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Law as Practical Reason

Published online by Cambridge University Press:  16 January 2009

M. J. Detmold
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Extract

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

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Articles
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The Cambridge Law Journal , Volume 48 , Issue 3 , November 1989 , pp. 436 - 471
Copyright
Copyright © Cambridge Law Journal and Contributors 1989

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References

1 Oxford, 1983.

2 “The Problem about the Nature of Law” (1983) 31 U. of Western Ontario L.R. 202 at 211–212.

3 See my The Unity of Law and Morality (London, 1984) pp. 37–38.

4 This connexion makes it difficult (I think impossible) to accommodate the conventional spelling distinction between judgment (of judges) and judgement; so I abandon it.

5 8 Co. Rep. 107a at 117b–118b.

6 In re the Judiciary and Navigation Acts, (1921) 29 C.L.R. 257.

7 This Wittgensteinian idea I have developed in Courts and Administrators (London, 1989). See particularly pp. 69–73.

8 For example, the (Victorian) Interpretation of Legislation Act 1984, s.35.

9 Yale, 1910, pp. vii–viii.

10 Fundamental Law in English Constitutional History (Oxford, 1955) p. 5.

11 Constitutionalism Ancient and Modern, 2nd edn (Cornell, 1947) p. 170–178.

12 Constitutional History of England (Cambridge, 1908) p. 382ff.

13 Op. cit., note 10 at p. 24.

14 Ibid., chapters 1–3.

15 Ibid., p 3.

16 Ibid., p. 27.

17 I Plowden, 38.

18 Op. cit., note 10 at p. 27.

19 Op. cit., note 17 at p. 59.

20 I Plowden, 77 at p. 88.

21 Supra note 5 at p. 118a.

22 First Book of Jurisprudence, 5th ed (London 1923) p. 266n.

23 Op. cit., note 9 at p. 288.

24 Ibid., pp. 289–291.

25 Law in the Making, 4th edn (Oxford 1946) p. 369.

26 Op. cit., note 10 at p. 355.

27 Holdsworth, History of English Law, ii, p. 443.

28 4 Inst, cap 1, 36.

29 History of English Law, iv, pp. 186–187.

30 Op. cit., note 9 at p. 129.

31 Op. cit., note 10 at pp. 42–43.

32 4 Inst, cap 1, 37.

33 Scott v. Bennet (1871) L.R. 5 H.L. 234. This remarkable case and its doctrine of the ultimacy of adjudication is discussed extensively in Op. cit., note 7.

34 (1871) L.R. 6 C.P. 576 at p. 582.

35 Supra note 2 at p. 217.

36 Ibid., at pp. 213–214.

37 Ibid., at p. 216.

38 Ibid., at p. 217.

39 Op. cit. note 3 at pp. 251–259.

40 Op. cit., note 7, where the argument is that the proper function of the courts in administrative law is to preserve citizens' rights against the state, because individuals' rights (which determine particular applications of law) are absolute against the state.

41 Op. cit., note 1 at p. 17. My emphasis.

42 Concept of Law (Oxford, 1961) at p. 126.

43 Op. cit., note 3 at p. 17.

44 In “Universalisation and Induction in Law”, in Proceedings of Conference on Reason in Law (Bologna, 1984), where he considers three theories of particularity: Smith, Adam, Theory of Moral Sentiments (1759)Google Scholar, Summers, R. S., “Two Types of Substantive Reasons” 63 Cornell LR 707 (1978), and my The Unity of Law and Morality (London, 1984)Google Scholar.

45 Ibid., at p. 14.

46 Notebooks 1914–1916 (Oxford, 1961) 74e.

47 Tractatus, 5.632–5.633.

48 Philosophical Investigations (Oxford, 1953) 178e.

49 This whole process I have examined in more depth in op. cit., note 7.

50 Note that the particularity void pre-exists the other soul; as can be seen if you really think hard about (say) chopping down a tree.

51 The Law and the Constitution, 3rd edn (London, 1943) p. 149.

52 Having one's law as a deep end in this way is a very complex thing. In Op. cit., note 7 I have argued (particularly in chapter 7) that law becomes the law of particular citizens not by original contract but by a much more complex particular consensual connexion.

53 Loc. cit., note 46.

54 Unger, R. M., “The Critical Legal Studies Movement” (1983) 96 H.L.R. 563 at p. 561Google Scholar. See also op. cit. note 7, Postscript 3.

55 Oxford, 1980.

56 Ibid., at pp. 392–393.

57 Ibid., at p. 397.

58 Ibid., p. 398.

59 Supra, note 41.

60 Ibid., at p. 3.

61 Pollock, and Maitland, , The History of English Law, 2nd ed (Cambridge, 1898) p. 176Google Scholar.

62 Ibid., p. 177.

63 Ibid., p. 176.

64 Op. cit., note 3 at pp. 201–204.

65 A way in which this might translate into a programme of judicial reform in administrative law I have offered in op. cit. note 7.

66 Op. cit. note 7, which is concerned to state those conditions. See particularly chapter 7.

67 Op. cit. note 42.

68 Ibid., at p. 244.

69 “Revolutions and Continuity of Law” in Oxford Essays in Jurisprudence (2nd series) ed. , Simpson (Oxford 1973) p. 74Google Scholar.

70 Ibid., at 74–75.

71 Nic. Eth. 1176a 17.

72 JAK Thomson, Penguin, p. 298; John Warrington, Everyman, p. 224.