Hastie 1991). Such legal concerns are relevant to the study of evidence and inference in other disciplines (Schum 1994).

Here, three points deserve emphasis. First, Anglo-American ideas in this area have recently spread to Continental Europe (e.g., Malsch and Nijboer 1999), but there has been almost no sustained comparison between conceptions of evidence and inference in law in modern Western and other traditions. Second, as with reasoning about questions of law, a high proportion of legal scholarship about evidence and inference in law shares a set of assumptions that approximates to the rationalist model of reasoning in adjudication. Third, these assumptions are similarly open to various skeptical or critical challenges including (a) strong philosophical skepticism about the possibility of knowledge or of rational argument or of objectivity in this context; (b) ideological skepticism about the coherence and tenability of ‘liberal legalist’ ideas about adjudication; (c) skepticism about claims that the main end of adjudication is implementation of law and vindication of rights; (d) legal fact-skepticism about the feasibility of designing institutions, procedures and rules that will, in practice, regularly maximize the probability of achieving correct decisions (Frank 1949); and (e) contextual skepticism about the sense of studying adjudicative decisions outside the broader context of total legal processes and broader social processes. To these might be added further challenges associated with post-modernism, feminism, cultural relativism, and developments in the philosophy of science (Twining 1994).

3. Law And Fact

At first sight, the distinction between law and fact seems simple. ‘What is the scope of this statutory provision?’ is a question of law; ‘What happened on that particular occasion?’ is a question if fact. However, the line is often difficult to draw, especially with regard to the application of rules and the appropriate categorization of a particular fact situation. ‘Was X dishonest?’ or ‘Is this a case of murder?’ could be interpreted as a question of law or a question of fact, or a mixed question of law and fact. How such questions are treated in particular cases varies between systems and among different contexts within the same system for different practical purposes. For example, in English jury cases, questions of law are for the judge while questions of fact are for the jury; decisions on questions of law can have precedent value, but findings of fact do not. Questions relating to appeals, mistake in contract, or the obligation to give reasoned justifications turn on the distinction between law and fact, but where exactly the line is drawn varies according to context. Furthermore, legal cultures differ significantly in the framing of issues in particular disputes as questions of law or of fact (e.g., Dezalay and Garth 1996).

Reasoning about issues of law and of fact have stimulated two largely separate bodies of literature, despite the intimate connection and similarities between them. Both are perceived to be species of practical reasoning with structures that are binary (guilty not guilty, liable not liable) and dialectical (all reasons tend to support or to negate an ultimate proposition or conclusion). The ultimate decision is a normative judgment (e.g., liable not liable). Many questions of fact have normative elements: for example, ‘did X behave reasonably in the circumstances?’ is a question of fact, which involves both evaluative and empirical elements. Categorization of an issue as being of fact or of law can have important practical consequences, and the kinds of reasoning that are deemed appropriate differ; for example, no one has seriously suggested that Bayes’ theorem applies to questions of law, but nevertheless it might be interpreted as providing a suggestive metaphor regarding the combination of judgments based on different kinds of reasons within a single argument. Where decisions on fact, law, and sanctions are the responsibility of a single tribunal, there may be some freedom to consider what is a good solution to the problem of the case as a whole, an option not generally available where responsibility for decisions is divided between judge and jury.

4. Argumentation

Theories of legal reasoning are primarily normative theories. ‘Argumentation’ here refers to the actual discourses used in advancing arguments, including reasonings that are explicitly or implicitly embodied in such discourses, nonrational means of persuasion, and the strategy, tactics and styles of argument. Argumentation can be studied from a wide range of empirical, interpretive, and critical perspectives that apply to social discourse generally including rhetoric, conversation analysis, semantics, and semiotics. See Ethnomethodology: General; Logic and Linguistics; Rhetoric. There has been little sustained research into actual discursive practices of legal actors and, as with the normative literature, most studies have focused on argumentation in adjudication and advocacy.

Most normative theorists claim that their accounts have a more or less close relation to how judges and advocates actually argue. For example, Ronald Dworkin (1986) boldly claims that his theory not only prescribes an ideal, but also describes ‘best practice’ in common-law courts; however this claim is not backed by evidence. MacCormick (1978) uses actual cases from several jurisdictions as illustrations, but his sample is not representative. Some analysis of judicial styles has been based on fairly extensive random samples (e.g., Llewellyn 1962, Wetter 1960), but these studies have not been replicated.

Explicit links between normative theories of reasoning and actual discourses have been both diverse and intermittent. In social theory the most important connection has been Max Weber’s thesis that formal rationalization of law is a concomitant of the rise of capitalism and modernity. Critiques of rationalist theories of adjudication are often part of a more general critique of ‘liberal legalism’ and the Rule of Law (e.g., Kennedy 1997). Closest to the orthodox juristic literature is the neo-Aristotelian ‘New Rhetoric’ of the Brussels School (e.g., Perelman and Olbrechts-Tyteka 1969, and in Germany, Viehweg [1953] 1993), whose central concern is to describe the starting-points (topoi ), argumentation schemes, and material factors that can be deployed to try to convince a specific audience (such as a court) or, more speculatively, a universal audience, to do or to decide something. Sharing some intellectual ancestors with the New Rhetoric but being more empirically oriented, the Amsterdam School of Pragma-dialectics aims to develop a model for the rational analysis and evaluation of legal argumentation as a specific, institutionalized form of argumentation in general (e.g., van Eemeren et al. 1996). This is part of a general effort to develop a model and code of conduct for rational discussants in a conversation intended to resolve disputes. Applied to law, this model sits somewhat awkwardly with robust adversarial argument. The self-imposed limitation of analyzing what is actually said ensures that the approach is quite concrete, but makes it difficult to catch unspoken conventions.

5. Conclusion

There is a rich body of normative theories about reasoning in modern Western adjudication, but more work is needed to integrate the literature on reasoning about questions of law and questions of fact and to extend the focus of attention to other legal operations and other legal traditions. With respect to argumentation, one can agree with two leading theorists that ‘what is needed are reflective hermeneutic studies of the current actuality of reasoning practice in modern legal systems’ (Aarnio and MacCormick 1992).

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