Dan Epstein
George Washington University
This paper examines the received review of legal reasoning. This received view is articulated as the rule of law as it applies to judicial reasoning. The rule of judge-made law means that legal reasoning is rule-based. Problematically, judicial reasoning employs tools outside established legal rules and, furthermore, these tools depend on values that lack rational justification. The received view of legal reasoning therefore seems wrong. A number of legal theorists take the rejection of legal rationalism as proof that law is not a rational enterprise. I argue, however, that merely because legal rationalism is a wrong theory of jurisprudence does not suggest that law is not a rational enterprise. Notwithstanding this argument, if the received view of legal reasoning cannot sufficiently account for its own legitimacy, then the rule of law seems threatened. If the rule of law is something we take as important and meaningful, a better theory of the legitimacy of legal reasoning is needed.
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