Making Moves: Legal Reasoning

• Author: Allan C. Hutchinson
• Pages: 109-128

It seems that whole libraries, or at least large tracts of them, have

been written about the mysterious concept and practice of legal rea-

soning. Although there has been much “toing-and-froing” around the

matter, the common wisdom still prevails that, as Chief Justice Coke

(said “Cook”) put it in the seventeenth century, there is an “artificial

Reason and Judgment of Law which requires long Study and

Experience before a Man can attain to the Cognizance of it.” Law has

its own special form of reasoning that distinguishes it in some impor-

tant way from other disciplines and from other forms of reasoning

(economic, scientific, logical, political, or sociological). However, like

all reasoning, legal reasoning is a process of argumentation by which

it is possible to infer or move from one already accepted proposition

to another that has yet to be accepted. As a normative exercise, it is

not an empirical matter of truth or falsity: it is about persuasion and

being convinced about the validity of any such reasoning manoeuvre.

Accordingly, reasoning is less a demonstration of logical necessity

and more a practice of human justification.

making moves

legal reasoning

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As central as it is to the whole legal enterprise, the precise identity or

nature of legal reasoning still remains elusive; it defies simple classifi-

cation or easy analysis. As with much else in law, there is a fiery debate

over how special or different law’s reasoning is. As I tried to explain in

chapter 2, some authorities contend that there is a meaningful and

distinct identity to law’s mode and deployment of reasoning, while

others argue that, shorn of its legal nomenclature and dressing, it is

simply a general and non-specific style of reasoning that lawyers and

courts have colonized and become particularly adept at. Of course,

legal reasoning is distinctive to the extent that it works on a particular

set of materials (e.g., cases and statutes), is framed in a professional

jargon (e.g., stare decisis and obiter dicta), and is engaged in by a

restricted community of professionals (e.g., lawyers and judges).

Nevertheless, the claim often made is that legal reasoning not only is

special in its formal attributes but also is capable of providing “one

right answer.” The competing viewpoints are captured by the tradition-

al Edward Levy and the critical Duncan Kennedy:

The contrast between logic and the actual legal method is a disserv-

ice to both. Legal reasoning has a logic of its own. Its structure fits

it to give meaning to ambiguity and to test constantly whether the

society has come to see new differences or similarities. Social theo-

ries and other changes in society will be relevant when the ambigu-

ity has to be resolved for a particular case. Nor can it be said that the

result of such a method is too uncertain to compel. The compulsion

of the law is clear; the explanation is that the area of doubt is con-

stantly set forth. The probable area of expansion or contraction is

foreshadowed as the system works. This is the only kind of system

which will work when people do not agree completely.

Teachers teach nonsense when they persuade students that legal

reasoning is distinct, as a method of reaching correct results, from eth-

ical and political discourse in general (i.e., from policy analysis). It

is true that there is a distinctive lawyers’ body of knowledge of the

rules in force. It is true that there are distinctive lawyers’ argumen-

tative techniques for spotting gaps, conflicts, and ambiguities in the

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