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Is legal reasoning like medical reasoning?
Published online by Cambridge University Press: 02 January 2018
Abstract
In this paper, stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. It will be argued that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.
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Footnotes
*
Also Professor affilié, École de Droit, Sciences-Po, Paris. This paper is a much extended, and rather differently orientated, version of an essay first published in France in 2013: ‘Qu'est-ce que le raisonnement juridique?’ in J-Y Chérot et al (eds) Le droit entre autonomie et ouverture: mélanges en l'honneur de Jean-Louis Bergel (Brussels: Bruylant, 2013) p 449. The author would like to thank both Professor Maurice Adams and the various anonymous referees for their very helpful comments and criticisms.
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139. See eg Samuel, above n 122, in which examples are given of facts being ‘manipulated’ in such a way to prevent the imposition of liability: Miller v Jackson [1977] QB 966 and Birmingham CC v Oakley [2001] 1 AC 617.
140. See eg Birmingham CC v Oakley [2001] 1 AC 617.
141. See eg Miller v Jackson [1977] QB 966.
142. [1947] AC 156.
143. (1866) LR 1 Ex 265 (Ex); (1868) LR 3 HL 330 (HL).
144. See eg Tomlinson v Congleton BC [2004] 1 AC 46.
145. [1996] 1 AC 344.
146. Whether any non-military judge would ever manipulate the facts in this way is another question. It is almost unimaginable that they would do so in any country that takes human rights seriously.
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148. Mathieu-Izorche, above n 37, pp 59, 91.
149. Masquelet, above n 1, p 117
150. Ibid, at 6.
151. White v Jones [1995] 2 AC 207.
152. See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, at 495.
153. Woodland v Swimming Teachers Association [2013] 3 WLR 1227, at para 30.
154. Laws LJ in Woodland v Swimming Teachers Association [2013] 3 WLR 853, at para 26.
155. This is the reason why in this present paper the important writings of Ronald Dworkin are not discussed. Dworkin famously compares legal reasoning not with medical reasoning but with a literary exercise, namely the writing of a chain novel: Dworkin, R Law's Empire (London: Fontana, 1986) p 228ff. This is a very different view of such reasoning where the emphasis is, seemingly, almost uniquely on the hermeneutical scheme of intelligibility (law as interpretation). Moreover, it is offered less as an account of how judges actually reason and (in the context of Dworkin's whole interpretation thesis) more of a metaphor about how they ought to reason. Ricoeur was critical of this chain novel analogy because it left out of account what he considered to be the interpretation of factsGoogle Scholar: see Ricoeur, above n 82, pp 181–183. One could of course say, following Dworkin, that medical reasoning is about the explanation of fact while legal reasoning is about the understanding of texts, but this present paper, in undertaking a comparison between medical and legal reasoning, is asserting that facts, and how they are treated by lawyers, are an essential element in legal reasoning. Ricoeur also rejected the strict dichotomy between explanation and comprehension: see generally Grondin, above n 120, pp 75–92.
156. Masquelet, above n 1, p 121
157. Ibid, at 122.
158. Ibid.
159. See eg D.5.1.76; D.41.3.30.
160. See eg Evershed MR in Re Dick [1953] Ch 343, at 356
161. See the famous Art 4 of the French Code civil.
162. Although this is not to assert that interpretative concepts are absent from medicine. As Neil MacCormick pointed out, a notion such as ‘health’ is an interpretative concept that requires understanding as well as explanation: MacCormick, N Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007) pp 300–301.CrossRefGoogle Scholar
163. Waddams, S Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge, UK: Cambridge University Press, 2003)CrossRefGoogle Scholar; Waddams, above n 102.
164. See in particular MacCormick, Legal Reasoning, above n 110.
165. Ricoeur (above n 82) in many ways raised the same issue: the location of legal reasoning exclusively in the domain of interpretation of a rule or in application of it is inadequate; there is a third aspect that might be termed the location of the ‘fit’ (accommodatio factorum).
166. Masquelet, above n 1, p 119
167. Ibid, pp 94–118.
168. Ibid, p 94
169. Ibid.
170. For instance, to give a simple example, is Donoghue v Stevenson [1932] AC 562 a case about a defective bottle of ginger beer, a defective food item or a defective product? All of these descriptions are ‘correct’.
171. Quoted by W Keegan The Observer 3 November 2013 at 48.