Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

2.1  Reasoning the law

The way in which judges reason their decisions is a vital component of how the law functions. The process of interpreting statutory provisions and applying case law is far more complicated than a simple formula for logical reasoning would suggest. It seems inevitable that factors outside of the logical and legal reasoning process must play a part in judicial decision-making. The amount of uncertainty inherent even in formal logical reasoning processes gives room for the engagement of non-legal factors to contribute to legal judgments: these factors may include morality, economics, politics and social issues. Judgments often come across as highly reasoned arguments, reaching the only inevitable conclusion based on the law through an objective and rigorous analysis of the evidence – statutes, common law, case law, etc. However, this is as much part of the narrative structure and rhetoric of legal argument as it is a reality.

Judicial decisions are often couched in the language of objectivity and at pains to show that conclusions are based on legal rules and logical argument rather than choices and extra-legal factors. However, the courts have to deal with many issues that require inherently political judgements and/or are not covered by the existing law. In these situations, factors such as the choice of precedent, identification of ratio decidendi, identification of relevant analogies, and even the application of overriding public policy concerns can reveal the devices used to ensure judgments appear both neutral and purely legal, and thereby free from bias and the influence of non-legal factors.

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