Legal Reasoning

• Related to moral reasoning

• Based on some legal philosophy
• Situated in some context
Legal and Moral Reasoning
Legal and moral reasoning both may involve
prescriptive claims.
Moral example: One should not unnecessarily restrict
the freedom of another.
Legal example: One must not act in a way that
deprives others of their civil rights.
Does one have priority over the other?
Can a moral principle decide a legal issue?
Can a principle of law be used to settle a moral issue?
A Philosophy of Law
 A philosophy of law is, at the very least,
a theory about the justification for
making some act illegal.
Four Philosophies of Law
 Legal moralism
 Harm principle justification
 Legal paternalism
 Offense principle justification
– Remember, each theory gives a basis for
making an act illegal.
Legal Moralism
This philosophy asserts that the law should make
illegal whatever is immoral.
Example: traditional Islamic law
An American challenge: “...the new government, in
Jefferson’s eyes, was to be a shell, an armor, a
protective structure that would allow and perhaps,
in subtle ways, even support the growth of moral
power within the individual members of the
society.” (Needleman, p. 166)
American law does not totally embrace or reject legal
moralism.
Legal Moralism
Would any of these be more promising as a
starting-point for a morality-based legal
system?
• Moral relativism
• Utilitarianism
• Duty theory (with categorical imperative)
• Divine command theory
• Virtue ethics
Harm principle justification

A philosophical issue: Should laws be

as few and as narrowly focused as
possible, with the standard being
that laws simply do an adequate job
of protecting citizens from harm?
Harm principle justification
 An action should be illegal if and only if it
does harm to others.
 Definition issue: What is harm?
(In practice, this definition would evolve.)
 American context: Environmental laws
(Is this minimum protection from harm?)
 Criminal vs. civil proceedings
Legal paternalism

Do lawmakers know more about how you

should live your life than you do?
Should government get to decide what’s right
or good for you?
Legal Paternalism
 Laws for the citizen’s own good
(or at least that’s what they tell you)
 Example: seat belt laws
 More controversial example:
Drug possession laws
When does the punishment for violating one of
these laws do more harm than the prohibited
behavior? Is the law then still right?
Offense principle justification

How offensive does a behavior have to

be before it should become against
the law?
Offense Principle
 Do others have a right not to be
offended?
 In the American context, is freedom
more important than someone else’s
subjective preferences?
 Is the law the place to address any or all
disagreements about what is proper
behavior?
Reasoning involving laws
 Legal vs. moral arguments
 Specialized terminology issues
 Interpreting reported facts of a case
 Precedents
 Role of philosophical or religious
beliefs that conscience holds to be
“above the law”