Jurisprudence - Legal Reasoning - Term Paper Example

JURISPRUDENCE-LEGAL REASONING Name Code + Course Name Professor Date Jurisprudence-Legal Reasoning Legal reasoning is different from the reasoning of politicians as judges are constrained by the law. Precedents bind judges while politicians are not. It relies on the comparison and contrasting of a complex set of facts that are understood and organized by means of concepts. Judges can and do covertly depend on political considerations in their legal norms of making decisions. They rely on political reasoning when deciding legal cases. Almost all legal theorists acknowledge that understanding of political theory is often indispensable to the resolution of legal cases. A good case in point in the protection offered by bills of right, which is often framed in a general and abstract manner that can be unpacked only by political and moral theorizing. Some legal questions are resolved by appealing to political argument and this indicates that legal reasoning is not essentially distinct from politicians reasoning. The formation of the legal concepts reveals various social rationales for which the use of the idea is meant. These legal ideas are not neutral, however lead to specific judgments on the facts that they exemplify. Every concept is also related to other key concepts, and the link between them expresses a political theory. Hart offered a distinction between easy and hard cases, which is fundamental to understanding how legal argumentation works. Easy cases are one in which the facts clearly fit the rule of the law leading to an outcome that is not subject to further disputation. Hart argued that most of the cases are simply resolved by application of legal rules. Hard cases lead to legal disputations and trials in which a ruling is made. Reasons are given to support the ruling and the ruling may then function as a precedent that applies to subsequent cases. For Hart, easy cases are legally determinate whereas for hard cases there is not determinate answer about what the law is, with the result that if judges are to decide such case they must do so on extralegal grounds. In contrast, Dworkin offered an interpretation view that distinguish between easy cases whereby legal sources usually work and in hard cases where judges have to go beyond the rules which are explicit in legal texts (such as cases, statutes, and constitutional provisions) and make use of principles. Dworkin suggested the need to identify the existing possible rules that fit the current institutional history and selecting from among the rules based on the values or principles, which offer the best justification for the institutional history. Legal ideas have a history that shows the creation of a political community as well as legal institutions of the community. Over time, these concepts change, this may be an increment change at the borderline of use. Frequently they change drastically and reflect a different organization of purpose and phenomenon. The attribute of an idea in the process of change is fundamental contestedness. An idea that essentially contested whose inner structure and association with other concepts is the issue of dispute. This dispute cannot be settled decisively by any logical examination or agreed upon statistical evidence; however, it can only be settled politically via compromise, or through the assembly of preponderant support. This indicates that formal legal statutes upheld by positivists do not significantly control legal reasoning. In addition, in contradiction of positivist premises, political ethical viewpoint always constrain legal reasoning. Litigation entails arguments over key legal ideas. Legal judgment and reasoning in these issues is political and it should be self-consciously thus. Essentially, settlement necessitates the clear statement and recognition of the political idea of the legal decisions. Legal commentary also takes the form of expression of political premises behind legal decisions and the criticism of the decisions. Some scholars have argued that legal reasoning is unique and distinctive and comprises of three concepts or ideas, each of which is key to the practical philosophy put forward by Aristotle; practical wisdom or phronesis, craft or techne, and rhetoric or rhetorica. Good legal reasoning takes into consideration the three aspects; each of these aspects is an important aspect of legal reasoning. Rhetoric’s commitment to providing reasons make practical understanding more coherent and craft less tricky, cunning, and secretive. Only combined, does rhetoric, craft, and wisdom create a compelling, complete, and balanced account of legal reasoning. Nonetheless, legal reasoning accommodates jurisprudential and policy influences without assuming away the reasoning process of the judges. The judges play an important role in the constitutional system however; they do not have the mandate or authority to act in line with their policy preference which adjudicating specific disagreement; they are expected to serve as objective and impartial arbiters and their decisions are expected to by based on the law and not individual preferences. In reality, one of the main basic assumption that underlie traditional ideas of legal reasoning is that the discretion of judges is limited-that they are restrained by established sources of legal reasoning that includes precedent, text, as well as