Character of Legal Reasoning, The

I. Introduction

A. The Distinctive Character of Legal Reasoning

During the past one hundred years the autonomy of the law has come under assault from almost every imaginable direction.1 At the beginning of the twenty-first century there is considerable doubt about whether there is anything unique or distinctive about legal reasoning.2 The law has traveled a long distance in the almost 250 years since Blackstone spoke of the garden of the common law, bounded by a protective hedge and characterized by gradual growth and change.3 This assault has come from both ends of the political spectrum.4 Some have argued that legal reasoning is essentially political,5 and that judges do, or should, decide cases based on their vision of what is politically correct.6 Such a judge may serve the master of her own ideas of what is good or right, or may serve political masters and their view of what is good and right. Others maintain that legal reasoning is essentially moral.7 Some schools of thought assert that good legal reasoning is like other types of reasoning, disciplined by the same rules of logic and threatened by the same types of logical error.8 Those who believe that the law holds something unique or distinctive often emphasize the ways in which it employs analogy and precedent.9

A question of almost limitless significance lies beneath the surface of these debates: Is it possible to distinguish a good legal argument from a bad one? This question is important because if we cannot distinguish between good and bad legal reasons, then we are ultimately in a world of total subjectivity. Power is the only thing that will matter. Our reasons will be nothing more than decorations. Thus, the answer-we hope-must be yes; after all, lawyers, and especially judges, distinguish good and bad legal arguments every day. But describing with any precision what makes one legal argument stronger than another is surprisingly difficult.10 Perhaps we are mistaken if we think that we can ascertain with confidence that one legal argument is better than another. Maybe it is finally a matter of opinion, and perhaps our certainty reflects only conviction.

A well-known cartoon about judicial reasoning is illustrative. Nine distinguished judges in robes sit in a row behind a high rostrum. Solemn expressions grace their faces, and one judge is reading from a piece of paper. "My dissenting opinion will be brief," he says. "You're all full of crap."11

It is hard not to chuckle at this cartoon. We can easily imagine that this cartoon embodies a sentiment that every appellate judge has felt from time to time.12 One thing that makes the cartoon funny is its juxtaposition of the very formal and proper with the very informal and inappropriate.13 One thing, however, is clear: The judge is not engaged in an acceptable mode of legal reasoning. Some types of argument, such as the blatant ad hominem, are simply out of bounds.14

My goal in this essay is to articulate what I believe to be the components of good legal reasoning, and especially of good judicial reasoning.15 At bottom, I aim to describe the traits or habits of character that will distinguish the best lawyers and the best judges, and how these traits or habits relate to each other. My ambition is not primarily to create a set of criteria to evaluate and critique others. Rather, my main purpose is to provide a framework for self-assessment to help lawyers and judges reflect upon what each of us may do to improve in our professional capacity and competence.

B. Thesis

My thesis is that legal reasoning is unique and distinctive. I will argue that legal reasoning is composed of three ideas or concepts, each of which lies at the heart of Aristotle's practical philosophy.16 The first isphronesis, or practical wisdom.17 The second is techne, or craft.18 The third is rhetorica, or rhetoric.19 Good legal reasoning is a combination of practical wisdom, craft, and rhetoric. The good lawyer is someone who combines the skills or character traits of practical wisdom, craft, and rhetoric. Each of these three concepts is an essential component of legal reasoning. Equally important, and less well understood, is the relationship between these concepts, which is illustrated in Figure 1.20

In Part II of this Essay, I will briefly describe practical wisdom, craft, and rhetoric.21 I will discuss the character and relationship of these three concepts, focusing upon four questions about each. First, what is the concern or end related to each of these concepts?22 second, what are the components or constituent parts of each?23 Third, what are the distinctive characteristics of practical wisdom, craft and rhetoric?24 And fourth, how is success measured with respect to each of these concepts?25 The distinct answers to each of these questions are shown in Figure 2. In Part III, I will discuss what I call the "dark side" of each of these concepts.26 While I come to praise practical wisdom, craft, and rhetoric, each of these concepts is an incomplete account of legal or judicial reasoning. I will explain the dangers of practical wisdom, craftsmanship, and rhetorical skill. Not only is it useful to recognize what we should fear or mistrust in each of these ideals, more importantly, we should be aware of the pitfalls that threaten our effectiveness as lawyers and judges if we fancy ourselves to be particularly adept at any one of these three skills or characteristics. In Part IV, I will explore in greater depth the interrelationships of these three concepts.27 In particular, I will try to explain how each of these aspects or elements of legal reasoning tempers or ameliorates the negative tendencies and effects of the others. My hope is to convince the reader not only of the centrality of practical wisdom, craft, and rhetoric in legal reasoning, but also that any one or two of these concepts taken alone is dangerous. Finally, I want to show that when composed harmoniously, these concepts constitute the bedrock characteristics of the good lawyer and judge.