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Values-based law and the myth of legal reasoning
The values + evidence model of decision making applies to all areas of human decision
making. However, the positivist legal science approach does not acknowledge this. In a
system which does not account for values, mechanisms have developed which aim to
eliminate or objectify them. What has resulted is what Kairys has described as the myth
of legal reasoning (1992, p. 12-13).
The problem is not that the courts deviate from legal reasoning. There
is no legal reasoning in the sense of a legal methodology for reaching
particular, correct results. There is a distinctly legal and quite elaborate
system of discourse and body of knowledge, replete with its own
language and conventions of argumentation, logic and even manners. In
some ways these aspects of the law are so distinct and all-embracing as
to amount to a separate culture, and for many lawyers the courthouse,
the law firm, the language, the style, become a way of life.
But in terms of a method or process for decision making – for
determining correct rules, facts or results – the law provides only a wide
and conflicting variety of stylised rationalisation from which courts pick
and choose. Social and political judgements about the substance, parties
and context of a case guide such choices, even when they are not the
explicit or conscious basis of decisions.
For example, many introductory legal texts refer to traditional value-free methods as
governing judicial decision making; deductive reasoning, inductive reasoning and
reasoning by analogy (Holland & Webb, 1991; McDowell & Webb, 2002; Slapper &
Kelly, 1999). Deductive reasoning involves reasoning from the general to the
particular; commonly used in law in the application of clear rules to fact (McDowell &
Webb, 2002, p. 391). For example, John deliberately took Fred’s car to give to Jim.
Theft is removing an item of someone’s property with the intent of permanently
depriving them of it. John is therefore guilty of theft (adapted from an example given
by Holland & Webb, 1991, p. 195). Inductive reasoning is arguing from the particular
to the general: Kevin is lying dead with a bullet in his head. Lee is standing over Kevin
with a smoking gun in his hand. Lee therefore shot Kevin (adapted from an example
used by Slapper & Kelly, 1999, p. 132). Reasoning by analogy is concerned with
reasoning by example. The legal concept of ‘stare decisis’ refers to the adjudication of
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