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Is legal reasoning like medical reasoning?

  • Geoffrey Samuel (a1)

In this paper, stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. It will be argued that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.

Corresponding author
Geoffrey Samuel, Professor, Kent Law School, University of Kent, Canterbury, Kent, CT2 7NZ, UK. Email:
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Also Professor affilié, École de Droit, Sciences-Po, Paris. This paper is a much extended, and rather differently orientated, version of an essay first published in France in 2013: ‘Qu'est-ce que le raisonnement juridique?’ in J-Y Chérot et al (eds) Le droit entre autonomie et ouverture: mélanges en l'honneur de Jean-Louis Bergel (Brussels: Bruylant, 2013) p 449. The author would like to thank both Professor Maurice Adams and the various anonymous referees for their very helpful comments and criticisms.

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1. Masquelet Ac Le raisonnement médical (Paris: Presses Universitaires de France, 2006).

2. Ibid, p 3.

3. Ibid, pp 4–5.

4. Berthelot J-MAvant-propos’ in Berthelot J-M (ed) Épistémologie des sciences sociales (Paris: Presses Universitaires de France, 2001) p 12.

5. For a general survey, see Lloyd D and Freeman M Lloyd's Introduction to Jurisprudence (London: Sweet & Maxwell, 8th edn, 2008) pp 717833, 1531–1587. However, this survey focuses mainly on literature within the common law tradition.

6. See Stapleton JFactual causation, mesothelioma and statistical validity’ (2012) 128 Law Q Rev 221.

7. With regard to law, see Brundage Ja The Medieval Origins of the Legal Profession (Chicago: The University of Chicago Press, 2008).

8. The main analogy was between law and mathematics, or in particular law and geometry (mos geometricus): Gordley J The Jurists: A Critical History (Oxford: Oxford University Press, 2013) pp 165194. On this scientificité in France, see Jestaz P and Jamin C La doctrine (Paris: Dalloz, 2004) pp 141157.

9. Ibid, pp 265–301.

10. Lasser M Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford: Oxford University Press, 2004) pp 3038.

11. Jolowicz Hf Lectures on Jurisprudence (London: Athlone Press, 1963) p 314.

12. Susskind R Expert Systems in Law (Oxford: Oxford University Press, 1976) pp 7879.

13. Masquelet, above n 1, pp 119–123.

14. See generally Lecourt D (ed) Dictionnaire d'histoire et philosophie des sciences (Paris: Presses Universitaires de France, 4th edn, 2006).

15. Ariely D Predictably Irrational: The Hidden Forces that Shape Our Decisions (London: HarperCollins, 2008) p 244 (quoting Murray Gell-Mann).

16. One only needs to look at a work such as Mesure S and Savidan P (eds) Le dictionnaire des sciences humaines (Paris: Presses Universitaires de France, 2006) to appreciate this point.

17. For an excellent recent overview, see Offenstadt N L'historiographie (Paris: Presses Universitaires de France, 2011).

18. See the survey in Lloyd and Freeman, above n 5, pp 15311587. And see also Twining W and Miers D How to Do Things with Rules (Cambridge, UK: Cambridge University Press, 5th edn, 2010).

19. Bergel J-L Théorie générale du droit (Paris: Dalloz, 5th edn, 2012) p 300. Professor Bergel actually says that ‘[le] raisonnement juridique consiste dans la démarche intellectuelle susceptible de conduire à la solution des problèmes juridiques, grâce à un certain nombre de moyens rationnels’. Thus to characterise legal reasoning, ‘c'est déterminer les méthodes permettant de trouver les solutions recherchées’.

20. Cf Jonsen Ar and Toulmin S The Abuse of Casuistry: A History of Moral Reasoning (Berkeley, CA: University of California Press, 1988) pp 3642.

21. Karl Popper's falsification test was formulated by him as a means of determining whether or not an assertion is a scientific statement (as opposed to a non-scientific statement such as ‘God loves man’). A scientific statement is one that is capable of being falsified by empirical experience: Popper K The Logic of Scientific Discovery (London: Hutchinson, 1959; reprint London: Routledge, 2002) p 18. Thus the statement ‘all swans are white’ (Popper's own example) is a scientific one because it can be falsified by the appearance of a black swan.

