FÁBIO P. SHECAIRA

GARDNER ON LEGAL REASONING

(Accepted 20 January 2014)

ABSTRACT. In Chapters 2, 3 and 7 of his new book, Law as a Leap of Faith, JohnGardner provides the elements of an account of legal reasoning. It is on the basis ofthis account that Gardner defends or supports some of the most important thesesof his book, viz. theses pertaining to how law can be made, to the relationbetween law and morality, and to the legitimacy of judicial law-making. A centralelement of Gardner’s account is a distinction (suggested originally by Joseph Raz)between two forms of legal reasoning, namely, reasoning about the law and rea-soning according to law. In this paper I intend to describe and evaluate Gardner’saccount. Among the critical remarks that will appear in the paper is the claim thatGardner’s concept of reasoning according to law is overly inclusive.

I. INTRODUCTION: GARDNER AND RAZ

John Gardner claims that his new book, Law as a Leap of Faith: Essayson Law in General, does not contain a theory of law. The book issupposed to collect ‘quite a lot of thoughts about law in general’,1

with only the modest ambition that those thoughts will turn out tobe consistent with one another. The book’s project is also describedas that of ‘unbundling’, i.e. ‘separating out disparate thoughts thathave often been regarded, mistakenly, as part of some packagedeal’.2 The unbundling enterprise is undertaken without commit-ment to any firm philosophical agenda and hence without scruplesabout searching for ideas ‘across many supposedly rival positions andtraditions’.3 Gardner sums up his approach to jurisprudence bymeans of a familiar metaphor: ‘I am such an intellectual squirrel(way beyond a mere fox) that I don’t care at all where or how I get

1 John Gardner, Law as Leap of Faith (Oxford: Oxford University Press, 2012), p. v.2 Ibid.3 Ibid., p. vi.

Law and Philosophy � Springer Science+Business Media Dordrecht 2014DOI 10.1007/s10982-014-9206-9

the little truths that I hoard away in the following pages. I may evenoccasionally snatch them from under the hedgehog’s very nose’.4

Gardner deserves praise for his piecemeal, anti-dogmatic, andnon-adversarial ambitions. Of course, this is not to say that heremains perfectly faithful to his avowed ambitions throughout thebook. In the preface, just a few pages after describing himself as anintellectual squirrel, Gardner provides a summary of the principaltheses appearing in his book5:

(1) All law is made by people, but not all law is made intentionally, or evenknowingly, and in particular not all law is made by legislating.

(2) Some sound legal reasoning (usually by the higher courts) is capable ofmaking new law, often accidently.

(3) The content of all law is the content it was given by its makers andchangers (including those who make and change law by applying it),never mind what content they ought to have given it.

(4) This includes the law that determines who counts as an ultimate makeror changer of law (what Hart calls ‘rules of recognition’).

(5) There are therefore no moral criteria (necessary or otherwise) forestablishing what the law on any given matter says.

(6) Nevertheless, there are necessary (conceptually necessary) connectionsbetween law and morality.

(7) A necessary connection: law by its nature holds itself out as morallybinding, even though that may be a mistake or a pretense.

(8) Another necessary connection: legal reasoning is moral reasoning withone or more legal premises.

(9) Also, there is a moral ideal for law, the ideal of legality or the rule oflaw, law’s answerability to which is conceptually determined (i.e. is apart of the very concept of law).

(10) And there is also, although more indirectly, a conceptual connectionbetween law and justice.

(11) Both the connection between law and legality, and that between lawand justice, confirm that law is a modal as opposed to a functional kind;i.e. it is distinguished by how it does what it does, not by why.

(12) All of this, and more, is true of law in general.

4 Ibid., p. vi (footnote omitted).5 Ibid., p. ix. What follows is nearly a quotation of Gardner’s text. I have omitted Gardner’s

parenthetical references to the chapters where the reader will find a defense or affirmation of each thesisin the list.

FÁBIO P. SHECAIRA

Recall that Gardner claims to have no theory of law in his book.Either Gardner is using the word ‘theory’ in an unusually narrow senseor he is too modest to realize that his list of theses is more cohesive andcomprehensive than many sets of claims that other contemporary legalphilosophers would happily announce as genuine theories of law. KevinToh has said not only that Gardner has a theory of law but that thetheory has a very recognizable provenance: ‘[T]here is a theory of lawthat provides a framework for Gardner’s thinking, and it is the theorythat Joseph Raz has constructed over the years’.6 Toh sees this as aproblem. As someone who finds Razian views uncongenial, Tohdeclares himself ‘astonished at how often a substantial point made byGardner, of either philosophical or interpretive nature, is accompaniedby references to Raz’s works, and at how very seldom Gardner regis-ters any disagreements with Raz’.7

‘Astonished’ is a strong word. Gardner may not be quite the squirrelhe says he is in the preface to his book, but his Razian sympathies arenot surprising, and, for the most part, they do not detract from theplausibility of his positions. Gardner has relied on Raz’s work consis-tently for many years. Nine of the eleven essays collected in Law as aLeap of Faith were previously published, and they do not cite Raz moreoften or more deferentially now than they did the first time theyappeared. Moreover, Gardner has a way of presenting Raz’s viewsmore clearly and forcefully than Raz himself, and then of using thoseviews fruitfully in the development of other ideas.

This is what happens, for instance, with Gardner’s treatment ofRazian claims about legal reasoning – in particular, the suggestive dis-tinction between reasoning about the law and reasoning according tolaw.8 Gardner takes Raz’s distinction, re-describes it elegantly andclearly, and then puts it to use in defense of three important theses. Twoof the three theses are identified as (2) and (8) in the list above; theypertain respectively to how law can be made and to how the concept oflaw relates to that of morality. The third thesis – call it the ‘legitimacythesis’ – states that courts can make law in deciding cases without

6 Kevin Toh, ‘Review of Law as Leap of Faith’, Notre Dame Philosophical Reviews (2013), http://ndpr.nd.edu/news/39497-law-as-a-leap-of-faith/.

7 Ibid.8 Joseph Raz, Ethics in the Public Domain (revised edition, Oxford: Clarendon Press, 1995), pp. 326–

340.

GARDNER ON LEGAL REASONING

thereby usurping legislative powers or violating the ideal of the rule oflaw, so long as they make law by reasoning according to law.9

My goal in this paper is to evaluate and suggest some ways ofimproving Gardner’s account of legal reasoning. It is a plausibleaccount that goes a long way towards establishing the three fore-going theses. Yet in several respects it needs to be corrected or atleast made more precise. Section 2 begins to explain Gardner’s ac-count. Section 3 considers how the account is used in support ofthesis (2), thesis (8), and the legitimacy thesis. Since consideringGardner’s arguments for these theses is an important part ofunderstanding his account of legal reasoning, the aims of Section 3are more explanatory than critical, although Gardner’s case for thesis(8), in particular, is the target of some criticism. Section 4 continuesto asses Gardner’s account and identifies a set of problems pertainingto the concepts that make up the definitions of reasoning about thelaw and reasoning according to law (namely, premise, redundancy, anddecisiveness). Section 5, the final section, takes a step back and dis-cusses a jurisprudential assumption motivating Gardner’s account.His commitment to legal positivism is not criticized, but his inat-tention to the phenomenon of ‘theoretical disagreement’ is put inquestion.