a reasoned inquiry into the intention of elected and constitutional drafting personnel. Currently, judges normally vote inexplicably in favor of outcomes, which are in line with their policy views. That is the reason judges exercising their powers to invalidate some legislations as unconstitutional insist that their rulings give effect to the law laid down in the constitution-they do not have the power to substitute their individual policy judgments for those of democratically elected legislators. Accepted legal reasoning as well as consideration of legislative right support sound and legitimate judicial decisions. The reaction to a judicial verdict as well as its following implementation has to do with legitimacy matters. Jurisprudential theorists mostly focus on the subject of legal reasoning in an attempt to understand law and the way judges should and do decide cases and the account that sufficiently explicate and be used to justify or guide their activities. They seek to unearth whether legal reasoning is an activity that is limited to the adjudicative foundations of legal structures and whether there exist any interpretation regarding the law to be termed as legal reasoning, regardless of where and by whom it is carried out. The judges’ account of law and their explanation of arbitration are not the same according to some theorists; their remit is large that just attempting to ascertain what the law is in relation to the issue in the case being considered. At times, extra-legal considerations are considered and judges have the discretion of changing the existing laws and filling in gaps whereby the current law is not determinate. The issue of legal reasoning being about reasoning about the law is this indistinct between reasoning to determine the law content, as it currently exists, and reasoning from the content to the decision, which the courts should reach in cases that it handles. The expression legal reasoning is thus used in a narrow and broad sense. In the broad sense, it denotes the psychological processes that the judges undergo while reaching decisions in the cases that they are handling. The processes consist of ideas, emotions, feelings, hunches, conjectures, and beliefs. The judges reasoning refer to the things that pass through their mind while reach a decision, although they may be barely conscious, or even not conscious at all, of the numerous aspects of the process. In the wider sense, an occurrence of legal reasoning is part of the biography of some particular judge and this political reasoning becomes an important element of these processes. Ronald Dworking noted that when a judge decides a case in line with the law, he or she only determines the content of the law and applies it to the facts of the case. This means that according to him, judges do not seek extra-legal deliberations when deciding cases in line with the law; all the deliberation that they are entitled to consider are part of the law. Dworkin’s implication is that what the judges do is no less nor more than reasoning about the law in sense, and they reason to establish the law content. In the narrow sense of the term, legal reasoning denotes the arguments that judges give, mostly in written form, in support for the decision they offer. These arguments comprise of the reasons for the decisions, and the reasons are meant for justification of the decision. Most of what goes through the judges’ mind in reasoning, in the broad sense, about the case before him does not find its way into their arguments. In offering their reasons, judges attempt to offer a justification for their decisions to the interested people; this includes parties to the case at hand, the legal profession, and other persons who may be immediately affected by the decision as well as the community at large. Sometimes the judges do not disclose the real reasons why they reach certain decisions and the reasons presented are no more than rationalizations for the verdicts they reach. This means that in order to explain why a particular case is decided in a particular manner, it is important to consider the factors that lie outside the explicitly given justifications. The modes of legal reasoning provide an insight into the way judges and justices think about various issues through explaining why they have reached certain decisions. In particular, some of these models of legal reasoning reveal justices and judges motivations for their decision. Some modes of legal reasoning reveal the judicial understanding of political power dynamics and institutional divisions of labor. Other forms of legal reasoning have built in instrumental aspects that offer judges and justices with some agency in arriving at their legal decisions. Some legal reasoning and forms maintain a degree of autonomy from the changing aspects of social and institutional change. The autonomy implies that even though some legal practices and forms can be temporally dependent, others are more deeply embedded in the political or legal culture, and are not just reflection of or reactions to economic, social, or political forces. To a certain extent, the deeply held legal norms and values constrain political choices and judicial behavior through presenting enduring and stable structure, which mediate political and social conflict. Although there are stable and independent forms of legal reasoning, they are a dialect of social discourse