METHODS OF LEGAL REASONING
THE PRINCIPLES AND RULES OF LEGAL REASONING
The question most people ask today is ‘what is legal reasoning’? This article will throw more light on that question.
The laws made by the legislature are to be interpreted by the judiciary in case of disputes. Since the law is usually expressed in a general language, it means the lawyers of the parties and the judge has to determine through practical reasoning whether the law applies to particular facts. This is not an easy task considering that any decision will one way or the other have implication on the rights, liabilities, and obligations of the parties. It, therefore, becomes necessary to study the various methods of reasoning usually adopted in the legal profession.
Principles and Rules
A principle of law can be defined as an established legal truth or proposition that is so clear that it cannot be reproved or contradicted unless by a proposition which is clearer. Because of the timelessness of the truth or proposition, it serves as a standard guide in the process of lawmaking, execution, and interpretation. It is an established idea, value or guidepost by which the quality of legislation, decisions, and arguments may be judged and evaluated as either valid or notwithstanding any good result that such legislation, decision, and argument may produce. Some of the well-established principles in Constitutional law are principles of rule of law, separation of powers, the supremacy of the constitution, etc. If a particular line of reasoning or argument is contrary to any of the established principles, such reasoning or argument immediately becomes suspect and open to legal attack or criticism. A principle is, therefore, a comprehensive legal proposition or truth which furnishes a basis or origin for the development of legal rules. Legal rules, on the other hand, are instances of specific applications of legal principles. For instances, the principle of natural justice has two components:
- A party must not be condemned unheard (audi alterem patem) and
- One should not be a judge in his own cause (nemo judex in causa sua).
The following rules have been developed from the principles:
Rhetoric is the art of seeking to convince or persuade another, either through the medium of writing or speech, to accept one’s position or view. Plato defined rhetoric as ‘the art of winning men’s mind with words.’ This is why any serious-minded law student or lawyer must continuously see to improve his mastery of language and use of words. In the words of an erudite scholar M.P. Golding:
“For the lawyer, language has a special interest. Words are of central importance to him because they are in a very particular way one tool of his trade… other professionals are also concerned in part with words but certainly not to the extent that lawyers are.”
A notable ancient Greek Philosopher, Aristotle, identified and distinguished between forensic rhetoric and deliberative rhetoric and thought that the pursuit of the latter was nobler and more worthy of the statesman. Broadly speaking, lawyers use forensic rhetoric and judges use deliberative rhetoric. Lawyers represent the interest of their client and their goal, therefore, is to persuade the court to accept their viewpoints. The judge, on the other hand, is seeking to arrive at a rationalized decision that is justifiable in the overall interest of the parties and the society.
Although presentations are made in words, the principle rhetorical device used in law is the appeal to authority. This, in other words, means citing or referring to existing laws (judicial or statutory) to back up; or justify the position being canvassed. In Nigeria and other law jurisdictions, appeal to authority entails referring to judicial or statutory authorities which constitutes what is known as the primary source of law. In some instances the opinions, writings commentaries etc of jurists and learned writers as well as judicial decisions of other jurisdiction can be referred to; however, they have only persuasive effect. Opinions, writings, commentaries, among other things, constitute part of what is known as a secondary source of law.
We have carefully discussed the methods of legal reasoning.