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62 S. Cal. L. Rev. 1523 (1988-89)
Three Theories of Legal Reasoning

handle is hein.journals/scal62 and id is 1535 raw text is: Three Theories of Legal Reasoning

Legal decisions often appear arbitrary. Such decisions-I focus here
on appellate decisions'-typically contain reasoning that is to justify the
decision; yet even a cursory examination reveals that reasoning about
seemingly identical fact situations often leads to inconsistent, or at least
apparently inconsistent, results.' Moreover, legal reasoning is frequently
incomplete; crucial assumptions are not made explicit, and often it is not
clear what the unstated assumptions are. Even when they are explicit, it
is typically not clear how to justify the assumptions. Frequently, what
appears to be in the background is some political or moral view, for
which no justification is given.
These are familiar themes. A significant number of those who
engage in critical legal studies (CLS) argue that, given our current under-
standing and practice of the law, legal decisions arbitrarily impose moral
and political values without adequate justification.3 I disagree: Legal
1. Although focusing only on appellate decisions ignores the hundreds of thousands of legal
arguments made by practicing lawyers, trial court judges, and so on, I have three reasons for so
restricting my analysis. First, one cannot do everything at once. Second, the critical legal scholars
with whom I disagree about the nature of legal reasoning focus almost exclusively on appellate
decisions. See Stick, Can Nihilism be Pragmatic?, 100 HARV. L. REv. 332, 334 (1986). Third, the
considerations about legal reasoning I advance here should apply equally well to reasoning in all
2. See, e.g., Dewey, Logical Method and Law, 10 CORNELL L.Q. 17 (1924); Llewellyn, Some
Realism About Realism, 44 HARV. L. REv. 1222, 1252 (1931). For a somewhat similar point about
statutory interpretation, see Llewellyn's long list of authoritatively backed but inconsistent rules of
statutory interpretation. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Cannons about How Statutes are to be Interpreted, 3 VAND. L. REV. 395 (1950) [hereinafter Llewel-
lyn, Remarks].
3. See, eg., Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997
(1985); Frug, The Ideology of Bureaucracy in American Law, 97 HARv. L. REV. 1276 (1984); Kel-
man, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, The Structure of Blackstone's Commenta-
ries, 28 BUFFALO L. REV. 205 (1979); Kennedy, Form and Substance in Private Law Adjudication,
89 HARV. L. REv. 1685 (1976); Singer, The Player and the Cards Nihilism and Legal Theory, 94
YALE L.J. 1 (1984).
Joseph Singer has recently summarized the stance of critical legal realism as follows:
Law is based, to some substantial extent, on our intuitive judgments of right and
wrong, fairness and unfairness, justice and tyranny. Yet it is inaccurate to describe intui-
tive judgments as just your opinion. They are inevitably the opinion of someone situated
in our society, with experiences shared with others. The reasons we can give for our moral
intuitions will also be based on a shared cultural heritage of what constitutes a good argu-
ment for a proposition.... [We need] a language that allows us both to understand alter-
native social visions and to judge them. There is no single best way to do this. Our goal


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