II. GARDNER’S ACCOUNT OF LEGAL REASONING

Let us begin with some preliminary remarks about Gardner’s ap-proach to the study of legal reasoning. First, Gardner’s account oflegal ‘reasoning’ is really an account of legal argument. Like manyother legal philosophers, Gardner is interested in discussing howlegal actors, especially judges, publicly give reasons in support oftheir decisions. There is little discussion in Gardner’s book of legalactors’ private reasoning processes, the characteristic elements ofwhich may or may not be fully disclosed in public legal argument.10

Second, Gardner’s approach to legal reasoning is primarily logical(as opposed to dialectical or rhetorical). He does not focus on the

9 The legitimacy thesis is not mentioned in Gardner’s preface in the same list as (2) and (8), but itplays an important part in Chapter 2, where Gardner exposes various myths that have surrounded legalpositivism.

10 The clearest indication that Gardner equates legal reasoning with legal argument is to be found atthe end of the book, in the index of subjects, where there is an entry for ‘legal reasoning (or legalargument)’. Gardner (2012), p. 309.

FÁBIO P. SHECAIRA

interaction between legal arguers or on the standards that governtheir (often protracted) exchanges of reasons, objections, counter-objections, etc. The focus is rather on the internal structure ofarguments understood as discrete sets of claims composed of pre-mises and conclusions. Another way to put the point would be toemphasize that Gardner’s topic is legal argument, not legal argu-mentation (i.e. debate, discussion, dialogue).

Third, Gardner’s account of legal reasoning is essentially non-evaluative. His major aim is to explain what counts as legal argument,not to inquire into what it takes for legal argument to be good or bad.Thesis (2) above makes reference to ‘sound’ legal reasoning, but onegets the impression from Gardner’s essays that ‘genuine’ or ‘true’ couldbe substituted for ‘sound’ without distortion. It is probably the casethat Gardner also regards his examples of genuine legal arguments asbeing sound in some further epistemic or logical sense. But he does notpresent careful arguments to that effect; and the ‘soundness’ of whichhe speaks, even if interpreted to mean that the relevant arguments are(inter alia) logically meritorious, should not be taken to imply deduc-tive validity. For, as we will see, Gardner’s discussion of legal argumentfocuses on cases of argument from analogy and argument weighingreasons for and against a conclusion. Arguments of these types areoften non-deductive and thus cannot be evaluated by reference to thestandard notion of soundness.11

Moreover, although Gardner commits to the legitimacy thesis (as Ibaptized it earlier), he does not present it as being entailed by hisaccount of the defining features of legal reasoning. In his discussion of

11 To be sure, the precise status of these arguments is a matter of debate; but not many people willassert today with confidence that analogical arguments are deductive (for my own position, thatanalogical arguments are partly deductive compounds, see Fábio Shecaira, ‘Analogical Arguments inEthics and Law: A Defence of a Deductivist Analysis’, Informal Logic 33(3) (2013)); and those who wishto assert the deductive nature of pro and con arguments have to grapple with Carl Wellman’s powerfulcase to the effect that they are ‘conductive’, i.e. neither deductive nor inductive. Carl Wellman,Challenge and Response: Justification in Ethics (Carbondale: Southern Illinois University Press, 1971).A terminological note is in order. A deductive argument is understood here as an argument formulatedby someone who (rightly or wrongly) believes in its deductive validity (see Mark Vorobej, ‘DefiningDeduction’, Informal Logic 14(2) (1992)). To call an argument deductive is not to give it praise, for adeductive argument can fail to be deductively valid. In the same way, an inductive argument may beinductively weak. Calling an argument deductive or inductive (or conductive or abductive or whatever)does not settle the question of its logical merits; although it does settle the question of the standards byreference to which the argument should be appraised. It is futile, if not wrong, to dismiss as deductivelyinvalid an argument formulated by someone whose avowed aim is to establish the conclusion asprobable given the evidence. In saying that analogical and pro and con arguments are (often) non-deductive I am not suggesting that they are (often) bad but only that they (often) are not to be judgedaccording to deductive standards.

GARDNER ON LEGAL REASONING

legitimacy, Gardner argues that legal reasoning’s capacity to producenew legal norms does not render it indistinguishable from the sort ofunrestrained, all-things-considered sort of reasoning that is character-istic of (non-subordinate) legislators. No claim is made to the effect thatthe exercise of legal reasoning is legitimate just in virtue of its definingcharacteristics. Gardner’s intention is to insulate judicial law-makingfrom attacks upon its legitimacy that assume that judges can only makelaw by engaging in all-things-considered deliberation.

To sum up, Gardner’s discussion of legal reasoning in Law as aLeap of Faith is chiefly a non-evaluative study of the logical structureof legal arguments (i.e. premise-and-conclusion sets). One centralfeature of Gardner’s account is a distinction between two forms oflegal reasoning. First there is reasoning ‘about what legal normsalready apply to [a] case’12 – reasoning about the law – and then thereis reasoning that has ‘already-valid legal norms among its major oroperative premises, but combines them non-redundantly in the sameargument with moral or other merit-based premises’13 – reasoningaccording to law.

The contrast between ‘already-valid [i.e. existing] legal norms’and ‘merit-based’ norms is consistent with Gardner’s endorsement ofa positivist account of the validity of legal norms.14 According topositivism,15 a norm can only be said to be (already) legally valid if itcan be identified independently of merit-based reasoning. Thatincludes: (i) being able to locate the relevant source-materials (e.g.statutes, precedents, customs) independently of merit-based reason-ing (i.e. by relying on the customary practices of officials in therelevant jurisdiction); and also (ii) being able to derive a norm fromthose source-materials by means of some merit-free mode of inter-pretation (e.g. by ‘looking to existing conventions of interpretation,or to some person’s or constituency’s actual understanding, etc’.16).

The following is a simple example of legal argument used byGardner – call it ‘Example 1’:

12 Gardner (2012), p. 39.13 Ibid.14 Ibid., pp. 19–23.15 Or, at any rate, to Gardner’s interpretation of it.16 Ibid., p. 47. Gardner’s contrasting examples of merit-based modes of interpretation include

‘looking to what would make the norm morally defensible, or more fit for its intended purpose, etc’.Ibid.

