Friday, October 19, 2007

Yarran's Abstract

In my essay I will attempt to view the process of legal reasoning through the lens of theories of public reason (primarily Macedo and Postema) in order to gain further understanding of both, particularly with regard to the issue of closure of debate. The structure will be as follows:

Section I – Legal Reasoning as Public Reason
In this section I will attempt to outline why legal reasoning should be thought of as public for two reasons. Firstly, the law is the method by which use of coercive force against individuals is governed (at least in a democratic society). Secondly, I will argue for the idea that law is an interpretative concept which must be seen in light of the history and goals of the society as a whole.

Section II – The characteristics of Legal Reasoning
I will here try to examine the peculiar characteristics of legal reasoning in light of theories of public reason, particularly the importance of dissensus, the role of the idea of ‘politicality’ (or legality) as a framework governing the use of conceptions of the good in public argument, and the question of arbitrariness given the role of the judge as final arbiter.

Section III – The scope of legal reasoning
Given that legal reasoning should be thought of as coming within the concept of public reason, I will consider arguments as to the scope of the law and the question of legal language; or the question of legal power – does the law really respect individuals as free and equal as it stands?

Section IV – The move to mediation
Taking questions of power into account, I will attempt to argue for a move from the adversarial system of law (plaintiff and defendant) to a system which includes mediation and discussion. I will do this by looking at Macedo’s idea of the importance of moderation in public reason.
(Additionally, I got sick last night sitting outside in the freezing Balmain wind at dinner so won't be attending class today :( )

PS.
I'm not sure whether Sections II & III should be swapped around.. any ideas? Section III as it stands is kind of questioning whether legal reasoning is truly public whereas Section II is more expository.

8 comments:

Anonymous said...

You can't edit either.

I also want to argue that the move to mediation will shed light on the issue of closure and justification.

Anonymous said...

I think that it's an incredibly interesting idea to focus on legal reasoning as a paradigm of public reasoning. When Rawls brought it up I was immediately struck by how bizarre it was, but as one thinks about it closer it seems to be quite an interesting parallel.

So your essay seems really good. As far as Section II and III being swapped around, my only concern is that you're covering the good vs the right, arbitrary arbiters, the scope of reasonableness and respect. It seems like a lot to cover in a 5000 word essay. I think Section II seems like it has enough content to fill the word limit, and I think it has more than enough to be really interesting!

Sounds great!

Thomas M Besch said...

This is a very interesting project, though it is very, very wide in scope, and thus should be narrowed down.

Here's a suggestion as to how it could be narrowed down. E.g., you could focus on what one of the relevant philosophers has to say, e.g., Macedo, on the relationship between legal and public reasoning (Rawls is somewhat clear about this, but what does Macedo say, see chp 3 from Lib Virtues?), and critically reconstruct how, if at all, legal reasoning can be claimed to be related to and governed by standards of equal accessibility and acceptability.

[To add, that relation might be rather indirect, as it would be if, e.g., equal accessibility and acceptability is in the first instance, but perhaps not only, required of the constitutional principles (think of Rawlsian "constitutional essentials" here) that govern both the making of positive law and its observation and application in and through court proceedings.]

Against that background you might try to defend the idea that one should move away from an adversarial system as it only sub-optimally expresses (?) the standard of equal accessibility and acceptability [or, alternatively, due reasonableness as a virtue of that people involved in court proceedings should show (e.g., as suggested against the background of Macedo)].
This would already be quitea lot to do, I guess.

Main point, in any case, I'd suggest you try to narrow down the scope, focus on just one author, and pursue what seems to be your main interest: (i) the link between the standards of public reasoning and legal reasoning (e.g., according to Macedo), and (ii) doubts as to whether the adversarial system best reflects/implements/expresses these requirements (alternatively: a related ideal of reasonableness as a virtue of participants in court).
(As I should want to add, (i) and (ii) are very interesting!)

Susannah said...
This comment has been removed by the author.
Susannah said...

Sorry about that deleted comment, I forgot to add something before I posted it originally...
I'm not sure whether this is a helpful comment - given that you're trying to narrow rather than broaden the scope of your essay - but I was wondering whether you could use some of Hobbes' ideas (i.e. the concept of the Leviathan as an ultimate arbitrator of legal and political claims) as a way of expanding upon the issue of judicial arbitrariness and, by extension, as a foil to your proposed ideas about moderation as an alternative to an adversarial legal system. Do you think that the attempt to move away from an arbitrator (in the form of a judge or jury) complicates the issue of closure? Can this issue be addressed without reference to a person, procedure or institution that has been designated a final arbitrator?
Otherwise it sounds great.

Anonymous said...

I have a rather bad tendency to eat off more than I can chew on all occasions..

Anthony - I guess insofar as Section III already deals with issues of reasonableness and respect (I guess just from a different angle) I can cut it out and leave that to Section II.

Thomas - Focusing on the idea of the reasonable and the twin goals of public reason ala Macedo would give my essay more focus I guess. I was however hoping to think of the relationship between legal reason and public reason as more of an exchange - ideas from (strictly) legal reasoning as influencing public reason as well as public reason - hopefully I can still fit this in?

Susannah - I was going to fit some of the Hobbesian stuff in the form of Gauthier or Ridge (I can't remember which?) who construed of laws as commands not needing interpretation. I was going to then relate that to obviously law as an interpretive concept in S.I and also to the questions of power (which I guess are now cut out) in S.III.

Also the question of closure with regard to mediation was exactly what I wanted to look at! Does moving to a more (reasonable/respectful?) system cut away at reasoning as justification? I guess I would still argue for a final arbiter in cases where a mediation cannot be reached but as a last resort... however issues of fairness of closure then become relevant again. I was going to THEN argue for closure playing a role with regard to the development of the law (as in at this point in a society's development, this is the RIGHT thing to do, but this may change as the society changes).

Anonymous said...

Reading Macedo's Politics of Justification again - on p.5 (p.283) he makes two claims about judicial authority -

‘Judicial review elevates the political authority of courts, authority that flows from the capacity to recognise good reasons and make good arguments’

‘They [judges] gain authority by discerning interpretations of the fundamental law whose reasonableness can be widely seen.’

In other words, judicial authority depends on their exceptional rationality, which necessarily involves making widely accessible arguments.

How is this supposed to apply? In every case? Then they have no real 'authority' at all except each individual's own reasoned judgment of the same case. Or if judges 'in general' are exceptionally rational in ways which the public can appreciate, does this make their decisions in 'hard cases' more accessible?

I think this kind of 'direct' authority from reason-> judges is too simple - their authority must flow from some other source which is democratically agreed on, such as a Constitution (otherwise the correctness of their reasoning devolves into majority rule).

Lucy said...

Hmm yes (hi yarran, long time no speak) - i think you're right to question the validity of directly linking authority with reason. but maybe there are different levels of authority: so while the authority of the judge qua judge is grounded ultimately in the constitution (or associated legislative body), the authority of each individual judgment made by the judge is more immediately due to his/her reason.

having said that, i think you're right to point out the limitations of 'reasonableness' as the criterion of judicial authority. even when judges make decisions that are clearly grounded in a comprehensive doctrine (im thinking of the split decision in Cattanach v Melchior - you know the wrongful life case: not sure any of the reasoning in that one could be considered public in its truest sense) they do not lose their authority. there definitely seems to be a sense in which judicial authority is prior to reasonableness, rather than being grounded in reasonableness. do you know what i mean?