22. Although, of course, diagnosis can often be more complicated: see Jonsen and Toulmin, above n 20, p 40.

23. Dig.

24. Who might otherwise be strictly liable for damage done by his animal: D.9.1.1pr.

25. For example, with respect to ‘pattern recognition’: Jonsen and Toulmin, above n 20, p 40.

26. But cf D.9.1.1pr.

27. Dig

28. Accordingly, one area in which medical and legal reasoning does overlap is where medical science is unable to attribute an exact causal relationship between a disease and the precise element that has caused it. This is a problem with mesoltheliomia, the general cause of which is exposure to asbestos but (where a victim has been subject to different exposures from, say, different employers) the specific cause of which is as yet impossible to pinpoint. Was it the exposure during employment A, B or C? In law, a victim will have an action only if he or she can prove factual causation and so a difficulty arises when there is more than one negligent exposure. Does this mean that because medical science cannot pinpoint which exposure was the cause of the mesothelioma, the victim loses the case despite all the employers being at fault? Basically, the law has got round this problem by presuming causation on the basis of risk: see Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229. And see Stapleton, above n 6.

29. Although, of course, psychological factors in every patient can be of importance; conclusions in medical reasoning can thus be ‘circumstantial’: Jonsen and Toulmin, above n 20, p 42.

30. Granger G-G La science et les sciences (Paris: Presses Universitaires de France, 2nd edn, 1995) p 70. Emphasis in the original.

31. Jonsen and Toulmin, above n 20, p 42.

32. Sinaceur HModèle’ in Lecourt, above n 14, p 756.

33. Jonsen and Toulmin, above n 20, pp 41–46; Masquelet, above n 1, pp 91–93.

34. Masquelet, above n 1, p 92.

35. Jonsen and Toulmin, above n 20, p 42.

36. However, note the following: ‘Scientific thought is, starting out from the observation of reality, to construct a model. Then, within this model, to make deductions, calculations, developments, sequences of theorems, to get results and then to forecast I give you another example: in the Paris constituency a candidate in the legislative elections suspected fraud in a number of voting offices. He thought that in these offices there was this risk because he did not have confidence in those running the offices. He had taken some very precise opinion polls, he had studied previous elections and, armed with these figures and results, hundred upon hundred, he went to the administrative court and said that chance could not have produced any of this The court thought he was right. On simple probability, it estimated that the chance of fraud was stronger than the presumption that everything had gone according to the rules’: Boursin J-LLe hazard et la vie sociale’ in Noël É (ed) Le hasard aujourd'hui (Paris: Éditions du Seuil, 1991) p 25, esp pp 37, 39.

37. Mathieu-Izorche M-L Le raisonnement juridique (Paris: Presses Universitaires de France, 2001) pp 5963. See also Stein P Legal Institutions: The Development of Dispute Settlement (London: Butterworths, 1984) pp 125129 ; Samuel GClassification of obligations and the impact of constructivist epistemologies’ (1997) 17 Legal Stud 448.

38. Mathieu-Izorche , above n 37, pp 5963. And see Kelley D The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1990); Samuel G Epistemology and Method in Law (Aldershot: Ashgate, 2003).

39. The notion of an ‘institution’ is used here in a much more restricted sense than normal; it draws most of its meaning from the Roman institutiones (introductory textbooks) which grouped law around persona, res and actio (see Stein, above n 37, pp 125–129), yet it also draws on the French institutional theorists who, broadly speaking, defined an institution as a permanent hub around which legal rules form: see generally Bergel, above n 19, pp 209–223.

40. Or at least detentio (custody). Today, the drivers would, at least in English law, probably be regarded as having possession.

41. Sinaceur, above n 32, p 759.

42. Ibid.

43. Masquelet, above n 1, p 17.

44. Ibid, pp 17–18.

45. Jonsen and Toulmin indicate that such a clear distinction is not typical of medical diagnostic reasoning: Jonsen and Toulmin, above n 20, p 44.