FÁBIO P. SHECAIRA

Tortfeasors are liable to pay full reparative damages to those whom they tortiouslyinjure;Jones tortiously injured Smith to the tune of $50;

therefore, Jones is liable to pay Smith $50 in reparative damages.17

Example 1 is a case of reasoning about the law, since its singleoperative premise expresses an already-valid legal norm.18 There isnothing in the argument as formulated to indicate that the norm atissue is legally valid; the example simply assumes that the norm is tobe found in some conventional source-material (e.g. a judicial deci-sion) by appeal to some non-evaluative interpretative procedure (e.g.by reference to the explicit ratio of the judicial decision). To bringout this assumption, one would have to add at least one more line tothe argument, thus transforming it into a composite argument madeup of two linked inferences. For instance, ‘Example 1A’:

A judicial ruling by a high court was issued on the explicit ground that tortfeasorsare liable to pay full reparative damages to those whom they tortiously injure;

therefore, tortfeasors are liable to pay full reparative damages to those whom theytortiously injure;Jones tortiously injured Smith to the tune of $50;

therefore, Jones is liable to pay Smith $50 in reparative damages.19

17 Ibid., p. 186.18 It is with some hesitation that I classify Example 1 as a case of reasoning about the law. Recall that

Gardner explains reasoning about the law as reasoning about what legal norms apply to a case, i.e. as ifits purpose were only to establish a conclusion that the abstract content of the law is such and such at aparticular time. But Example 1 seems to go further: it indicates how a particular legal dispute ought tobe settled, given that the law is such and such. When Raz distinguishes reasoning about the law andreasoning according to law sometimes he seems to have a distinction between theoretical and practicalargument in mind (e.g. ‘Legal reasoning is reasoning either about what the law is or about how legaldisputes should be settled according to law’. Raz (1995), p. 327). I do not think, however, that Gardnerfollows Raz in this respect. Gardner uses the ‘about/according’ terminology in Chapter 2. He does notuse it again in Chapter 7, where Example 1 appears, but in the latter chapter he contrasts Example 1with instances of legal argument where cases are adjudicated not only on the basis of existing legalnorms but also with appeal to merit-based norms. In other words, in Chapter 7 Gardner contrastsExample 1 with arguments that fit the definition of reasoning according to law provided in Chapter 2.All it takes to conclude that, for Gardner, Example 1 is a case of reasoning about the law is theassumption that Chapters 2 and 7 are continuous in their reflections about the different forms that legalreasoning can take. In any event, if I misclassify Example 1, the main points of this paper will not besignificantly affected. The paper focuses on the idea that legal reasoning, in one of its possible forms,combines legal and non-legal premises in the way described by Gardner. My claims about thatdescription would need but slight restatement were Gardner to object to my presentation of hisaccount.

19 The first inference is not valid as formulated. For it to become valid, a further (normative)premise would have to be added to the effect that the explicit grounds for the rulings of the high courtare authoritative or otherwise binding.

GARDNER ON LEGAL REASONING

For the sake of simplicity, Gardner leaves out of his examples thesub-arguments that would be necessary to establish the (source-based, merit-independent) validity of the legal norms functioning asoperative premises.20 The next example is one of reasoning accordingto law (i.e. reasoning that combines valid legal norms non-redun-dantly with moral or otherwise non-legal norms). This type of rea-soning is more complex than reasoning about the law, not becausethe source-based validity of the legal norms is expressly argued forbut because of the way in which the norms that are (ex hypothesi)legally valid interact with other norms that are not legally valid.Consider ‘Example 2’:

Tortfeasors are liable to pay full reparative damages to those whom they tortiouslyinjure [a legal norm];

Jones tortiously injured Smith to the tune of $100;

but the tort was also the breach of a contract between Jones and Smith;

the contract provided for maximum reparative damages of $50 for any breach;

contracts and the limits on damages they set are legally binding as between partiesto the contract [a legal norm];

and it is unjust to let someone avoid a legally binding contractual limit on damagesby instead suing the other contracting party in tort [a moral norm];

therefore, Jones is liable to pay Smith only $50 in reparative damages.21

‘Example 3’ below is a further example of reasoning according tolaw that appears in Gardner’s book. Again, a legal norm occurs as anon-redundant yet non-decisive operative premise alongside a moralpremise:

The Civil Rights Act of 1964 gives everyone the legal right not to be discriminatedagainst in respect of employment on the ground of his or her sex (a legal norm);

denying a woman a job on the ground of her pregnancy is morally on a par withdiscriminating against her on the ground of her sex, even though there is no exactmale comparator to a pregnant woman that would allow the denial to count assex-discriminatory in the technical sense (a moral claim);

20 In Section 5 I will touch on the question of whether Gardner’s simplification may have distortionas its price.

21 Gardner (2012), p. 187.

FÁBIO P. SHECAIRA

therefore, women have a legal right not to be denied a job on the ground of theirpregnancies (a new legal norm);

now, this woman P has been denied a job by D on the ground of her pregnancy;

therefore, D owes P a job.22

Like Example 1A, Example 3 is a composite argument with twoinferences. But in contrast to Example 1A, its composite nature hasnothing to do with the fact that an explicit argument is given insupport of the validity of the legal norm figuring as a premise. Thefirst inference making up Example 3 establishes a new legal norm byappeal to a moral norm and an existing legal norm. The secondinference applies the new legal norm to the facts of the case. The firstpremise of the argument should give us pause. It is supposed toexpress a norm, and yet it is formulated in a way that makes it looklike a factual claim describing the content of a source-material(namely, the Civil Rights Act of 1964). This is a minor blunder whichlikely comes of Gardner’s wish to indicate the source-based prove-nance of the legal norm against discrimination on the ground of sex(in contrast to the merit-based provenance of the new legal normpertaining to discrimination on the ground of pregnancy). The bestway to indicate the provenance of the former would be to addanother premise to the argument, which would then become acomposite of three inferences. Consider ‘Example 3A’:

The Civil Rights Act of 1964 states that everyone has the legal right not to bediscriminated against in respect of employment on the ground of his or her sex;

therefore, everyone has the legal right not to be discriminated against in respect ofemployment on the ground of his or her sex (a legal norm);

denying a woman a job on the ground of her pregnancy is morally on a par withdiscriminating against her on the ground of her sex, even though there is no exactmale comparator to a pregnant woman that would allow the denial to count assex-discriminatory in the technical sense (a moral claim);

22 This is not an exact quotation of Gardner’s text. I have made slight changes to Gardner’sformulation at pp. 39–40 in order to render the form of Example 3 analogous to that of Examples 1, 1A,and 2.

