Every day we as lawyers think like lawyers as we advise clients and present and decide cases. But we do not stop to ask what “thinking like a lawyer” actually is and how it turns us into leaders in all areas of society. I think of legal reason as a form of moral reason that judges questions of right and wrong behavior under principles, rules, and standards set down and enforced by government.
Think about how a judge determines whether a defendant in a murder case should be acquitted on grounds of self-defense.
Conviction for murder requires that the State persuading a reasonable fact-finder (the judge or jury) beyond a reasonable doubt that the defendant “intentionally or knowingly” caused the death of a person. And acquittal on grounds of self-defense requires that defense counsel show that the defendant’s conduct was justified because he reasonably believed that his action was immediately necessary to protect himself against the other person’s use, or attempted use, of unlawful force. These are the statutory elements of the crime and defense to be proved. Nothing else counts.
Now consider the legal reasoning that underlies this scenario. The arguments for both murder and self-defense are logical arguments in support of the proof of the elements of the crime or defense, but that is not all. Their proof depends on the facts and on the standard used to evaluate the evidence, not to reach a logical conclusion. (Proof beyond a reasonable doubt, proof by a preponderance of the evidence, more than a scintilla of evidence.) The soundness of the argument–hence its persuasiveness–is measured by which way the reasonable evaluation of the evidence to support proof of the elements of the statute goes. If the evidence shows beyond a reasonable doubt that the defendant did knowingly or intentionally cause the death of another, does the evidence also show that the defendant had reason to use deadly force to stop the other person from using deadly force against him under facts of the case and the law?
This is a more complex type of argument than a purely logical arguments in proof of the elements of a crime or defense as both the facts and the standard of proof impose their own constraints of the soundness of the outcome or judgment. So it is not the case–as some legal philosophers argue–that the law as we actually practice it can be reduced to objectively true moral propositions and that all we have to do is to reason logically from the objectively true moral proposition to the objectively true answer.
Take, for example, the logical argument that all persons should be treated equally under the law; the defendant is a person; therefore, the defendant must be treated equally under the law. Equally to whom? Ah, equally to all other similarly situated persons who fall within the set of persons accused of having committed the crime of murder and having raised self-defense. That is all logical reasoning. But now what?
How do we logically distinguish between what this defendant did and what the defendant in another case did? Well, we could try to completely define the set of persons who have committed murder and should be punished for it. Immediately we are in a morass of an infinite set of possibilities, any of which could constitute a crime and some of which may not (the defendant, a first responder, shot a gunman who had just shot up a school). We could go on and on trying to come up with a logical statutory definition for every possible act that could constitute the crime of murder and the set of defenses to that crime. But every one of our definitions would constitute a set of factual situations based on contingent empirical circumstances. And we would still have to decide whether the empirical circumstances in any particular case were such that the defendant should be convicted of his crime or excused because his act was justified. This would require either an objective measure of culpability that ranked every conceivable circumstance under which the crime could be committed. Instead, we define a body of rulesand precedents in case law that constrain—but do not fully define—sound answers to our legal questions.
Sooner or later we will have to give up and recognize that our propositions of law and our statutory terms and definitions and logical arguments will take us only so far. The positive law as we actually apply it–the law written into the Constitution and laws that we construe and implement–is irreducibly interpretive, empirical, and practical. It is also organic and dynamic. The correct answer to a legal question is only the best answer given the law and the circumstances–not the objectively true answer. And that best answer will not necessarily hold true under different circumstances or at different times as law and circumstances change.
Finally, legal argument leads to a judgment that follows logically from the application of the law to the facts. And this may require not only a logical argument from a given proposition of law to a valid conclusion under established facts (as in summary judgment) but the evaluation of different possible outcomes, given debated material facts, to determine which is better to maintain the functionality andintegrity of the law and the soundness of its application, and so to do justice. The evaluative element of a legal argument is what makes the argument sound and not merely valid. It is also what makes it right or wrong, good orbad in the context of the law and the facts.
That dynamic, interpretive, logical, and evaluative process ending in a sound judgment is the essence of legal argument, or applied legal reason, or, in the vocabulary of philosophy, practical reason. What its use means on the level of a case or on the level of general laws or rules of law is that the law may be both rationally and fairly construed and applied or not, and it can always be made better when it does not rationally and fairly serve the practical purposes to which it is put.
And there is yet another level of analysis of law and legal reason that goes beyond both the adjudication of particular legal questions and the making of good laws. This theoretical or jurisprudential level—the level of this article– poses questions about whatthe law does and should do. The study and practice of law and legal reason gives lawyers the means to pose and answer these questions too.
Bottom line: In law and legal reason, we, as lawyers and judges, have been given great tools to use in deciding which argument is better than another and then making that argument, not only in the courtroom but in the classroom, and in our personal, professional, and political lives. We can also use these tools to make better laws for a better society. What could be better than that?