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3 Law & Phil. 1 (1984)

handle is hein.journals/lwphil3 and id is 1 raw text is: BARBARA BAUM LEVENBOOK

ABSTRACT. The purpose of this essay is to defend a claim that a certain
consideration, which I call unworkability, is universally and necessarily
relevant to legal reasoning. By that I mean that it is a consideration that must
carry legal weight in the justification of some judicial decisions in every legal
system in which (1) all disputed matters of law can be adjudicated, and (2)
all judicial decisions are to be legally justified. Unworkability's necessary
relevance has important implications for a theory of relevance presented by
Rolf Sartorius. On this theory, nearly all considerations that are relevant to
a judicial decision are supplied by legal principles embedded in the legal rules
and decisions, or by extralegal principles dependent, in some way, on the
legal principles. (The exceptions to the embedding thesis that Sartorius would,
no doubt, recognize are elaborated in the text but can be set aside here.) But
there are possible legal systems which do not contain an embedded legal
principle concerning unworkability; and nonetheless, unworkability is relevant
to judicial reasoning in those systems. Hence, a theory of relevance that
relies on principles embedded in the content of rules is too simplistic. Some
substantive considerations are relevant for other reasons.
It is useful to begin a philosophical examination of legal reasoning
by trying to determine what is universal to it and what is relative
to the legal system in which that reasoning occurs. In particular,
setting aside matters of the reasoning's form and the rules of logic
that are involved in legal reasoning, it would be helpful to know if
there is anything universal about the content of legal reasoning.
Is there any particular consideration that may be invoked as
legally relevant to some judicial decision or other in any possible
legal system, where by legal relevance is meant that the consid-
eration carries some weight in the legal justification of that deci-
sion? And if so, what is the reason for its necessary relevance? This
essay presents an argument for one such consideration. Its dis-
Law and Philosophy 3 (1984) 1-23. 0167-5249/84/0031-0001 $02.30.
© 1984 by D. Reidel Publishing Company.

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