The concluding observations do not constitute a chapter as such. They are only a summary of the main points inherent in the previous chapters and Elgar`s separate publication by the present author, namely A Short Introduction to Judging and to Legal Reasoning (Edward Elgar, 2016), as well as other final ideas. There is a discussion of Professor Lasser`s notion of an official and unofficial portrait of French law, a dichotomy used in the book Short Introduction in relation to the English legal argument. This was followed by brief discussions on the two main conclusions; these are, of course, Vaihinger`s theory of fiction “as if” (chapter nine) and the meaning of the concept of interest (chapters eleven and twelve). Finally, another conclusion is proposed. This means that legal reasoning, and indeed law as a discipline, is underpinned by a series of epistemological tensions that are implicitly (if not sometimes explicitly) always present; And they are unlikely to ever be “resolved” as such. For these tensions are part of the essence of law as a discipline. The fourth chapter focuses on identifying the so-called institutional models or focal points of legal thought that have emerged from the history of legal thought and thought. Six such models are devised: the rules model, the interpretation model, the rights model, the interest rate model, the policy model and the recourse model.
These models appear to be firmly rooted in common law legal reasoning, which is no doubt due, at least in part, to the influence of Roman jurisprudence on ordinary lawyers after the abolition of forms of action. Each model is discussed in detail. The second chapter (chapter eight) for comparison examines the thinking of film studies in order to examine whether work in this discipline contains useful lessons for lawyers interested in their own thinking. After a general discussion of the epistemological difficulties encountered by such a comparative enterprise, the chapter deals with several theories developed in literary and film studies: the theory of personification (which includes a long discussion of Hitchcock`s film Vertigo), the theory of representation and the theory of reception. It is argued that these theories are relevant to legal reasoning. However, it is also suggested, through the various discussions on interpretation and theory, that legal argumentators might have lessons useful to those involved in film studies. The fifth chapter continues the reflection on the legacy left by the history of legal argumentation by examining the long relationship between argumentation and legal texts. These texts can be roughly divided into two groups: those intended for practitioners and professionals, and those intended for students. This reflects a distinction between the doctrine and the practice of law. An important theme or artifact in this literary heritage – and one that links textbooks to the works of practitioners – is legal taxonomy. Those who teach law have sought a universalist view, while professionals and practitioners as a whole have had much less interest in rationalizing the law. This chapter therefore examines the relationship between legal taxonomy (law mapping), legal problem solving, and legal argumentation.
In particular, it deals with the influence of the civil principle of unjust enrichment on ordinary lawyers and the debates that this influence has generated. The chapter also discusses the role and importance of empirical categories. This book will be of great interest to scholars concerned with legal methods and argumentation, as well as the epistemology of the social sciences and aspects of comparative law. It will also be an insightful text for those interested in legal history and historical perspectives on legal argumentation. It may well be that the book is criticized because it does not deal with many of the major doctrinal theses that have been proposed concerning legal reasoning. However, the aim of the book is to “rethink” legal reasoning and thus to devote most of its space to offering different views and models from those put forward in the past (always bearing in mind that most “new” ideas are not new at all). In particular, the importance of a diachronic approach as a starting point and comparative analysis – that is, a comparison with thinking in other disciplines – is emphasized when it comes to a synchronous approach. In its treatment of civil law and common law, this work on legal reasoning can also be generally regarded as a work on comparative law. However, if there is one message that can be conveyed to the contemporary reader, it is that the extremely rich history of law as a discipline of knowledge – a history that goes back to Rome at the latest – deserves much more attention than perhaps the law courses currently allow (both in the common law and civil law worlds).
The study of jurists such as Ulpien, Bartolus, Baldus, Doneau and Cujas is likely to provide more information about legal thought and thought than the study of a contemporary jurist. Nihil novi in mundo, as a post-glossator would say when he receives a visit from Dr. Who returning from an adventure in contemporary law school. At a more specific level, tracking this understanding is done by asking a series of questions based on different approaches. What was the legal justification? What are the institutional and conceptual legacies of this story? What is literary and textual heritage? How does it compare to medical thinking and logical thinking in the humanities? Can it be debunked? In examining these questions, Samuel offers a number of frameworks that offer new perspectives on the nature of legal reasoning. The second chapter returns medieval jurists to Roman law itself. The structural meaning of the institutional scheme of persons (personae), things (res) and actions (actions) is discussed as well as the use of genus and species as the general basis of Roman legal taxonomy. The chapter then examines in depth the methods and techniques of argumentation used by Roman jurists, as well as the philosophical and theoretical contexts in which this reasoning worked. The relationship between these argumentation techniques and legal literature and texts is considered equally. The chapter aims to highlight several institutional and epistemological characteristics: for example, the importance of action (actio) as a starting point for reasoning at the judicial level and the reluctance to consider the source of law as existing in a set of abstract rules (regulae iuris). After Walter Jones` 1940 monograph on the history of legal theory – one of which is entitled The Fiction Theory – the ninth chapter examines the credibility of such a theory in terms of legal argumentation. Of course, much depends on how you define fiction, but if you take Hans Vaihinger`s philosophy of “as if” as an “epistemic attitude” and apply it to legal argumentation, the thesis can be defended.