Recently published: Advanced Introduction to Legal Reasoning, by Larry Alexander (University of San Diego Law School) and Emily Sherwin (Cornell Law School) (Edward Elgar Publishing 2021). Here is the book description from the publisher:
This insightful and highly readable Advanced Introduction provides a succinct, yet comprehensive, overview of legal reasoning, covering both reasoning from canonical texts and legal decision-making in the absence of rules. Overall, it argues that there are only two methods by which judges decide legal disputes: deductive reasoning from rules and unconstrained moral, practical, and empirical reasoning.
I mostly agree with the central premise, as I think do most originalists. A fair number of nonoriginalist judges and scholars claim there is a third way that is neither based on the original meaning of rules nor on “moral, practical, and empirical reasoning” (what I would call whatever the interpreter thinks best). I think the third way is mostly an illusion.
My slight disagreement is this: I think there can be law based on customary practices. That is a law that is neither based on canonical texts nor “moral, practical, and empirical reasoning.” Customary international law is an example, as are some forms of commercial law.
But I describe this as a “slight disagreement” because I think the scope of rules based on custom is necessarily very narrow. In particular, I think custom has very limited ability to generate rules to address new situations without collapsing into moral, practical, and empirical reasoning. For an extended discussion of this view, see my article The Limits of Custom in Constitutional and International Law.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.