Book contents
- Frontmatter
- Contents
- Preface
- INTRODUCTION: INNOVATION IN LEGAL THINKING
- PART 1 PRINCIPLES
- 1 FROM FORMAL LOGIC TO NORMATIVE REASONING
- 2 SOCIAL WELFARE VERSUS MORAL PHILOSOPHY
- 3 FROM POLITICAL PHILOSOPHY TO GAME THEORY
- 4 THE IMPORTANCE OF DISTRIBUTION OF WEALTH
- 5 COASE AND LAW'S IRRELEVANCE
- 6 MORE FAILURES OF COASEAN IRRELEVANCE
- PART 2 METHODS
- APPENDIX A MEINHARD V. SALMON 249 N.Y. 458 (1928)
- APPENDIX B GLOSSARY
- APPENDIX C MATHEMATICA NOTEBOOKS
- Index
1 - FROM FORMAL LOGIC TO NORMATIVE REASONING
Published online by Cambridge University Press: 24 July 2009
- Frontmatter
- Contents
- Preface
- INTRODUCTION: INNOVATION IN LEGAL THINKING
- PART 1 PRINCIPLES
- 1 FROM FORMAL LOGIC TO NORMATIVE REASONING
- 2 SOCIAL WELFARE VERSUS MORAL PHILOSOPHY
- 3 FROM POLITICAL PHILOSOPHY TO GAME THEORY
- 4 THE IMPORTANCE OF DISTRIBUTION OF WEALTH
- 5 COASE AND LAW'S IRRELEVANCE
- 6 MORE FAILURES OF COASEAN IRRELEVANCE
- PART 2 METHODS
- APPENDIX A MEINHARD V. SALMON 249 N.Y. 458 (1928)
- APPENDIX B GLOSSARY
- APPENDIX C MATHEMATICA NOTEBOOKS
- Index
Summary
This book is about normative reasoning. If the science of logic could perform legal normative reasoning, then this book would be about the principles and methods of logic, and it might have contained a chapter akin to this one showing how economic analysis could help normative reasoning but in a way different than syllogistic logic. This chapter shows why logic cannot perform legal reasoning. The juxtaposition of logic and normative reasoning also clarifies what normative reasoning is.
To provide a consistent example illustrating each chapter's goal, every chapter has an introductory example based on the same legal opinion, Meinhard v. Salmon. The facts that are relevant here are simple. Salmon received a lucrative offer from Gerry, a business acquaintance. The offer could have expanded Salmon's business. Unbeknownst to Gerry, Salmon's business, which was the reason for their acquaintance, had a secret partner, Meinhard. If Gerry knew that Salmon operated in two capacities, as an individual and as a member of a partnership, then Gerry may have specified which of the two he selected as the recipient of his offer. Meinhard, the invisible partner, claimed the offer should be treated as made to the partnership. The litigation that Meinhard started eventually reached the highest court of the jurisdiction and the famous American judge, Benjamin Cardozo, and his colleague Andrews, who is almost equally famous for his vocal dissenting opinions. Previously established law did not answer the question directly. The judges could not mechanically apply formal logic.
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- Chapter
- Information
- Principles and Methods of Law and EconomicsEnhancing Normative Analysis, pp. 11 - 19Publisher: Cambridge University PressPrint publication year: 2005