Understanding judicial reasoning : a conception and rationale for law-related education
Creators: name: Case, Roland
Publisher: name: University of British Columbia
Year: 2011

description: The topic of judicial reasoning has been largely excluded from high school law and social studies curricula despite widespread ignorance and misunderstanding among Canadians of the reasoning judges are expected to employ in applying the law. The two biggest obstacles to its inclusion are: (1) insufficient appreciation among educators of the importance of public understanding of judicial reasoning, and (2) a lack of consensus about the nature of judicial reasoning. Accordingly, the major thrusts of this dissertation are to justify why judicial reasoning ought to be part of basic civic education and to articulate a defensible conception of judicial reasoning for educators' use in law-related and public legal education programs. Defensible criteria for theorizing about judicial reasoning are explained and justified by considering different types of theorizing about social practices. Three basic types of theories are identified - formal, causal and ethical theories. It is suggested that the relevant type of theory of judicial reasoning, what I call a formal theory, involves explication of what informed practitioners would accept as the standards operating within their system. This account of theorizing about social practices is defended against objections implied by a rival account of theorizing presented by Dworkin. Dworkin's explication is rejected on the grounds that it conflates a distinction between theories that faithfully represent the standards of proper judicial practice and theories whose account of judicial standards is controlled by instrumental purposes. Building on Hart's conception of law as a union of primary and secondary rules, an account of judicial reasoning is developed in terms of three types of second-order rules. These rules of application, which establish standards for applying the law in particular cases, include rules for determining the legal validity of arguments for a decision, for setting the relative weight of legal arguments, and for verifying the conclusions attributed to a legal argument. Rules of application are organized into three dominant modes or forms of reasoning: (1) reasoning from interpretive guidelines, which refers to a constellation of second-order rules that govern application of law by determining a law's meaning; (2) reasoning from prior cases, which deals with rules governing application of law in light of previous judicial decisions; and (3) reasoning from principle, which involves rules for assessing the implications of potential judicial decisions in light of other legal standards. Specific judicial decisions and general judicial practices are explicated in terms of these modes of reasoning. This account of judicial reasoning is defended against a number of objections, including challenges posed by the principal rival conception of reasoning about the law - an account of judicial reasoning offered by Dworkin. Teaching high school students about the modes of judicial reasoning is justified because greater public understanding of judicial reasoning is required to combat widespread, potentially damaging, misperceptions of judicial practices. The key elements comprising an adequate lay understanding of judicial reasoning are outlined.