GARDNER ON LEGAL REASONING

therefore, women have a legal right not to be denied a job on the ground of theirpregnancies (a new legal norm);

now, this woman P has been denied a job by D on the ground of her pregnancy;therefore, D owes P a job.23

III. THE USES OF GARDNER’S ACCOUNT

What I have called Gardner’s ‘account of legal reasoning’ is com-posed of three elements: a distinction between two forms of legalreasoning – namely, reasoning about the law and reasoning accordingto law –, a definition of each form of legal reasoning,24 and a smallset of examples of legal arguments. Example 1 is a case of reasoningabout the law; Examples 2 and 3, cases of reasoning according tolaw.25 We will come back to these examples. For now, let us con-sider how Gardner puts his account to use in support of the threetheses mentioned earlier in the paper. Consideration of the ‘uses’ ofGardner’s account will serve to clarify the account and also to set thestage for a critique of it in Section 4.

Thesis (2) states that ‘some sound legal reasoning (usually by thehigher courts) is capable of making new law, often accidently’. Gardnerrecognizes that courts routinely make new legal norms of a non-generaltype when they issue binding rulings, such as the ruling that Jones isliable to pay Smith $50 in reparative damages. This is a legal normbecause

[the] making of the ruling has legal consequences: it changes the application ofother… legal norms. Not until the ruling has been made in his favour, forexample, can Smith lawfully enlist petty officials who will auction Jones’s property,or attach Jones’s earnings.26

23 The first inference is not valid as formulated, viz. in the absence of a further normative premisestating, say, that the terms of the Civil Rights Act are binding.

24 The word ‘definition’ may seem strong. Indeed, it is unlikely that Gardner has in mind a definitivelist of necessary and sufficient criteria for the application of the concepts reasoning about and reasoningaccording to law. I do believe, however, given the work they are supposed to do in his book, thatGardner’s explanations of these concepts are meant as fairly precise statements of their meaning.

25 To be clear, Examples 1A and 3A were introduced here as variations on Gardner’s examples; theyare not found in Gardner’s book.

26 Gardner (2012), p. 186.

FÁBIO P. SHECAIRA

But thesis (2) is not concerned with this relatively trivial type ofjudicial norm creation; it refers to the more contentious judicial abilityto create new general legal norms in the process of deciding concretecases. Example 3 includes such a legal norm: Women have a legal rightnot to be denied a job on the ground of their pregnancies. And,implicitly, so does Example 2: Tortfeasors are liable to pay full repar-ative damages to those whom they tortiously injure, except where thetort is also a breach of contract and awarding full reparative damagesfor the tort would allow the recipient to circumvent a legally bindingcontractual limit on damages for the breach of contract.27 To be sure,the mere fact that a court refers to or implicitly relies on such generalnorms does not turn them into valid law:

In virtue of (and subject to) the judge’s legal powers to decide cases on this subject,these new norms become legally valid in the process, at least for the purposes ofthe present case. If the judge sits in a sufficiently elevated court, then, dependingon the workings of the local stare decisis doctrine, the new norms may alsobecome legally valid for the purposes of future cases, subject always to futurejudicial powers of overruling and distinguishing.28

Gardner’s argument for thesis (2) is unobjectionable. If Examples2 and 3 are cases of sound (i.e. genuine) legal argument, then,keeping in mind the proviso that the extent of a judge’s law-makingpowers depends (inter alia) on the shape of the local stare decisisdoctrine, it can be said that some sound legal reasoning is capable ofmaking new law. We will later discuss whether Gardner’s definitionof reasoning according to law might be so broad as to cover otherargument patterns, beyond those instantiated by Examples 2 and 3,that are not plausibly deemed sound types of legal reasoning. Fornow, notice that the status of Examples 2 and 3 would hardly raisecontroversy. Example 3 looks like a case of legal argument fromanalogy. Gardner characterizes it as a ‘classic example of legal rea-soning’.29 Other authors have gone further, treating argument fromanalogy as the ‘basic pattern of legal reasoning’30 and as an ‘identi-

27 Ibid., p. 188.28 Ibid., pp. 39–40.29 Ibid., p. 40 (my emphasis).30 Levi, Edward, An Introduction to Legal Reasoning (Chicago, IL: University of Chicago Press, 1949),

p. 1.

GARDNER ON LEGAL REASONING

fying characteristic not only of legal reasoning itself but also of legaleducation’.31 Indeed, Gardner seems to be safe in his assumption thatExample 3 is a case of sound legal reasoning.

I am inclined to say the same about Example 2. It is a case of a conflictof legal norms that (ex hypothesi) is not resolvable by appeal to any precisecriterion set out in a further legal norm (e.g. lex specialis derogat lexgeneralis). That being the case, the appeal to a moral norm seems a legallylegitimate way of resolving the conflict: ‘It is a legal argument onlybecause the question of how to apply the two [legal] norms – and inparticular which of them to depart from – makes the moral normargumentatively relevant’.32 Reliance on merit-based considerations isunavoidable even when the conflict of norms is resolved by means ofmore structured deliberative procedures (short of a precise criterioncomparable to, e.g., lex specialis). Think, for instance, of proportionalitytests employed by constitutional courts in order to resolve conflictsbetween fundamental rights or between rights and policies.33

In sum, Examples 2 and 3 are instances of sound legal argumentpatterns (respectively: arguments dealing with a conflict betweennorms and arguments from analogy) where new general legal normsresult from the combination of source-based legal norms with merit-based norms. So, again, Gardner is right to say that some sound legalreasoning is capable of creating new law. Now, the case for thesis (8)is more dubious. Consider again how Gardner formulates that thesis:‘Another necessary connection [between law and morality]: legalreasoning is moral reasoning with one or more legal premises’.34

Shouldn’t Gardner have said (as he did in formulating thesis (2)) thatsome legal reasoning – viz. reasoning according to law, but not

31 Weinreb, Lloyd, Legal Reason: The Use of Analogy in Legal Argument (New York: CambridgeUniversity Press, 2005), p. vii.

32 Gardner (2012), p. 188.33 For an explanation of the limited power of constraint that proportionality tests exercise upon the

deliberation of legal actors, see Frederick Schauer, ‘Balancing, Subsumption, and the Constraining Roleof Legal Text’, in Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford:Oxford University Press, 2012). For a more technical discussion about the logical structure of con-ductive arguments (focusing on examples of proportionality reasoning in the Supreme Court of Can-ada), see Derek Allen, ‘Conductive Arguments and the Toulmin Model: A Case Study’, in J. AnthonyBlair and Ralph Johnson (eds.), Conductive Argument: An Overlooked Type of Defeasible Reasoning (London:College Publications, 2011).