46. Baker J The Oxford History of the Laws of England: Volume VI 1483–1558 (Oxford: Oxford University Press, 2003) p 49.

47. Milsom Sfc Historical Foundations of the Common Law (London: Butterworths, 2nd edn, 1981) p 83.

48. Baker J An Introduction to English Legal History (London: Butterworths, 4th edn, 2002) p 82.

49. See eg Duxbury N Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004).

50. Jonsen and Toulmin, above n 20, p 37.

51. Masquelet, above n 1, p 4. Jonsen and Toulmin take the same view: Jonsen and Toulmin, above n 20, pp 36–46.

52. Masquelet, above n 1, pp 4–5.

53. Ibid, p 5.

54. Granger, above n 30, p 70.

55. Ibid, pp 78–79.

56.The causal scheme means that B depends on A according to a relation such that, in the absolute, that is to say in a situation where A would be the unique cause of B, you cannot have B without A and that in any variation of A there corresponds a variation in B (reciprocal implication). It follows that A and B are distinct either in reality (different objects or realities) or analytically (different levels of a global reality) and that the element A is conceived as being necessarily prior, chronologically or logically, to the element B’: Berthelot J-M L'intelligence du social (Paris: Presses Universitaires de France, 1990) pp 6263.

57. Rochfeld J Les grandes notions du droit privé (Paris: Presses Universitaires de France, 2011) p 9.

58. Although, of course, there might be a psychological aspect to an illness.

59. D.9.2.28.

60. D.

61. Lawson Fh Negligence in the Civil Law (Oxford: Oxford University Press, 1950) p 38.

62. Masquelet, above n 1, p 29

63. Ibid, p 41. Jonsen and Toulmin also stress the importance of analogical reasoning in diagnosis: Jonsen and Toulmin, above n 20, p 40.

64. Ibid, pp 91–92.

65. Ibid, p 92. And see Jonsen and Toulmin, above n 20, p 40.

66. See eg Blanché R Le raisonnement (Paris: Presses Universitaires de France, 1973) p 177.

67. Dig 9.2.31.

68. Monro Ch (ed and trans) Digest IX.2 Lex Aquilia (Cambridge, UK: Cambridge University Press, 1928) pp 5455 n 31.

69. See in particular D.50.17. And see Jonsen and Toulmin, above n 20, p 85

70. Dig

71. Masquelet, above n 1, p 80

72. Ibid, p 81

73. Ibid, p 78

74. Piaget J L'épistémologie génétique (Paris: Presses Universitaires de France, 4th edn, 1988) p 103.

75. Jonsen and Toulmin, above n 20, p 34

76. But see Gordley, above n 8.

77. Dubouchet P Sémiotique juridique: introduction à une science du droit (Paris: Presses Universitaires de France, 1990) pp 3770.

78. See Jonsen and Toulmin, above n 20, pp 34–35.

79. For an overview of Perelman's contribution to legal reasoning, now see Goltzberg S Chaïm Perelman: l'argumentation juridique (Paris: Michalon, 2013).

80. Bergel, above n 19, p 307

81. This tension between the structural and the hermeneutical schemes of intelligibility was particularly acute in German Pandectist thinking. The German Romanists emphasised the structural over the hermeneutical in insisting on the importance of conceptual system: Jouanjan O Une histoire de la pensée juridique en Allemagne (1800–1918) (Paris: Presses Universitaires de France, 2005) pp 222-230. Law was not a system of rules but a system of concepts (ibid, p 225), with the result that hermeneutical reasoning based on textual rules was inferior to logical calculation from abstract legal concepts (ibid, p 226ff). At the end of the 19th century this emphasis was to shift from concepts towards facts, giving rise to the idea of ‘the normative force of fact’ (ibid, pp 315–320). This movement permitted an orientation towards a functional scheme of intelligibility which, when combined with methodological individualism (an actional scheme of intelligibility) (ibid, p 306ff), allowed one to link a legal concept such as a ‘right’ (droit subjectif) to a social ‘interest’. Rights are no longer deduced from a system of concepts but gain their normative force from the idea of a protected interest. Notions such as an interest (and similar notions such as ‘legitimate expectation’) thus become fundamental in legal reasoning because they permit the reasoner to ‘manipulate’ the facts so as to create a ‘right’ in turn resulting in a legal decision favourable to the interest/right holder. A good example of this kind of reasoning is to be found in the judgment of Bingham LJ in Blackpool & Fylde Aero Club Ltd v Blackpool BC [1990] 1 WLR 1195: see Samuel G A Short Introduction to the Common Law (Cheltenham: Edward Elgar, 2013) pp 8488.

