ABSTRACT

The final step in the legal reasoning process is to apply the law to the facts to determine the rights and duties of those involved in the situation. The law consists of rules and the underlying policies. Application of the rules requires the use of one of two methods: deduction or analogy. Legal reasoning in the deductive form, however, is often indeterminate. When it is, the lawyer cannot reach a firm conclusion merely by applying the plain language of the rule to the facts. The principal nontextualist or nonformal technique for addressing the indeterminacy of rules, whether embodied in statutes or judicial decisions, is the use of policy judgments. Another approach to addressing the problem of indeterminacy is to examine the case law for analogies to the current situation. The problem of indeterminacy in analogical reasoning is addressed in much the same way that it is in deductive reasoning: by recourse to the underlying policies.