34 Gardner (2012), p. ix.

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reasoning about the law35 – is moral reasoning with one or morelegal premises?36

Why does Gardner suddenly elide the distinction between thedifferent forms of legal reasoning in his formulation of thesis (8)?Why does he claim that legal reasoning simpliciter – which readerswould naturally take to include reasoning about the law – combinesmoral and legal premises? There are at least two alternative expla-nations for Gardner’s formulation of thesis (8). One explanation isthat Gardner makes a mistake that might come of his wish to putforward a strong claim about the necessary connections between lawand morality. After all, it is more striking to say that legal reasoning(simpliciter) is moral reasoning than to say that legal reasoning in oneof its possible forms is moral reasoning. The origin of this putativemistake could be traced to one specific passage, where Gardnerbegins to slip from using ‘legal reasoning’ in a generic sense to usingit as a synonym of ‘reasoning according to law’:

For judges admittedly have a professional obligation to reach their decisions bylegal reasoning. And even in a case which cannot be decided by applying onlyexisting legal norms it is possible to use legal reasoning to arrive at a new normthat enables (or constitutes) a decision in the case, and this norm is validated as anew legal norm in the process.

Obviously, legal reasoning, in this sense, is not simply reasoning about what legalnorms already apply to the case.37

From this point on, in Chapter 2, Gardner drops the qualification(‘in this sense’) and appears to use ‘legal reasoning’ and ‘reasoningaccording to law’ interchangeably. Eventually he speaks of judgesdoing things by ‘legal reasoning, or according to law’.38 The genericterm stops being used generically and acquires what originally wasone of its two special senses. It could be, thus, that thesis (8) wasformulated once Gardner had already fused the two terms in hismind.

35 Recall that I am using the phrase ‘reasoning about the law’ to refer to practical arguments thatapply existing legal norms to the facts of a case (as opposed to arguments that simply state the abstractcontent of the law at a given moment). See footnote 18 above.

36 In fact, Gardner seems to admit to this where he says that ‘[legal] arguments often need moralpremises’. Gardner (2012), p. 190 (my emphasis).

37 Ibid., p. 39.38 Ibid., p. 41 (my emphasis).

GARDNER ON LEGAL REASONING

A different explanation is that Gardner makes no simple mistake –no half-conscious terminological blunder – in his formulation ofthesis (8), but is deliberately pointing to the fact that all legal rea-soning (including reasoning about the law) is subordinate to moralreasoning. If legal actors engage in legal reasoning it is because they– conscious as they must be about the moral significance of thatengagement – regard themselves as having moral reason to do so.Even if this is not how legal actors truly think (i.e. even if sometimesthey engage in legal argument for undisclosed prudential reasons orfor no determinate reason at all) Gardner would insist that theynecessarily speak as if they had moral reasons for arguing legally. Forlegal actors necessarily put forward moral claims when arguing forthe existence of ‘legal obligations, rights, permissions, powers, lia-bilities, and so on’.39 Gardner appears to be arguing along these lineswhen he says that moral premises enter into legal reasoning not invirtue of any source-based authorization to that effect but ratherbecause legal reasoning is a morally significant practice that is boundby moral principles:

Should we suppose that moral norms of justice are relevant to a legal argumentlike that in [Example 2] only because of some (undisclosed) legal norm accordingto which moral norms, or moral norms of justice, are legally binding or at any rateadmissible in legal argument? Of course not. This turns the world upside down.The main puzzle about law, as a practice, is not the problem of how legal prac-titioners, including judges, come to be legally permitted or required to apply moralnorms. It is the problem of how legal practitioners come to be morally permitted orrequired to apply legal norms. Legal practitioners should act morally in their workfor the same reason that doctors and soldiers should: because their work affectspeople’s lives in morally significant ways. There is no further problem of why theyshould act morally. Whereas there is a further problem – a moral problem – ofwhy they should defer to legal norms when they do so.40

A similar argument was once offered by Raz:

Given that legal decisions have a significant impact on people’s lives… they mustat least appear to be morally acceptable. This means that legal reasoning can beautonomous only on the basis of the two-stage argument, i.e. only if there is abody of considerations which can be applied without using moral considerations,which is such that its application by the courts appears to be morally acceptable.

39 Ibid., p. 132.40 Ibid., p. 189.

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The doctrine of authority provides such sanction for the application of source-based considerations.41

Raz asserts the priority of moral reasoning over legal reasoning andholds that a legal argument can only be described as autonomous (i.e.as relying exclusively on source-based considerations) insofar as it isregarded as composing the second stage in a two-part argument, thefirst stage of which appeals to moral considerations that sanction theuse of legal reasoning. On this view, even an apparently simple argu-ment like Example 1 would amount to the second inference in acomposite argument beginning with a moral sub-argument (in italics):

It is morally permissible for courts to adjudicate cases by appeal to source-based norms;

among the source-based norms of the legal system there is one to the effect that tortfeasorsare liable to pay full reparative damages to those whom they tortiously injure;

therefore, tortfeasors are liable to pay full reparative damages to those whom theytortiously injure;Jones tortiously injured Smith to the tune of $50;

therefore, Jones is liable to pay Smith $50 in reparative damages.

If we assume that Gardner wants to endorse Raz’s two-stageconception of legal argument, then we can make sense of the claimthat ‘legal reasoning is moral reasoning with one or more legalpremises’. For what is the argument above but a complex moralargument with one legal premise (to wit, the first premise of thesecond inference)? It is still not clear to me, however, whether thesecond explanation is better than the first explanation of Gardner’scase for thesis (8). The first explanation suggests that thesis (8) shouldbe understood as a poorly worded claim to the effect that reasoningaccording to law (not legal reasoning in general) is moral reasoningwith one or more legal premises. The second explanation assigns nosimilar mistake to Gardner but, on the other hand, portrays the casefor thesis (8) as relying on a contentious aspect of the Razian theorythat supplies the framework for Gardner’s book. Behind the viewthat all legal reasoning is moral reasoning lies, it seems, the idea thatthe normative claims made by legal actors are necessarily moralclaims. If we accept that judges’ statements of source-based legal

41 Raz (1995), p. 334.

GARDNER ON LEGAL REASONING

norms (e.g. ‘tortfeasors are liable to pay…’) are really statements ofmoral norms (‘tortfeasors are morally liable to pay…’), then we havereason to believe that judges must assume the existence of somemoral authorization to apply the norms issuing from the relevantsources. The question, of course, is whether we should indeed acceptthat legal statements are moral statements.42

So, the trouble with the second explanation is that it renders thecase for thesis (8) dependent not only on Gardner’s plausible accountof legal reasoning but also on other, less persuasive, aspects of hislegal theory. Not knowing what is more charitable – to suggest thatthesis (8) is poorly worded or instead that it rests on a contentiousargument – I think it is best to leave the question open and allowGardner to explain exactly what he means by thesis (8).

