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The common law model rests on assumptions that underlie both theory and practice and this will become clear as legal study is undertaken. It is said that in fact it rests on notions of the ideal type of rationalist tradition (Twining and Miers (1999)) This model involves the pursuit of ‘truth’ through rational means. Can you make accurate present judgements based on reasoning in cases occurring in the past on similar facts? This is certainly what the doctrine of precedent demands. The English legal system has developed principles designed to draw out that past reasoning and use it in the present and to obtain consistent decision making. Such a pursuit has as a high, but not overriding priority, the securing of justice under law. The model of adjudication is instrumentalist in that the pursuit of truth through reason is only a means to achieving a particular type of justice: the implementation of substantive law. • The mode of decision making is rational not irrational, and because it is highly aspirational its practice is often critiqued. • The mode of reasoning is inductive (to be explained below). Although there is room for constructing deductive argument (again to be explained below) proof always needs to be by inductive means, as will be described. As you will have noted by now, argument requires careful attention to detail, planning and understanding that there is a close relationship between: • cases of authority; • language usage; • logic and reasoning; • planning; • imagination; and above all • excellent skills in critical thinking. The phrases ‘critical thinking’, ‘critical reasoning’, ‘critical reflection’ come up often so it is important to be clear about what these mean. 7.4 CRITICAL THINKING Central to the task of study is the cultivation of excellent critical thinking. Every day, all the time, information is received, processed, evaluated, ignored or acted upon by the human brain. This information is received via all the senses, hearing, seeing, touching, smelling. It is processed in micro seconds, and often without the person’s conscious awareness of the process of: • receipt of information; • evaluation of information; • action based on evaluation (do nothing/do something/store information for later use). In our everyday life, if we refuse the information, or do not receive it, or fail to evaluate and act on it in some way, even if it is just to decide to ignore it, we would
DOI link for The common law model rests on assumptions that underlie both theory and practice and this will become clear as legal study is undertaken. It is said that in fact it rests on notions of the ideal type of rationalist tradition (Twining and Miers (1999)) This model involves the pursuit of ‘truth’ through rational means. Can you make accurate present judgements based on reasoning in cases occurring in the past on similar facts? This is certainly what the doctrine of precedent demands. The English legal system has developed principles designed to draw out that past reasoning and use it in the present and to obtain consistent decision making. Such a pursuit has as a high, but not overriding priority, the securing of justice under law. The model of adjudication is instrumentalist in that the pursuit of truth through reason is only a means to achieving a particular type of justice: the implementation of substantive law. • The mode of decision making is rational not irrational, and because it is highly aspirational its practice is often critiqued. • The mode of reasoning is inductive (to be explained below). Although there is room for constructing deductive argument (again to be explained below) proof always needs to be by inductive means, as will be described. As you will have noted by now, argument requires careful attention to detail, planning and understanding that there is a close relationship between: • cases of authority; • language usage; • logic and reasoning; • planning; • imagination; and above all • excellent skills in critical thinking. The phrases ‘critical thinking’, ‘critical reasoning’, ‘critical reflection’ come up often so it is important to be clear about what these mean. 7.4 CRITICAL THINKING Central to the task of study is the cultivation of excellent critical thinking. Every day, all the time, information is received, processed, evaluated, ignored or acted upon by the human brain. This information is received via all the senses, hearing, seeing, touching, smelling. It is processed in micro seconds, and often without the person’s conscious awareness of the process of: • receipt of information; • evaluation of information; • action based on evaluation (do nothing/do something/store information for later use). In our everyday life, if we refuse the information, or do not receive it, or fail to evaluate and act on it in some way, even if it is just to decide to ignore it, we would
The common law model rests on assumptions that underlie both theory and practice and this will become clear as legal study is undertaken. It is said that in fact it rests on notions of the ideal type of rationalist tradition (Twining and Miers (1999)) This model involves the pursuit of ‘truth’ through rational means. Can you make accurate present judgements based on reasoning in cases occurring in the past on similar facts? This is certainly what the doctrine of precedent demands. The English legal system has developed principles designed to draw out that past reasoning and use it in the present and to obtain consistent decision making. Such a pursuit has as a high, but not overriding priority, the securing of justice under law. The model of adjudication is instrumentalist in that the pursuit of truth through reason is only a means to achieving a particular type of justice: the implementation of substantive law. • The mode of decision making is rational not irrational, and because it is highly aspirational its practice is often critiqued. • The mode of reasoning is inductive (to be explained below). Although there is room for constructing deductive argument (again to be explained below) proof always needs to be by inductive means, as will be described. As you will have noted by now, argument requires careful attention to detail, planning and understanding that there is a close relationship between: • cases of authority; • language usage; • logic and reasoning; • planning; • imagination; and above all • excellent skills in critical thinking. The phrases ‘critical thinking’, ‘critical reasoning’, ‘critical reflection’ come up often so it is important to be clear about what these mean. 7.4 CRITICAL THINKING Central to the task of study is the cultivation of excellent critical thinking. Every day, all the time, information is received, processed, evaluated, ignored or acted upon by the human brain. This information is received via all the senses, hearing, seeing, touching, smelling. It is processed in micro seconds, and often without the person’s conscious awareness of the process of: • receipt of information; • evaluation of information; • action based on evaluation (do nothing/do something/store information for later use). In our everyday life, if we refuse the information, or do not receive it, or fail to evaluate and act on it in some way, even if it is just to decide to ignore it, we would
ABSTRACT
This model involves the pursuit of ‘truth’ through rational means. Can you make accurate present judgements based on reasoning in cases occurring in the past on similar facts? This is certainly what the doctrine of precedent demands. The English legal system has developed principles designed to draw out that past reasoning and use it in the present and to obtain consistent decision making. Such a pursuit has as a high, but not overriding priority, the securing of justice under law. The model of adjudication is instrumentalist in that the pursuit of truth through reason is only a means to achieving a particular type of justice: the implementation of substantive law. • The mode of decision making is rational not irrational, and because it is highly
aspirational its practice is often critiqued. • The mode of reasoning is inductive (to be explained below). Although there is
room for constructing deductive argument (again to be explained below) proof always needs to be by inductive means, as will be described.