that occurs in the wider society that taps into the beliefs and themes that pervade political culture. Some forms of legal reasoning enable one to determine the way judges perceive their role with respect to the other lawmakers in other governmental branches, or to upper and lower courts. While some judges choose a purely legal principle, others choose a form of legal reasoning-that is an idea that derives from political, culture, and society arrangements. The formed indicates that some judges adhere to their role as legal decision makers and less as policy makers. The later shows some sensitivity to various policy implications and dimensions. The option of applying a legal practice or principle or a political or sociocultural one indicates a judge’s self-perception of their proper role as legal adjudicator or policy makers. Key political outcomes are deliberated and decided in the logic and language of law1. Law serves as a cover for politics2. The courts can merely choose to hide the political and moral importance of its conceptual decisions as well as the theories that inform them, however it cannot reduce their significance. Political reasoning comes into play in courts when judges and lawyers perform their most characteristics roles-applying legal concepts and comparing, analyzing, and contrasting cases. These roles are closely connected to political reasoning, which represents view regarding what the lives of individuals in a community should be like. The political premises as well as the conceptual decision to which they are joined have to exposed the people view and comment as they represent perspective on what the lives of individuals in a society should be like3. The judges and the legislators play a similar role in this sense. Both take part in the public process of understanding these perspectives and reaching decisions that exemplify them. To perform their tasks properly, the judges have to articulate in their decision the political premise, judgment, concept as well as their relationship as developed in the history of the society. They also have to explain their dismissal of alternatives to the extent that they perceive them. The courts have to meet the requirement for articulation of important concepts, judgments, and theories fully. Judges have to achieve the awareness of the full political importance of their actions. It is in the court where important political matters are raised and temporarily settled. Legal reasoning is not essentially political; however, judges do and should decide cases depending on their idea of what is politically correct. Such judges usually serve the master of their own conceptions of what is right or good or may serve some politicians and their views of what is right and good4. In each case, the court and judges set precedence for the right outcome of a particular case; they show the right way to talk and think about a case as well as other similar cases. In this way, their opinion offers authority to their own modes of expression and thought, to their own literary and intellectual forms. This, like forms of expression in other fields, may be defective or sound and this is true not only intellectually, but politically and ethically too. The opinion may be democratic or authoritarian, mean-spirited or generous, or rigid of open to many arguments, and hence it might display most of the political and ethical attributes that other forms of conduct can. Nonetheless, action with words is a mode of action relative to other people and a cultural inheritance, and it is responsible for political and ethical significance. Political and moral considerations have a great bearing on legal philosophy and reasoning. The law is established, maintained, or reformed for political and moral reasons and these reasons help in shaping the legal concepts. In legal decision, in particular key one, political and moral considerations are at hand of their own right; they do not require sources for propelling them into action. Judges and Justices are usually asked to decided on what is fair reasonable, cruel, or just by implicit or explicit requirement of common or statute law, or since this is the only intelligible or proper manner to decide. Law lays claim to legitimate authority and it is constituted in this role by various political practices. Joseph Raz noted that practical authorities usually arbitrate between subjects and the ultimate grounds for which that they should act. The directives of the authorities are based on such grounds and they are warranted only when observance of the instructions make it more likely that individuals will act in accordance with the fundamental rationales that apply to them. Judges perception of their roles can be determined by how willing they are to overturn or challenge the determination of other decision makers, including the decisions of other government branches, lower courts, and agency officials. Themes such as reasonableness, administrative deference, and plenary power generally indicate a general deference or indeed endorsement or agreement in various instances to another decision making body. When justices employ these forms of legal reasoning, it points a deferential bearing towards administrative or Congress agencies. Alternatively, forms of legal reasoning such as fact or evidence, doctrine, statutory interpretation, and procedural due process are not indicative of the implementation