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Vol 24 No 9 Sept/Oct 2019

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Reasoning with Law

Andrew HalpinReader in Legal Theory, Southampton University

ISBN13: 9781841130705
ISBN: 1841130702
Published: December 2001
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £75.00
Paperback edition , ISBN13 9781841132440

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The central aim of this book is an attempt to demonstrate how the problems of understanding legal reasoning replicate difficulties encountered in the philosophy of language. At the same time it challenges the attempts that have been made to harness approaches from within that discipline to illuminate legal reasoning. An introductory section deals with some preliminary matters in considering the nature of the relationship between legal theory and the practice of law, the scope of legal reasoning, and the role of the judge. Then the suggestion is made that the practice at the heart of legal reasoning is itself a manifestation of the way in which the limitations of language and the incompleteness of human experience at the same time provide the opportunity for coherent development as well as displaying an inherent instability. The final section considers some of the implications of this suggestion for the practice of legal definition, an institutional approach to law, the general possibility of providing a theoretical model of law, and the nature of law's critical aperture.

Part 1 Preliminary studies: law, theory and practice - conflicting perspectives? - no conflict - no theory, preliminary observations, conflicts, taking theory out of conflict; law, autonomy and reason - introduction, Raz's legal reasoning thesis, the legal epithet, some implications, wider issues; a study on the judicial role: introduction, the theoretical controversy concerning judicial review, the two models of judicial review, the ""undistributed"" or ""excluded"" middle, ""an all powerful government"", a return to the realm of fairy tales, replacing fig leaves, concluding remarks; excluded middles, rights answers and vagueness: introduction, right answers to hard cases, some general reflections, vagueness.
Part 2 Reasoning with law: the uses of words - introduction, commencing an analysis, elementary analysis of a term, general terms, an illustration of particular/general terms, what fixes a general term?, talking of ideas, the state we are at; some themes from Wittgenstein's ""Philosophical Investigations"" - introduction, a simple overview, the model considered, the game of games, conclusion; an annex on realism; words and concepts - a basic analysis, concepts requiring a participatory response, the significance of experience, conceptual development or conceptual dislocation; implications.