8 - Legal reasoning and argumentation

Summary

Reasoning in adjudication

It is sometimes said that the main aim of legal education is to develop skills of ‘thinking like a lawyer’, including skills of legal reasoning. This phrase is often taken to imply that all lawyers think; that they only think about questions of law in the context of adjudication; that there is a single correct way of thinking about such questions; and that this way of thinking is unique or special to lawyers. An alternative view challenges each of these assumptions: that lawyers' reasonings extend far beyond binary questions of law in adjudication to a wide variety of legal contexts and operations; that what constitute valid, cogent, and appropriate modes of reasoning in each kind of context, and how far rationality is attainable, is contested; that the relevant skills of reasoning involved are not a lawyers' monopoly, for in practical life everyone interprets and applies rules, negotiates, and weighs evidence and nonlawyers are regularly involved in many kinds of legal operations and contexts, for example as jurors and lay magistrates. There may be special local considerations that apply in particular legal contexts, such as rules of precedent or evidence or procedure, but the basic criteria of validity and cogency for all of these operations can be subsumed under one or other general theory of practical reasoning. This article proceeds on assumptions that are closer to the second view but, for reasons of space, it focuses mainly on reasoning about questions of law and questions of fact in adjudication.