Why Does Legal Reasoning Has to be Unique?

• Author: Maciej Koszowki
• Position: Lazarski University, Warsaw, Poland
• Pages: 555-575

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2016 e Institute for Migrant Rights Press

e paper is connected to the research project the author carried out in the United

Kingdom as a guest researcher at Aberystwyth University owing to the Polish

governmental programme: ‘Mobilność Plus’.

Why doEs lEGal rEasoninG havE

to BE uniquE?

Maciej Koszowski

Łazarski University, Warsaw—Poland

E-mail: negotium@op.pl

is article addresses the issue of the uniqueness of legal reasoning. Specically,

the author advances the thesis that what makes legal reasoning dierent from

the reasoning employed in demonstrative and empirical sciences and matters of

everyday life is not the very form (scheme) of this reasoning but the legal milieu.

us, he tries to demonstrate that some features of law—such as its normative

and prescriptive nature, diculties with the verication of its content on empir-

ical grounds, its limitations stemming from the physical world and its depen-

dence on humans and their minds, as well as the "unspecialized" character of

law agents and the extraordinary role of authority therein—strongly inuence

legal reasoning. At the same time these features also allow this reasoning to be

unique, despite its adoption of forms of inference that are present elsewhere.

Keywords: jurisprudence, reasoning, legal theory, inference, legal methodology, ana-

lytical legal philosophy.

I. INTRODUCTION

Lawyers sometimes maintain—or at least wish it to be so—that the rea-

soning they employ in their work is of an extraordinary nature, i.e. that

it is distinctly dierent from the way in which people reason in mat-

III Indonesian Journal of International & Comparative Law 555-575 (June 2016)

556

Koszowski

ters of everyday life or in disciplines other than law.1 My methodolog-

ical proposition is that which makes legal reasoning special is not the

very scheme of inference (its premises and general mode of reaching

a conclusion), but the unique nature of the environment in which this

reasoning takes place. In other words, a scheme/general mode would

remain here more or less the same as in other spheres of human cogni-

tion and decision-making, being in essence: analogical (based upon the

judgment of similarity to known phenomena), deductive (consisting

in the subsumption of a concrete entity under a general proposition),

pragmatic (turning on protection of values and the achievement of

goals one desires in the world), argumentative (consisting in balanc-

ing the pros and cons of the outcomes that are at stake) or intuitive

(driven by internal insights, hunches or feelings).2 Yet the manner in

which legal reasoning proceeds, what turns the cogs of its mechanism,

would be strongly inuenced by the conditions under which advocates

and judges are forced to operate, the unavoidable necessity of dealing

with an organism such as the law itself. As a result, the form of legal

reasoning—though it be ordinary and has nothing special against the

background of the other elds of human activity—would be plunged

into the odd, complex, unfathomed substance that adds some deep un-

repeatable color to legal thinking when perceived as a whole. In eect

this thinking thus becomes dicult to probe and elucidate, especially if

one wishes to do so by simple recourse to the inferences that are known

1. "Legal reasoning diers in number of ways from the sort of reasoning em-

ployed by individuals in their everyday lives." Grant Lamond, Precedent and

Analogy in Legal Reasoning, in T S E  P

(June 20, 2006), http://plato.stanford.edu/entries/legal-reas-prec/. "It is widely

believed that legal reasoning is somehow special, not just in its subject matter

but in its very form." L L. W, L R: T U  A-

  L A 1-2 (2005).

2. As for intuitive reasoning (as opposition to a rational or deliberative one) see

for instance Chris Guthrie, Andrew J. Wistrich & Jerey J. Rachlinski, Judicial

Intuition 5-10, http://law.vanderbilt.edu/les/archive/Judicial_Intuition.pdf;

Seymour Epstein, Integration of the Cognitive and the Psychodynamic Uncon-

scious, 49 A. P 709-24 (1994); M G, B.

T P  T  T (Penguin Books 2006); H-

  I R (Marta Sinclair ed., 2011); H 

B: T P  I J (omas Gilovich, Dale

W. Grin & Daniel Kahneman eds., 2002); I  J  D-

 M (Henning Plessner, Cornelia Betsch & Tilmann Betsch eds.,

2008).