Gardner’s plausible case for the legitimacy thesis was mentionedin Section 2. He does not claim that his account of legal reasoninghas any direct moral implications; instead he claims that the accountserves to refute one of the assumptions underlying a well-knownargument against the legitimacy of judicial law-making. Positivistsbelieve that law is often indeterminate with respect to particularcases. This belief is grounded on the view that all law is positive lawand that positive law, dependent as it is on the actions and intentionsof human agents with limited foreknowledge, cannot fail to havesome gaps. Judges are not normally empowered to refuse to adju-dicate a case on the ground that the law does not provide a uniquesolution to it. When law is indeterminate, judges must adjudicate byhaving recourse to extra-legal considerations. But, it is thought,judges also have a constant duty to apply the law. When they dootherwise, they act as legislators, creating new legal norms on thebasis of non-legal considerations. Not only is this to usurp legislativepower, it also involves a violation of the ideal of the rule of law. Forjudicial legislation is typically retroactive: it occurs in the context of alegal dispute involving parties who did not act with the benefit ofknowing in advance the law that would be applicable to them.

42 This is precisely one of the ‘Razian commitments’ that Kevin Toh complains about in his reviewof Gardner’s book (see text accompanying footnote 6 above). I agree that Gardner’s case for thisposition is not entirely convincing. But this is not to accept the suggestion (which comes with thephrase ‘Razian commitment’) that Gardner accepts Raz’s view uncritically or as a result of some sort ofbias. In fact, Gardner argues carefully for the view at issue between pages 132 and 139 of his book. I amleft unconvinced but not unimpressed by his efforts. For a detailed analysis and critique of Gardner’sargument, see the paper by Luís Duarte d’Almeida and James Edwards in this symposium.

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Gardner acknowledges that, given the indeterminacy of law,judges must sometimes appeal to non-legal considerations. In doingso, they may make new law. But Gardner insists that this judicialexercise in law-making is not to be confused with legislation. Leg-islation is not constrained by positive law.43 The power to legislate isthe power to change structural features of positive law, oftenabruptly. Judges who make law, on the other hand, can do so byreasoning according to law, in a much more piecemeal and con-trolled manner. The moral considerations used by judges do notoperate freely but are combined with legal considerations in argu-ments that resemble Examples 2 and 3. So long as judges make lawby these means, they are not ‘legislating’ – not in any strong sense ofthe word:

What is really morally important under the heading of the separation of powers isnot the separation of law-making powers from law-applying powers, but rather theseparation of legislative powers of law-making (i.e. powers to make legallyunprecedented laws) from judicial powers of lawmaking (i.e. powers to develop thelaw gradually using existing legal resources). Similarly, the only morally crediblerule-of-law ban on retroactive legislation is just that; namely a ban on retroactivelegislation, not a ban on the retroactive change of legal norms, even when thatchange is made in accordance with law.44

IV. PROBLEMS IN GARDNER’S ACCOUNT

One problem in Gardner’s account pertains to his use of the word‘premise’. Legal reasoning is distinguished by Gardner from othertypes of reasoning (e.g. moral, political) by the presence of already-valid legal norms among its operative premises. Legal reasoningitself can take two forms, the difference between them relating to thedecisiveness of the legal norms employed as premises. In reasoningabout the law, the legal norms are decisive (i.e. together with thefacts of the case, they establish a definite ruling). In reasoningaccording to law, the legal norms are non-redundant yet non-deci-sive (i.e. to establish a ruling, they must be combined with other,

43 Gardner’s point presumably applies to non-subordinate legislators whose powers are not closelycircumscribed by source-based duties concerning the goals their laws should promote. For discussion,see Raz (1995), pp. 241–244, on the directed powers of subordinate legislators.

44 Gardner (2012), p. 41.

GARDNER ON LEGAL REASONING

merit-based norms). Recall Example 2 (now with parenthetical let-ters, for ease of reference):

(A) Tortfeasors are liable to pay full reparative damages to those whomthey tortiously injure;

(B) Jones tortiously injured Smith to the tune of $100;(C) but the tort was also the breach of a contract between Jones and Smith;(D) the contract provided for maximum reparative damages of $50 for any

breach;(E) contracts and the limits on damages they set are legally binding as

between parties to the contract;(F) and it is unjust to let someone avoid a legally binding contractual limit

on damages by instead suing the other contracting party in tort;(G) therefore, Jones is liable to pay Smith only $50 in reparative damages.

Gardner says that the legal standing of this argument is due to itshaving two already-valid legal norms as operative premises: namely,claims (A) and (E).45 But notice that there is a conflict between thenorms expressed in (A) and (E).46 The moral norm in (F) serves toresolve that conflict by tipping the balance in favor of the conclusionsupported by the norm in (E). The norm in (A) is overridden in theprocess and therefore plays no role in the justification of the con-clusion, (G). Yet Gardner deems (A) a premise. This is unusual, sincepremises are most often defined as claims put forward in support of(or as evidence for) a conclusion.47 Is this an innocuous termino-logical quirk in Gardner’s book? Not really. Gardner’s use of theword ‘premise’ invites a problem that can be perceived if we recallthat legal norms figure in legal reasoning not only as premises butalso non-redundantly.

Since a premise, for Gardner, need not be a claim put forward insupport of a conclusion, then a non-redundant premise presumablyis any consideration that somehow affects (i.e. is relevant to) thetruth or tenability of the conclusion, positively or negatively. But if

45 Ibid., p. 188.46 To be precise, the conflict is not between the norms themselves but between the consequences

that they entail in conjunction with other premises of the argument.47 It is unusual but not unprecedented: Wellman understands a premise as ‘any consideration…

which counts or is thought to count for or against the conclusion’. Wellman (1971), p. 90 (my emphasis).For discussion of Wellman’s unusual definition, see Rongdong Jin, ‘The Structure of Pro and ConArguments: A Survey of the Theories’ in Blair and Johnson (2011), pp. 11–13. Jin refers to Irving Copi’swidely known textbook on logic, where premises are defined as propositions ‘affirmed (or assumed) asproviding support or reasons for accepting the conclusion’. Ibid., p. 11.

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that is the case, then the following argument would have a non-redundant legal norm as an operative premise and would conse-quently fit Gardner’s definition of legal reasoning (more specifically,of reasoning according to law). Consider ‘Example 4’:

Homicide is to be punished by death (an already-valid legal norm);

Jones committed homicide;

but the death penalty is morally repugnant (a legally unprecedented moral norm);

therefore, Jones is not to be punished by death.

The source-based legal norm in the first line of the argumentfigures as a non-redundant premise (in Gardner’s sense), since itcounts against the conclusion that Jones should be exempted from thedeath penalty. The fact that it is overridden by a moral norm doesnothing to change its standing as a non-redundant premise. Yet it ishard to accept the implication that Example 4 is a case of reasoningaccording to law. Gardner’s definition is overly inclusive as it stands.

