Samuel, Geoffrey (2009) Can Legal Reasoning be Demystified? Legal Studies, 29 (2). pp. 181-210. ISSN 0261-3875.
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The purpose of this paper is to examine a new work on legal reasoning by two American jurists whose aim is to ‘demystify’ it. The paper will not dispute the authors' central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be 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 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 inquiry paradigm. The problem with works by legal philosophers on legal reasoning is, it will be implied, that they are often conducted from within the authority paradigm and that this, in the end, prevents any demystification.
|Divisions:||Faculties > Social Sciences > Kent Law School|
|Depositing User:||Eve Dyer|
|Date Deposited:||05 Dec 2010 14:24|
|Last Modified:||04 Sep 2012 09:57|
|Resource URI:||http://kar.kent.ac.uk/id/eprint/24935 (The current URI for this page, for reference purposes)|
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