ERIC Number: ED194914
Record Type: RIE
Publication Date: 1980-Nov
Reference Count: 0
Legal Rules and Logical Procedures in Appellate Judicial Decision-Making.
In common law legal systems, the doctrine of precedent directs appellate judges to search out legal rules articulated in previous cases similar to the present case before making their decision. Although this principle is universally accepted, the extent to which legal rules determine decisions varies, since the rule element and judicial discretion element interact. The judge has four alternatives in application of precedent: strict adherence to precedent, interpretation of precedent, choice of precedent, and creation of new precedent. The judge is guided rather than controlled by legal rules, although judging may not begin with a consideration of legal rules but rather with a vaguely formed conclusion, which a judge afterwards tries to find premises to justify. Most legal scholars who are concerned with legal reasoning have focused upon reasoning as a thought process used to justify a decision and have neglected reasoning as a process aimed at reaching a decision. The two processes are not, however, mutually exclusive. Rhetorical scholars who examine appellate opinions would be wise to develop both a rhetorical and a legal sensitivity for decision making, and to recognize that both legal rules and logical procedures function in the making and justifying of judicial decisions. (HTH)
Publication Type: Speeches/Meeting Papers; Opinion Papers
Education Level: N/A
Authoring Institution: N/A
Note: Paper presented at the Annual Meeting of the Speech Communication Association (66th, New York, NY, November 13-16, 1980).