It could be suggested that, to correct the problem, Gardner mightsimply turn to the traditional use of the word ‘premise’. He couldthen insist that legal reasoning is exemplified by arguments thatinclude non-redundant legal norms that count (or are thought to count)in favor of the ruling, even though they may fail to be decisive andthus require the support of some additional moral norm. Examples 2and 3 would still fit the amended definition, whereas Example 4(fortunately) would be excluded. However, this adjustment takescare of only part of the problem of over-inclusion. There are otherdubious cases of legal argument that would still fit Gardner’s defi-nition, even if the word ‘premise’ were taken in its traditional sense.Consider ‘Example 5’:

The liberty of the individual is to be protected against state interference (analready-valid legal norm);

the liberty of the individual encompasses the right to purchase or sell labor;

therefore, the liberty of the individual to purchase or sell labor is to be protectedagainst state interference;

therefore, the liberty of bakery employees to agree to work for more than 60 h aweek or 10 h a day is to be protected against state interference.

GARDNER ON LEGAL REASONING

Example 5 is inspired by the famous case of Lochner v. New York.48

Like the majority argument in Lochner, Example 5 would probablyraise some eyebrows. Lochner is often regarded as involving a dis-ingenuous attempt to present a decision resting on a highly con-tentious moral-political argument as if it flowed inexorably from themeaning of abstract terms like ‘liberty’. Notice that, on Gardner’sdefinition, Example 5 is no less a case of legal reasoning thanExamples 1, 2 and 3. In Example 5 there is an operative premiseexpressing a valid legal norm (in the first line of the argument) whichis non-redundant yet non-decisive. The problem is that the legalpremise is highly indeterminate. The argument relies on a moralpremise (in the second line) whose use is hardly circumscribed by themeaning of the deeply contested phrase ‘liberty of the individual’.Although there is no indication of this in the argument as formu-lated, there is ample space for reasonable debate about the meaningand implications of the phrase.

Now, Example 5 does not work against Gardner’s account inexactly the same way as Example 4. It is straightforwardly coun-terintuitive to classify the latter as an example of reasoning accordingto law, since it involves a departure from a legal norm on exclusivelymoral grounds. The moral consideration in Example 5, on the otherhand, complements the relevant legal norm, which is not defeated oroverridden in the process. We should, however, be able to perceivethe challenge posed by Example 5 once we recall the uses ofGardner’s account, in particular the case for the legitimacy thesis.For what is the difference between Example 5 and the sort of rea-soning we expect from senior legislators who are constrained bynothing beyond the broad terms of a terse constitutional text? Theplausibility of Gardner’s case for the legitimacy thesis rests on theidea that judicial law-making powers are not illegitimate insofar asthey consist in ‘powers to develop the law gradually using existinglegal resources’.49 But there is nothing gradual about the reasoningin Lochner or in Example 5. Perhaps Gardner’s account is notstraightforwardly over-inclusive in respect of Example 5; but theaccount still fails to support the legitimacy thesis insofar as it includes

48 198 U.S. 45 (1905).49 Gardner (2012), p. 41.

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arguments where law is not made in piecemeal and controlledfashion.

It is not easy to find a way of helping Gardner to avoid theproblem of over-inclusion. Part of the difficulty stems from the factthat the moral considerations to which a legal actor resorts can bemore or less closely circumscribed by existing legal standards. Thereis a categorical difference (i.e. a difference in kind) between rea-soning about the law and reasoning according to law. But within thelatter category there are many different degrees of control that theexisting legal norms can exercise over complementary merit-basedconsiderations. As Timothy Endicott has put it, a new norm orstandard ‘that is repugnant to the existing posited law would cer-tainly be ‘new’ in a stronger sense than a standard that is narrowlycontrolled by [though not yet a definite part of] the existing law’.50

As a consequence, there are intermediate degrees between clearexercises in legislation and clear exercises in judicial law-makinghedged by legal reasoning. The problem is to know where to wedraw the line. How narrowly must law-making be controlled for it tobe properly exercised by judges?

In the absence of a plausible answer to that question, it might payto consider a distinction that Gardner fails to discuss. It is the dis-tinction between legally authorized reasoning and legally unauthorizedreasoning. This distinction is not to be confused with the distinctionbetween legal reasoning and non-legal reasoning. Legal analogies are‘classic’ examples of legal reasoning. Their legal character does notentail, however, that a judge is authorized to use them in everycontext. There are countries, for instance, that restrict the use ofanalogies in criminal law cases, especially where the analogies maybe used to establish a ruling that does not favor the defendant. Thatis a case of legal reasoning that does not enjoy legal authorization.On the other hand, there are cases of legally authorized non-legalreasoning. For instance, the Swiss Civil Code instructed judges, inthe absence of other aids to statutory interpretation, to enforce therule they would adopt if they were legislators themselves.51

50 Timothy Endicott, ‘Adjudication and the Law’, Oxford Journal of Legal Studies 27(2) (2007), p. 319.51 John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the

Legal Systems of Europe and Latin America (3rd edition, Palo Alto, CA: Stanford University Press, 2007),p. 46.

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In fulfilling their duties, judges should not only pay heed to thelegal standards more or less directly pertinent to the facts of a case.They should also review any higher-level standards that regulate theapplication of the immediately relevant standards. For higher-levelstandards may proscribe what otherwise would be regarded a soundform of legal reasoning, and they may also render lawful a form ofargument that judges would normally not be allowed to engage in.The latter possibility is more important for our purposes. There canbe no talk of usurpation of legislative powers by a judge who createslegally unprecedented norms with the authorization of legislatedpositive law.52 It would also be wrong to accuse such a judge ofdisregarding the rule of law if she acts under the protection of ahigher-order source-based legal rule. The rule of law does not dis-criminate in principle among the levels at which the various source-based rules of a legal system are located.

In other words, the legitimacy of judicial law-making does notdepend only on the degree to which judicial reasoning is constrainedby existing legal norms. Indeed, prior to asking whether the law isable to constrain legal reasoning, a judge should ask if the law itselfprescribes that legal reasoning be constrained. Let us go back toExample 5 (my version of the majority argument in Lochner). Byhypothesis, there is no express legal authorization in that case forjudges to engage in non-legal reasoning (i.e. there is nothing like theprovision of the Swiss Civil Code mentioned earlier). But there isalso a shortage of minimally precise legal standards by which adutiful judge might abide. If there is anything morally or politicallyproblematic here it is the shortage of precise legal standards itself,not the law-making that is exercised by judges as a consequence ofthe shortage. The shortage may have a number of causes, only oneof which is legislative incompetence or indifference. Another salientcause, especially where constitutional documents are at issue, is adefinite (albeit often undisclosed) legislative wish to avoid settling

52 The word ‘legislated’ is important here. Some may question the legitimacy of a court’s ability tolegislate (i.e. to forge a new general legal norm on the basis of all-things-considered deliberation) if thatability is provided for in case law. A judge does not usurp legislative power if she was awarded power tolegislate by the legislators themselves. But it may be argued that a judge exceeds the limits of herpowers if she legislates on the basis of a prior judicial authorization which lacks legislative sanction. Forinstance, there is a stronger argument to be made for the legitimacy of judicial review in those countrieswhere the institution is legislatively authorized than in those countries, such as the US, where its originslie in case law.