82. Makkreel RExpliquer et comprendre’ in Mesure and Savidan, above n 16, p 441. And see in particular Ricoeur PLe problème de la liberté de l'interprète en herméneutique générale et en herméneutique juridique’ in Amselek P (ed) Interprétation en droit (Brussels: Bruylant, 1995) p 177.

83. Paul Ricoeur was unhappy with this dichotomy between explanation and understanding because it fails to take account of the dialectical nature of this dichotomy within law, which finds its expression through the notion of argumentation: Ricoeur, above n 82, pp 179–180.

84. Symptoms are a sign (signans) signifying an illness (signatum): see generally Agamben G Signatura rerum: sur la méthode (Paris: Vrin, 2008).

85. Lacoste J-YHerméneutique’ in Lacoste J-Y (ed) Dictionnaire critique de théologie (Paris: Presses Universitaires de France, 2nd edn, 2007) p 633.

86. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, at para 36.

87. Bergel, above n 19, pp 310–311.

88. Ibid, at 311.

89. See Ricoeur, above n 82.

90. Dialectical reasoning has its roots in ancient Greek philosophy and is founded on the idea of pairs of opposites whose contradiction leads to a superior unity of harmony: Riffard P Les méthodes des grands philosophes (Nice: les Editions Ovadia, 2013) pp 4647, 107–108. As a method, it was the basis of late medieval reasoning in philosophy and in law: see eg Ullmann W Law and Politics in the Middle Ages (London: Sources of History, 1975) p 87.

91. Professor Bergel's chapter on legal reasoning is influenced by the work of Chaïm Perelman: see in particular Perelman C Logique juridique: nouvelle rhétorique (Paris: Dalloz, 2nd edn, 1979). And see also Goltzberg, above n 79.

92. ‘Considerations such as these, together with practical experience, suggest caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of “unjust enrichment”. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around’: Gummow J in Roxborough v Rothmans of Pall Mall (Australia) Ltd (2001) 208 CLR 516 at para 72.

93. Lobban M The Common Law and English Jurisprudence 1760–1850 (Oxford: Oxford University Press, 1991) p 51.

94. Ibid, p 52

95. Ibid, pp 54–55.

96. Cairns JBlackstone, an English institutist: legal literature and the rise of the nation state’ (1984) 4 Oxford J Legal Stud 318.

97. Lobban, above n 93, pp 56–61.

98. Ibid, pp 61–67.

99. Ibid, p 67

100. Ibid, p 86

101. Ibid, p 90

102. Ibid. Professor Lobban illustrates this point with a range of examples: see pp 9098. See also Waddams S Principle and Policy in Contract Law: Competing or Complementary Concepts? (Cambridge, UK: Cambridge University Press, 2011).

103. See eg Kennedy D A Critique of Adjudication (Fin de Siècle) (Cambridge, MA: Harvard University Press, 1997).

104. See Lasser, above n 10.

105. Waddams, above n 102.

106. Broadly speaking, a functional analysis is where a phenomenon is defined by the function that it fulfils normally within a system: Berthelot J-M Les vertus de l'incertitude (Paris: Presses Universitaires de France, 1996) p 79. However, one should not underestimate the difficulties of defining both a functional method and functionalism: see eg Michaels RThe functional method of comparative law’ in Reimann M and Zimmermann R (eds) The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) p 339 ; Giraud C Histoire de la sociologie (Paris: Presses Universitaires de France, 2nd edn, 2000) pp 8794.

