LEGAL REASONING A S A TYPE OF PRACTICAL REASONING. J. David NEWELL

Transcription

1 LEGAL REASONING A S A TYPE OF PRACTICAL REASONING J. David NEWELL In this paper, I shall attempt to defend the vie w that legal reasoning is a type o f practical reasoning. M y defense w i l l p rima rily take the form of an exposition of the nature of philosophy offered by the English Utilitarian Henry Sidgwick. I am inclined to accept his distinction between theoretical and practical reasoning and, o n the basis o f this distinction, to locate legal reasoning in the sphere o f the practical rather than the theoretical. I have trie d to anticipate and answer some objections th a t mig h t be raised against this vie w, although I a m certain to have le ft much ground uncovered in this regard. I conclude the discussion with some reasons for finding the view presented useful and relevant to the contemporary scene. II Sidgwick vie ws philosophy as th e scientia scientiarum Conceiving o f the sciences as sets o f connected knowledge, Sidgwick maintains that if we imagine them as rising from the particular to the general, we ma y consider these sets in turn connected b y philosophy at the higher end. I t is not his vie w that philosophy ignores the phenomena with which the sciences deal. But rather the p rima ry concern o f the philosopher is wit h fundamental principles, methods and conclusions. Each of the sciences presents us wit h some understanding o f o u r universe. Philosophy is concerned to help us understand o u r understanding of it. As such, it performs an essential unifying function:

2 546 J. D. NEWELL The import ant dis t inc t ion i s t hat t h e sciences concentrate attention on particular parts or aspects of the k nowable world, abstracting f rom the rest; while it is, i n contrast, t he essential characteristic o f Philos ophy t hat i t aims a t put t ing t oget her the parts of knowledge thus attained into a systematic whole; so that all methods of attaining t rut h may be grasped as parts of one method; and t hat all t he conclusions attained may be presented, so f ar as possible, as harmonious and consistent, The distinction between philosophy and the sciences at issue here rests o n the difference between the sorts o f questions raised. Fo r example, the physics student wants to kn o w what laws there are governing the behavior of physical things. But the philosopher wants to kn o w what the nature o f "substance" itself is. Having thus distinguished philosophy f ro m t h e sciences, Sidgwick proceeds t o a distinction between theoretical p h ilosophy and practical philosophy. He re too, th e distinction is based on the kinds of questions asked, rather than the answers that might be given. The te rm 'theoretical philosophy' applies to o u r systematic knowledge of what is, has been o r will be so far as we can forecast what will be. The term 'practical philosophy' applies to our systematic knowledge, our system of reasoned judgment, as t o wh a t ought to be. The fundamental distinction here is between questions about "what is" and questions about "what ought to be". Wit h its concern fo r " wh a t ought to be", practical philosophy includes the study o f fundamental principles in Ethics and Politics and Jurisprudence. As such it is roughly equivalent, according to Sidgwick, to moral, political, and legal philosophy. It is important to observe, at this point, that the distinction mentioned earlier between philosophy and the sciences obtains in both the realm o f theoretical philosophy and the realm o f practical philosophy. Theoretical philosophy faces the task o f unifying the systems of knowledge commonly called 'sciences' or 'positive sciences'. Practical philosophy is confronted with a simila r assignment with regard to "the systems of knowledge or reasoned thought distinguished as Ethics, Politics and Ju -

3 PRACTICAL REASONING risprudence." Th e re is, then, a difference between Ethics and moral philosophy, Politics and political philosophy, and Jurisprudence and legal philosophy '). This difference deserves a closer scrutiny. The essential difference is th a t moral, p o litica l a n d legal philosophy belong to the province o f philosophy, specifically practical philosophy, whereas Ethics, Politics and Jurisprudence, strictly speaking, do not. I t will be remembered that, f o r Sidgwick, the central concern o f practical philosophy is wit h the fundamental principles, methods and conclusions o f the "sciences". Ethics, Politics a n d Jurisprudence p ro vid e t h e philosopher with the data or phenomena, so to speak, for philosophizing, but they are not per se philosophical disciplines 1. The distinction between Jurisprudence and Legal Philosophy, according to Sidgwick is the most obvious: I hav e spoken of Ethics, Politics and Jurisprudence. Th e las t mentioned is c learly dis t inguis hed i n ordinary t hought f r o m Philosophy. There are, no doubt, philos ophic al jurists, but all jurists are not as such philosophers: it is recognized that a man may have a sound knowledge of law even of the conception and rules of law in general, as distinct from the law of a particular state wit hout being a philosopher. The distinction referred to in this passage can be clearly seen in terms o f the sorts o f questions raised: the ju rist wants to know wh a t laws exist, the philosopher wants to kn o w wh a t the nature of la w itself is. In Ethics and Politics the concerns are simila r to those in Jurisprudence. Sidgwick notes that it is generally recognized that it is the business of Ethics to supply an answer to questions as to the details of right conduct or duty so far as they are legitimate questions t o ask. B u t th is is n o t the business o f moral philosophy, which is p rima rily concerned with the general principles and methods o f moral reasoning and o n ly wit h details o f conduct in so fa r as the discussion of them affords instructive examples o f general principles and methods. S i- milarly, Politics aims at determining the rules for governmental action and the construction of governmental organs. But poli-

