Principled and Pragmatic Theories of Legal Reasoning
FESTSKRIFT TILL AKE FRANDBERG, Anders Fogelklou & Torben Spaak, eds., pp. 235-262, 2003
28 Pages Posted: 8 Aug 2006
In this essay, I develop a distinction between what I shall refer to as principled and pragmatic theories of legal reasoning, respectively. Crudely put, principled theories stress the importance of consistency and coherence, claiming that the judge must decide the case before him in accordance with a legal norm that explains and justifies past decisions and that he is also willing to act on in the future. In other words, the principle of universalizability plays a central role in principled theories. Pragmatic theories, on the other hand, emphasize the importance of attention to context and practice and of instrumentalist thinking, arguing that judicial decision-making ought to be eclectic and piecemeal, and focus more on results than conformity with norms. I think of these two types of theory as ideal-types. They offer a conceptual, not a normative, ideal against which we may measure existing theories. On this analysis, principled theories are more or less principled depending on how they understand and employ the principle of universalizability, which principle applies both to the holding (the ratio decidendi) and to the arguments supporting the holding. Pragmatic theories are more or less pragmatic depending on the extent to which they take into account contextual features and involve instrumentalist thinking, which parameters apply on the same two counts.
Keywords: Theories of legal reasoning
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