107. Guillo DFonctionnalisme’ in Mesure and Savidan, above n 16, p 466, esp p 468.

108. ‘Just such policy considerations as these (the conflicts of interest involved and the desirability of limiting litigation against those concerned to act in the interests of the wider community) informed the judgments of the House, not only in Hill and Brooks but also (of the majority) in D v East Berkshire Community Health NHS Trust [2005] 2 AC 373 ’: Lord Brown in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, at para 134.

109. See eg Lord Denning MR's judgment in Spartan Steel & Alloys Ltd v Martin & Co [1973] 1 QB 27.

110. For some examples, see eg Samuel G Tort: Cases and Materials (London: Sweet & Maxwell, 2nd edn, 2008) pp 3941, 67–71. Neil MacCormick described the word ‘policy’ as ‘hideously inexact’ but one intended ‘to secure states of affairs conceived to be desirable’: Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978) p 263.

111. Cf Ricoeur, above n 82, pp 186–187.

112. Ogus AThe economic approach: competition between legal systems’ in Örücü E and Nelken D (eds) Comparative Law: A Handbook (Oxford: Hart Publishing, 2007).

113. [2009] 1 AC 225.

114. [2009] 1 AC 225, at para 108.

115. Mirvahedy v Henley [2003] 2 AC 491.

116. Lord Hobhouse [2003] 2 AC 491, at para 69.

117. This perhaps illustrates Ricoeur's point that a crude dichotomy between explanation and understanding in law is too simplistic: Ricoeur, above n 82, pp 179–180. Structuralism can act as a bridge between the two.

118. Lord Scott, dissenting, at para 130.

119. See Berthelot J-M La construction de la sociology (Paris: Presses Universitaires de France, 6th edn, 2005) pp 8188 ; Giraud, above n 106, pp 8794.

120. See Grondin J L'hermémeutique (Paris: Presses Universitaires de France, 2006) p 48ff.

121. Woodland v Swimming Teachers Association [2013] 3 WLR 1227, at para 29.

122. This point is developed further in Samuel GCan legal reasoning be demystified?’ (2009) 29 Legal Stud 181.

123. Berthelot, above n 106, p 79

124. See eg Grondin, above n 120, pp 22–27.

125. Lacoste, above n 85, p 633

126. Makkreel, above n 82.

127. Masquelet, above n 1, pp 116–117.

128. Ibid, at 118.

129. Ashworth A Principles of Criminal Law (Oxford: Oxford University Press, 6th edn, 2009) pp 154159.

130. See eg Thabo Meli v R [1954] 1 WLR 228.

131. Makkreel, above n 82, p 441

132. Ivainer T L'interprétation des faits en droit (Paris: Librairie générale de droit et de jurisprudence, 1988) p 86. See also Ricoeur, above n 82, pp 186187.

133. Ivainer, above n 132, p 26

134. ranger, above n 30, p 48 (emphasis in original).

135. Ibid, at 49 (emphasis in original).

136. Llewellyn K The Bramble Bush (Dobbs Ferry, NY: Oceana, 1951) p 48.

137. Ibid (emphasis in the original).

138. A point, as has been seen, appreciated by Ricoeur: Ricoeur, above n 82, pp 186–187.

139. See eg Samuel, above n 122, in which examples are given of facts being ‘manipulated’ in such a way to prevent the imposition of liability: Miller v Jackson [1977] QB 966 and Birmingham CC v Oakley [2001] 1 AC 617.

140. See eg Birmingham CC v Oakley [2001] 1 AC 617.

141. See eg Miller v Jackson [1977] QB 966.

142. [1947] AC 156.

143. (1866) LR 1 Ex 265 (Ex); (1868) LR 3 HL 330 (HL).

144. See eg Tomlinson v Congleton BC [2004] 1 AC 46.

145. [1996] 1 AC 344.

