Demystifying Legal Reasoning

by Larry Alexander , Emily Sherwin

• ISBN13: 9780521703956
• ISBN10: 0521703956
• Edition: 1st
• Format: Paperback
• Copyright: 2008-06-16
• Publisher: Cambridge University Press

Summary

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

Author Biography

Larry Alexander is a Warren Distinguished Professor of Law at the University of San Diego School of Law. He is the author of Is There a Right to Freedom of Expression? (Cambridge, 2005); (with Emily Sherwin) The Rules of Rules: Morality, Rules, and the Dilemmas of Law (2001); Constitutionalism: Philosophical Foundations (Cambridge, 1998); (with Paul Horton) Whom Does the Constitution Command? (1988); several anthologies; and more than 160 articles, book chapters, and review essays in jurisprudence, constitutional law, criminal law, and normative ethics. He has been a member of the faculty at the University of San Diego School of Law since 1970. He is coeditor of the journal Legal Theory (Cambridge), and he serves on the editorial boards of Ethics, Law and Philosophy, and Criminal Law and Philosophy. He is co-executive director of the Institute for Law and Philosophy at the University of San Diego, and he is past president of Amintaphil. Emily Sherwin is Professor of Law at Cornell Law School. She specializes in jurisprudence, property, and remedies. She is the author (with Larry Alexander) of The Rule of Rules: Morality, Rules, and the Dilemmas of Law (2001) and has published numerous book chapters, articles, and reviews in her subjects of specialty. She was a member of the faculty at the University of Kentucky College of Law from 1985 to 1990 and the University of San Diego School of Law from 1990 to 2003, when she moved to Cornell University. She is a member of the advisory committee for the American Law Institute's Restatement (Third) of Restitution and Unjust Enrichment and a regular participant in roundtable conferences of the University of San Diego's Institute for Law and Philosophy.

Table of Contents

Introduction	p. 1
Law and Its Function
Settling Moral Controversy	p. 9
Common-Law Reasoning: Deciding Cases When Prior Judicial Decisions Determine the Law
Ordinary Reason Applied to Law: Natural Reasoning and Deduction from Rules	p. 31
The Mystification of Common-Law Reasoning	p. 64
Common-Law Practice	p. 104
Reasoning from Canonical Legal Texts
Interpreting Statutes and Other Posited Rules	p. 131
Infelicities of the Intended Meaning of Canonical Texts and Norms Constraining Interpretation	p. 167
Nonintentionalist Interpretation	p. 191
Is Constitutional Interpretation Different? Why It Isn't and Is	p. 220
Epilogue: All or Nothing	p. 233
Selected Bibliography	p. 237
Index	p. 247
Table of Contents provided by Ingram. All Rights Reserved.