In the ideological and legal style of thought, it is possible to make
normative inferences from statements of fact. Such inferences are made through
concepts in which descriptions and values are inextricably fused. In the legal
style, it is possible to move from statements of facts to normative conclusions
without invoking values along the way.
This analysis of legal style is useful in the scrutiny of certain survey data on
civil litigation before the federal district courts. In the scientific style of
thought, there is a sharp distinction between cognitive statements and
statements of values or norms, and hence, it is not possible to infer what ought
to be from looking at what is.
Therefore, this invokes the need to think and talk in modes in which there are
no unbridgeable gaps between cognitive and noncognitive statements and in which
links between these different types of statements are possible. This article
describes the formal characteristics of legal style, as it exists in
contemporary society, and makes it possible to move from statements of fact to
Many jurists and philosophers of law who differ among themselves in other
respects agree in defining law, or legal thinking, in terms of rules. Shklar
defines legalism as the ethical attitude that holds moral conduct to be a
matter of rule-following, and moral relationships to consist of duties and
rights determined by rules. Hart contends that the law is the union of
primary and secondary rules, while it does not define the whole of a legal
system, is at the center of a legal system
In one aspect our whole legal system represents a complex of rules designed to
rescue man from the blind play of chance and to put him safely on the road to
purposeful and creative activity.
However, there are few exceptions to rules of law and the emphasis seems unduly
one-sided. The law consists not only of rules but also of purely classificatory
categories such as ‘spouse’, ‘alien’, ‘contract’, ‘juvenile’, and hundreds of
These concepts are among the terms which the rules include but they are not
rules themselves and the meaning of such terms is formally independent of the
rules in which they are embedded. For example, ‘spouse’ or ‘marriage’ for
purpose of inheritance law may mean something quite different from ‘spouse’ for
purposes of tax law, and both may differ from ‘spouse’ for purposes of
These purely classificatory categories, as distinct from rules of law, seem
worthy of attention in their own right. In legal reasoning, they are often the
link between cognitive statements made in extralegal language and the
application of rules of law to specific cases or events. They make it possible
in the logic of the law to move from cognitive judgments to normative
implications without invoking values and helps in getting the perspectives of
To see the place of classificatory categories in legal thinking, consider their
place in a plaintiff’s suit against a defendant. The first ingredient in a suit
at law is ‘the facts’ of a case which means something happened, some events took
place which led to a dispute, which resulted in a suit. The second ingredient is
the legal categories under which those facts may be subsumed.
The third category is the rules of law in which the legal categories are
embedded. The fourth and the last ingredient is a conclusion by a court about
the disposition of the suit in question. In simplified form, the logical
structure of a plaintiff’s case against a defendant consists of a chain of
arguments that includes at least these four steps.
The Legal Style of Thought
Legally relevant facts are those which affect the classification of the events
in question under one or more legal concepts. Courts and litigating lawyers have
to find out what happened in a case. However, factual assertions in ordinary
English are only the first step in the chain of arguments.
The second step is the classification of the facts under legal categories. At
this point, lawyers and judges use a vocabulary that is unique to the law and
use conceptual terms such as offer, acceptance, consideration, negligence,
agents, etc. or they use words in ordinary language, such as wife, partner,
employee, that have become legal concepts and have their technical meanings in
the law. There are questions about the facts of the case.
But they are not purely descriptive questions. They have normative import. A
person who knows no law cannot accurately answer them and they cannot be
answered in ordinary English or in ways that have no consequence for the proper
legal outcome of the case. Now, to apply a rule to a specific case or to draw
normative conclusions from a cognitive statement, is not simply to say that a
rule applies or that the events are covered by a rule.
There intervenes, in the legal style of thought, the cognitive categories of the
law which defines the facts in legal terms and in terms that are included in the
language of the rules.
The one-sided emphasis on systems of law as systems of rules may lead students
of legal thinking to slur over this crucial, intervening step, and therefore to
miss a distinctive characteristic of legal, as distinguished from ideological
thinking. It is necessary to distinguish clearly between classifying particular
cases as instances of general terms and bringing particular situations under
The general terms
are not rules in themselves. They are cognitive categories
that, in turn, are embedded in rules, but whose meaning is independent of the
rules in which they are embedded. Only after the non-normative classification
has taken place, bringing particular situations under general rules come
about. This way of stating the matter makes it possible to identify more
precisely than would otherwise be possible the nature of the legal issues in the
vast majority of the suits in which there are any legal issues at all and this
formulation is fruitful for empirical research on the legal processes.
Lawyers and their practices as determinants of agreement or disagreement on
Personal injury cases and commercial suits differ not only in how they proceed
through the courts but also in the types of lawyers who typically handle them.
For example, lawyers in commercial cases are more likely than lawyers in
personal inquiry cases to be members of law firms. On the plaintiff’s side, at
least, lawyers in commercial cases are more likely to belong to relatively large
Membership in firms is associated with graduation from the higher-quality law
schools and both plaintiff’s and defendant’s lawyers in commercial cases tend to
have been in practice for a somewhat longer time than their counterparts in
personal injury suits. Further, lawyers in personal injury suits tend to be more
specialized in a variety of respects than lawyers in most types of commercial
suits, and lawyers in commercial suits tend to spend more time on a case than
lawyers in personal inquiry cases. The data on this point is in line with the
common knowledge of the legal profession that personal inquiry litigation tends
to be more perfunctory than commercial litigation.
These differences between the attorneys who handle different types of suits have
consequences for the frequency of disagreement over the law that governs a suit.
The characteristics of attorneys, or of their practices, which incline them to
agree with their adversary’s views of the law are more frequent among lawyers in
personal injury cases than they are among lawyers in commercial suits.
While looking only at cases of a single type, some lawyers are more able than
others to find or to create more points of disagreement. The logical structure
of a case and the place of legal precedent or of established doctrine in that
logical structure suggest some reasons for these differences among lawyers. The
lawyers subsume the facts of a case, as they construe them or chose to present
them under legal concepts.
They invoke rules of law to conclude that the facts, thus conceptualized, point
to a judgment for the people. However, in ordinary civil litigation, lawyers do
not usually slice the law so finely. If they have a prima facie case, if at
first glance the facts and the law seem to point their way, there is no reason
why they should. If the facts seem to fall under established concepts embodied
in received rules of law that would indicate a recovery for the plaintiff, they
can let it go at that.
Also, the less experienced lawyers are more likely to agree with the other
side’s view of the law. There is an experience that makes for stereotyped
responses to facts that seem to fit under the received legal concept and it
provides variety that breaks down stereotyped responses.
In the legal style of thought, facts move to their normative implications
without invoking any value concepts. The values which legislators, judges, and
litigants hold may contribute to the choice of the desired outcome. Values may
have an impact upon the legislative drafting or on the judicial formulation of
rules. Once the rules are given, it is possible to proceed from the statement of
facts to their normative implications without invoking values as distinct from
There is no reason to assume that scientific styles are somehow more legitimate
or valid for all purposes than other styles. The ideological form of inquiry may
subsume both science and the law. They subsume law because there can be neither
legal justification nor legal attacks upon the ultimate ‘rule of recognition’ in
a legal system. Some particular rules of law may be attacked or defended as
inconsistent or consistent with the supreme law of the land but the supreme law
itself has no legal foundation. It can be attacked or defended ideologically but
- Shklar 1964, p.1.
- Hart 1961, p.96.
- Fuller 1964, p.9.
Award Winning Article Is Written By: Ms.Shaily Garg
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