Legal Reasoning

1
Legal Reasoning
Related to moral reasoning Based on some
legal philosophy Situated in some context
2
Legal and Moral Reasoning
Legal and moral reasoning both may involve
prescriptive claims. Moral example One should
not unnecessarily restrict the freedom of
another. Legal example One must not act in a way
that deprives others of their civil rights. Does
one have priority over the other? Can a moral
principle decide a legal issue? Can a principle
of law be used to settle a moral issue?
3
Philosophies of Law

• Legal moralism

Would any of these be more promising as a
starting-point for a morality-based legal
system? Moral relativism Utilitarianism
Duty theory (with categorical imperative)
Divine command theory Virtue ethics
4
Legal Moralism
This philosophy asserts that the law should make
illegal whatever is immoral. Example traditional
Islamic law An American challenge ...the new
government, in Jeffersons eyes, was to be a
shell, an armor, a protective structure that
would allow and perhaps, in subtle ways, even
support the growth of moral power within the
individual members of the society. (Needleman,
p. 166) American law does not totally embrace or
reject legal moralism.
5
Philosophies of Law

• Legal moralism
• Harm principle justification

A philosophical issue Should laws be as few and
as narrowly focused as possible, with the
standard being that laws simply do an adequate
job of protecting citizens from harm?
6
Harm principle justification

• An action should be illegal if and only if it
  does harm to others.
• Definition issue What is harm?
  (In practice, this definition would evolve.)
• American context Environmental laws (Is this
  minimum protection from harm?)
• Criminal vs. civil proceedings

7
Philosophies of Law

• Legal moralism
• Harm principle justification
• Legal paternalism

Do lawmakers know more about how you should live
your life than you do? Should government get to
decide whats right or good for you?
8
Legal Paternalism

• Laws for the citizens own good
  (or at least thats what they tell you)
• Example seat belt laws
• More controversial example Drug
  possession laws

When does the punishment for violating one of
these laws do more harm than the prohibited
behavior? Is the law then still right?
9
Philosophies of Law

• Legal moralism
• Harm principle justification
• Legal paternalism
• Offense principle justification

How offensive does a behavior have to be before
it should become against the law?
10
Offense Principle

• Do others have a right not to be offended?
• In the American context, is freedom more
  important than someone elses subjective
  preferences?
• Is the law the place to address any or all
  disagreements about what is proper behavior?

11
Reasoning involving laws

• Legal vs. moral arguments
• Specialized terminology issues
• Interpreting reported facts of a case
• Precedents
• Role of philosophical or religious beliefs that
  conscience holds to be above the law