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controversial moral or political issues that are best resolved byjudges in the context of particular cases.

V. BACK TO GARDNER’S ASSUMPTIONS

The upshot of the previous section is that Gardner’s account of legalreasoning, though generally plausible, has some significant limitations.The account provides definitions of different forms of legal argument –in terms of valid legal norms operating as non-redundant but notnecessarily decisive premises – which need to be adjusted in order toavoid a problem of over-inclusion. One way of mitigating the problemis for Gardner to alter his understanding of a premise, i.e. to make itinclude only considerations that count or are thought to count in favorof a conclusion. But even if Gardner did alter his notion of a premise,we would still be able to find examples of arguments with non-redundant legal norms figuring as premises that should not be regardedas examples of genuine legal arguments – at least not for the purpose ofestablishing the legitimacy thesis. In the previous section I suggested adistinction (between legally authorized and legally unauthorized rea-soning) that may serve to supplement Gardner’s account and to someextent help him deal with the issue of legitimacy.

The problems in Gardner’s account – over-inclusion and need ofsupplementation – are limitations that pertain to the definitions ofreasoning about the law and reasoning according to law. Recall,however, that these definitions do not exhaust the components ofGardner’s account. As we discover problems affecting the definitions,Gardner’s examples emerge as the mainstay of his account. Examples2 and 3, in particular, continue to serve well to pump our intuitionstoward the view that reasoning may be assigned legal standing evenif it includes legally unprecedented moral norms as premises. Theproblem is to associate these examples with general definitions thatare not affected by the problem of over-inclusion. I will not attemptto provide my own definitions here, but I will suggest a precautionthat Gardner may want to keep in mind if he eventually agrees thathis definitions should be revised.

To put it simply, Gardner may want to expand his set of exam-ples. Gardner’s current sample is not only small; it seems to havebeen selected on the basis of contentious jurisprudential assump-tions. Gardner’s examples of legal reasoning invariably involve an

GARDNER ON LEGAL REASONING

appeal to already-valid legal norms. The examples vary in respect ofhow the legal norms interact among themselves or with merit-basednorms, but they all involve existing legal norms. It could be arguedthat Gardner’s focus on arguments that rely on existing legal normsis explained by his commitment to legal positivism. Positivistsassume that valid law can be identified by appeal to non-evaluative,source-based reasoning; and if that is the case, then there is nothingof particular interest to be said about reasoning regarding what thecontent of the law is at a given moment except that it ‘relies on thefact that certain actions took place, that they were undertaken withcertain intentions, that the rest of the law is thus and so, etc’.53 Forpositivists, in other words, arguments concerning the content of thelaw are non-evaluative and thus have nothing to teach us about howlegal norms may interact with moral norms in legal reasoning.

But the point I want to make in this final section has little to dowith positivism. Even if Gardner is right to hold that the validity of alegal norm is not dependent on its merits, he is not thereby free toignore the sorts of arguments that legal actors often formulate in(what they conceive as) attempts to discern the content of the law.Gardner may want to insist that judges are presenting their ownreasoning inaccurately when they, while relying on moral consid-erations, claim to do no more than search for existing law. The pointis that legal actors, mistaken or not, often have discussions aboutwhat the law is that involve appeal to merit-based considerations;and the arguments that they formulate in the context of such dis-cussions do not clearly fall into the patterns of argument thatGardner explicitly considers with Examples 2 and 3. Could Gardnersimply dismiss those arguments on the assumption that they do notcount as genuine cases of legal reasoning?

The types of argument that Gardner leaves out of his accounthave been taken to be at the center of legal practice by legal theoristsof different schools of thought. Karl Llewellyn, for instance,famously held that statutes can be read according to different canonsof interpretation, thereby yielding conflicting solutions to legalcases.54 In the same vein, it could be said that a statutory provisionwill have different effects for a legal case depending on whether it is

53 Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009), p. 378.54 Karl Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about

How Statutes are to Be Construed’, Vanderbilt Law Review 3 (1950).

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interpreted by an intentionalist, a textualist, or a purposivist judge.And the point could be generalized to apply to other source-mate-rials: a precedent, for instance, will have different effects dependingon whether its binding element – its ratio – is associated with thematerial facts of the case, the explicit rationale for the ruling, themoral principle justifying a line of related cases, and so on.

Disagreement about proper interpretative methodology is alsoemphasized by Ronald Dworkin in his famous discussion of ‘theo-retical disagreement’55 in law, a broad category which also includesdisagreement about what source-materials are relevant to a case.56

The latter sort of disagreement goes even deeper than the type ofdisagreement discussed by Llewellyn; for prior to determining howone is to go about interpreting any given bit of source-material, onemust determine whether that bit of source-material is relevant to thecase (e.g. is the case regulated by statute or precedent?).

It could of course be argued that Llewellyn, Dworkin and othershave exaggerated the centrality to or the pervasiveness in legalpractice of different forms of theoretical disagreement.57 But itspresence in law, if mostly at the appellate level, is not to be ignored.Common lawyers might be especially concerned with the fact thatGardner puts no argument in standard form that could represent ajudge’s attempt to discern a doctrine running through a line ofrelated cases. That is a ‘classic’ form of legal argument (is it not?), butit involves an attempt (prior to applying any legal norm) to establishthat certain legal norms are to be applied as valid.

There is no guarantee that Gardner will arrive at an improveddefinition by expanding his set of examples. But if Gardner did ex-pand his sample we would have less reason to worry that his per-ception of legal practice may be skewed by contentious theoreticalcommitments. It is hazardous to pursue an explanation of legalreasoning while ignoring precisely those types of argument that havegenerated most jurisprudential discussion.

55 Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), Chapter 1.56 For discussion of the several types of disagreement that count as theoretical, see Dale Smith,

‘Theoretical Disagreement and the Semantic Sting’, Oxford Journal of Legal Studies 30 (2010), pp. 641–642.57 For an argument to that effect, see Brian Leiter, ‘Explaining Theoretical Disagreement’, The

University of Chicago Law Review 76 (2009) (claiming that ‘theoretical disagreements are relativelymarginal phenomena within the scope of a general theory of law, emerging primarily at the pinnacle ofthe pyramid of legal questions that arise’. Ibid., p. 1249). For another argument along the same line, seeFábio Shecaira, ‘Dealing with Judicial Rhetoric: A Defence of Hartian Positivism’, Australian Journal ofLegal Philosophy 37 (2012).

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ACKNOWLEDGMENTS

For helpful comments on earlier versions of this paper I would like to thankLuís Duarte d’Almeida, Ben Hamby, Lucas Miotto, Stefan Sciaraffa, and areferee for Law and Philosophy.

Faculty of LawFederal University of Rio de Janeiro,Rio de Janeiro, BrazilE-mail: fabioperin@direito.ufrj.br

FÁBIO P. SHECAIRA