Critical Analysis ofLegal Judgments

Students studying legal philosophy are sometimes asked to analyse or criticise a case or legal decision. This is different to being asked to 'describe the law': it requires a close reading of the judgment, including how the judgment was reached and the form it takes. The following suggests some lines of enquiry that can be followed when analysing a judgment. Presuming that a judgment has been identified:

What element of the judgment do you want to analyse? Knowledge

Language

Reasoning

Does it use value language, distinctive language, or distinctive terminology?

Does it use induction, deduction, or analogy?

Does it contain facts about states of affairs, states of mind, or general knowledge?

Value language can be part of legal rules or can feature more generally within legal decisions and judgments. Why has it arisen in this context? Is it the application of a rule, a moral or legal principle, or is it rhetorical? (See Chapter 3)

The distinctive styles of legal writing reflect the precision needed in making legal judgments, but are also an expression of law's authority. Does this case 'dress up' a simple idea in formal language? Why? (See Chapter 4)

Legal terminology reflects the need for precision but also the layers of history making-up in legal practices. Why have specialist terms been used here and why has this specialist term developed? (See Chapter 6)

How have the facts about events and actions been established and are there any uncertainties? By what standard of proof have the facts been established? (See Chapter 1)

How have states of mind been introduced into the decision? Are these inferences from evidence, inferences from past actions, or generalisations about what 'reasonable people' would think? (See Chapter 2)

Has anything been introduced or used in the decision that is considered general knowledge? Are these factual assertions about things, about causes, or about social norms? Are these always defensible? (See Chapter 6)

Is there an inductive generalisation from observed instances to all instances? E.g. 'this kind of offender will always commit further offences'? Is this a legitimate generalisation? (See Chapter 5)

Is the decision a logical conclusion deduced from a general rule? In combining rules with a particular set of facts is the flow of argument clear? Does the legal judgment contain more than the rules and the facts indicate? (See Chapter 4)

Does the decision draw upon analogous cases with analogous circumstances? On what grounds(is this analogy legitimate? Are other analogies possible? (See Chapter 4)