4 548 J. D. NEWELL tical philosophy aims a t unifying the principles and methods of reasoning directed to practical p o litica l conclusions. If we grant Sidgwick's distinction between theoretical and practical philosophy, we ma y find ourselves in agreement with the suggestion that legal reasoning is to be properly located in the province of practical philosophy. Its bedfellows are moral reasoning and political reasoning. I f we grant Sidgwick's distinction between legal philosophy and Jurisprudence, we ma y be inclined to further specify the locale of legal reasoning as belonging to the sphere o f legal philosophy. III There a re at least t wo objections wh ich ma y be raised to Sidgwick's classifications. I t ma y be objected that this distinction between theoretical and practical reasoning does not hold. Specifically, i t ma y be urged that since legal reasoning concerns itse lf ma in ly wit h legal theories, i t is misleading, and perhaps false, to claim that legal reasoning does not fall within the scope o f theoretical reasoning. This objection has force only if we ignore the grounds upon which Sidgwick draws this distinction. It is not per se a distinction between theory and practice. He re a d ily acknowledges the theoretical aspects o f practical philosophy as we ll as the practical aspects o f theoretical philosophy. The grounds upon which Sidgwick's distinction is based is the readily acknowledged distinction between fact and ideal, i.e. between "what is" has been, will be) and "what ought to be". Practical philosophy, for Sidgwick, is "the supreme architectonic study o f ultimate ends", of the principles of what ought to be are theories about what ought to be and Sidgwick was quite familiar with most of them, but the direction of such theories toward practical conclusions, in Ethics, Politics and Jurisprudence is wh a t prompted Sid g wick t o d ra w th e lin e wh e re he did. A second objection ma y be forthcoming fro m those whose sympathies lie with "legal positivism". I t can be said of John

5 PRACTICAL REASONING Austin, f o r example, that he considered philosophy o f la w to be concerned only with positive law, "as it necessarily is", not as it ought to be. And so it would seem, on a first glance, that legal reasoning belongs to the domain of theoretical reasoning, rather than practical reasoning. But Austin was one o f Sidgwick's "mentors" and Sidgwick claims to be following Austin in his conception of a legal system. The apparent inconsistency dissolves when it is understood that both Austin and Sid g wick conceived the ma in ta sk o f legal philosophy to be the analysis o f certain notions wh ich pervade the science o f law. Legal philosophy concerns itse lf with fundamental principles, methods a n d conclusions p e r- taining to the study o f law. Sidgwick's approach to law, like his approach to government, is never in terms o f the sort o f considerations prevalent, fo r example, in Natural Law theories, His notion of "what ought to be" includes what is commonly judged to be "good" so far as attainable by human action. And by the term 'good' he means the "ultimate good on the whole", good on the whole for human society. These utilitarian notions are not likely, I take it, to be alien to the thought of men like Austin. I v I want fin a lly to suggest some reasons fo r thinking that the classifications offered in th is paper mig h t be appealing to us today. 1) Th e distinction offered by Sidgwick between philosophy and other disciplines seems t o anticipate, i n ma n y respects, at least one contemporary vie w o f this same distinction '). 2) The view offered here commends itself to the more scientific, less metaphysical, approach to legal theory. A t the same time it enables one to introduce contemporary moral perspectives into discussions o f legal theory, should that be desired. 3) I t provides a most useful wa y of sorting out the various sorts o f questions wh ich come up in discussions o f la w and corollary issues. I f we have a cle a r notion o f the kin d o f

6 550 J. D. NEWELL question being asked, we can perhaps eliminate much o f the confusion that arises as the result o f a more holophrastic approach. Department o f Philosophy, Washington College NOTES I) Sioowic x 's general v ie w o f philos ophy and his discussion o f it s subdivisions c an be f ound i n his book : Philos ophy : Its Scope and Relations London: 1902). sophy o f la w" and "t h e s tudy o f a legal system". Sidgwic k confines t h e term to the latter rendering and c learly intends to distinguish it from philosophy. pecially wit h respect t o t he dis tinc tion between 'Ethics' and 'moral philosophy' See Th e Methods o f Ethics, London, 1874). of Ut ilit y. He stresses this princ iple in his discussion of Law and Gov ernment in the early chapters o f The Elements of Politics London, 1891). sophy and other disciplines in Chapter 1 o f The Philos ophy of Min d Ne w York: 1967).