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.