146. Whether any non-military judge would ever manipulate the facts in this way is another question. It is almost unimaginable that they would do so in any country that takes human rights seriously.

147. Cf Ricoeur, above n 82, who saw this process of application of a legal text as a matter of interpretation of both the text and the facts (p 187). However, Paul Amselek disputes this view, arguing that it creates a confusion between categorisation of fact (qualification) and interpretation: Amselek PL'interprétation à tort et à travers’ in Amselek, above n 82, pp 11, 24–25. It can, of course, be said that medics (and other scientists) ‘interpret’ facts but, as Amselek says, the mental processes that operate between intellectus and res cannot all be qualified as interpretation: ‘strictly speaking the labelling of facts is no longer interpretation’ (p 24); it is an exercise in receipt and reconstitution (p 25).

148. Mathieu-Izorche, above n 37, pp 59, 91.

149. Masquelet, above n 1, p 117

150. Ibid, at 6.

151. White v Jones [1995] 2 AC 207.

152. See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, at 495.

153. Woodland v Swimming Teachers Association [2013] 3 WLR 1227, at para 30.

154. Laws LJ in Woodland v Swimming Teachers Association [2013] 3 WLR 853, at para 26.

155. This is the reason why in this present paper the important writings of Ronald Dworkin are not discussed. Dworkin famously compares legal reasoning not with medical reasoning but with a literary exercise, namely the writing of a chain novel: Dworkin R Law's Empire (London: Fontana, 1986) p 228ff. This is a very different view of such reasoning where the emphasis is, seemingly, almost uniquely on the hermeneutical scheme of intelligibility (law as interpretation). Moreover, it is offered less as an account of how judges actually reason and (in the context of Dworkin's whole interpretation thesis) more of a metaphor about how they ought to reason. Ricoeur was critical of this chain novel analogy because it left out of account what he considered to be the interpretation of facts: see Ricoeur, above n 82, pp 181–183. One could of course say, following Dworkin, that medical reasoning is about the explanation of fact while legal reasoning is about the understanding of texts, but this present paper, in undertaking a comparison between medical and legal reasoning, is asserting that facts, and how they are treated by lawyers, are an essential element in legal reasoning. Ricoeur also rejected the strict dichotomy between explanation and comprehension: see generally Grondin, above n 120, pp 75–92.

156. Masquelet, above n 1, p 121

157. Ibid, at 122.

158. Ibid.

159. See eg D.5.1.76; D.41.3.30.

160. See eg Evershed MR in Re Dick [1953] Ch 343, at 356

161. See the famous Art 4 of the French Code civil.

162. Although this is not to assert that interpretative concepts are absent from medicine. As Neil MacCormick pointed out, a notion such as ‘health’ is an interpretative concept that requires understanding as well as explanation: MacCormick N Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007) pp 300301.

163. Waddams S Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge, UK: Cambridge University Press, 2003); Waddams, above n 102.

164. See in particular MacCormick, Legal Reasoning, above n 110.

165. Ricoeur (above n 82) in many ways raised the same issue: the location of legal reasoning exclusively in the domain of interpretation of a rule or in application of it is inadequate; there is a third aspect that might be termed the location of the ‘fit’ (accommodatio factorum).

166. Masquelet, above n 1, p 119

167. Ibid, pp 94–118.

168. Ibid, p 94

169. Ibid.

170. For instance, to give a simple example, is Donoghue v Stevenson [1932] AC 562 a case about a defective bottle of ginger beer, a defective food item or a defective product? All of these descriptions are ‘correct’.

171. Quoted by W Keegan The Observer 3 November 2013 at 48.

* Also Professor affilié, École de Droit, Sciences-Po, Paris. This paper is a much extended, and rather differently orientated, version of an essay first published in France in 2013: ‘Qu'est-ce que le raisonnement juridique?’ in J-Y Chérot et al (eds) Le droit entre autonomie et ouverture: mélanges en l'honneur de Jean-Louis Bergel (Brussels: Bruylant, 2013) p 449. The author would like to thank both Professor Maurice Adams and the various anonymous referees for their very helpful comments and criticisms.

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