of a deferential position- and indeed the forms of legal reasoning can cut either way, working against or for the government. This shows that legal reasoning is not distinctive-some form of legal reasoning allows flexibility and discretion whereas others do not. Burley and Mattli noted that the law domain could not be fully detached from the political field; however, it would as a minimum offer a satisfactory barrier for achieving outcomes, which could not be directly attained in the political field5. Importance political results are decided and debated in the legal logic and language. Neofunctionalism theory provides support for explaining legal integration- a realm whereby the technicality of the operation of the courts is buttressed by the obvious detail of the issue it deals with. The rule of directive as a means that both disguises and to a particular degree changes political divergences indicates a function of the courts in the broader processes of political as well as economic combination. The judges’ freedom of action depends on a minimum level of reliability on substantive law as well as the practical restrains that legal reasoning imposes. The firm insistence of legal reasoning as difference from political actuality may be in effect a potential political instrument6. The creation as well as application of laws is essentially a process of changing expectation. Once a rule is set as a “law,” people are allowed to depend on the supposition that economic, social, and political actions will be undertaken in line with the rule. A key role of a legal law is to offer a certain and clear standard around which probabilities can take shape. The courts and justice sometimes justify their actions when it comes to the collective interests of political actors. Although the political effect of the judges’ decision is eventually felt, they become more acceptable primarily because of their autonomous nonpolitical explanation. The significance of the link between legal and political reasoning in a supposedly nonpolitical realm is evident in the fundamental interests and issues in the growing deliberations on judicial activism in the society. The need to presence the image of legal reasoning as nonpolitical blurs the link between legal reasoning and political reasoning. The court plays a key role in burnishing the nonpolitical image. The law functions as a shield and mask. It safeguards and hides the endorsement of a specific set of political aims against challenging aims in the solely political realm. Legal decisions that are evidently political, in that they depart from the methods and principles of law, attract direct political criticism hence failing as shield and mask. On the other hand, courts that seek to advance their political agenda have to accept the autonomous restraints of legal reasoning, even in cases where the constraints necessitate them to reach a verdict, which is far constricted relative to the one, which may be considered politically optimal. The political legitimacy of the court and thus its capacity to progress its individual political plan depends on its legal authority. The neofunctionalist approach shows the manner in which preserving judicial legitimacy safeguards a whole realm of integrationist processes, this allowing the buildup of power as well as the quest of personal interests by particular individuals in the dynamic of expansion. Each court institutional setting and the judges and justices selection of particular types of legal reasoning, and their varying degrees of commitments to types of legal reasoning determines their dependence on political reasoning. The analysis of patterns in forms of legal reasoning reveals a much more nuanced portrayal of the creating of judicial preferences among competing concepts and interpretive approached to decision making than does just looking at legal outcomes. Judges categorize and group various types of cases together and evaluate the cases in every group in the same way. For instance, the modes of legal reasoning when it comes to immigration cases normally take the form of reference to political or social understanding of power arrangement (plenary power or national sovereignty), judicial principles (such as due process), or just a legally recognized way of deciding a case (such as facts or evidence, doctrine or statutory interpretation). When judges decide cases, their thinking about which values (legal or political) are important determines their legal reasoning approach. Although the modes of legal reasoning that appear in legal opinions are slightly dictated by the type of case and the fact patterns of the case. Nonetheless some of the forms of legal reasoning have functionalist aspects where legal reasoning have functionalist aspects where the legal reasoning can be employed as a means of judges to fashion their desired policy goals. Some forms of legal reasoning exemplify political reasoning, for instance they exemplify the political divisions of power between various branches of government. The discussion shows that legal reasoning is essentially different from the reasoning of politicians; however, understanding of political theory and policies are often indispensable to the resolution of legal cases. Bibliography Burley, Anne-Marie and Mattli, Walter. Europe Before the Court: A Political Theory of Legal Integration. International Organization, 47.1 (1993): 41-76 Read More