On my first day of law school, a rather wry (and socially awkward) faculty member announced to us that we were going to learn to “think like a lawyer.” Over the course of my three-year education, I learned that “think like a lawyer” referred to legal reasoning and that legal reasoning was composed of the holy trinity of law studies: analysis, writing and citation.
So, is there such a thing as legal reasoning in global contexts? After all, what I was learning was steeped in the idea that legal reasoning involved identifying legal precedents, exploring legal standard, applying the standard to a set of new facts to ultimately arrive at an outcome. The outcome would ideally be consistent with outcomes to earlier, similar cases.
But in global contexts, the basic concepts from the common law systems are not employed. There is no stare decisis or binding precedent to govern how to analyze a set of facts. What, then, is legal reasoning in global settings?
We can get an idea of legal reasoning in supra national contexts when looking at decisions from regional-level tribunals. Courts like the European Union’s highest judicial body. The Court discussed how it conducts its reasoning in Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (Judgment of the Court of 6 October 1982):
18 To begin with, it must be borne in mind that Community legislation is
drafted in several languages and that the different language versions are all
equally authentic. An interpretation of a provision of Community law thus
involves a comparison of the different language versions.
19 It must also be borne in mind, even where the different language versions are
entirely in accord with one another, that Community law uses terminology
which is peculiar to it. Furthermore, it must be emphasized that legal
concepts do not necessarily have the same meaning in Community law and in
the law of the various Member States.
20 Finally, every provision of Community law must be placed in its context and
interpreted in the light of the provisions of Community law as a whole,
regard being had to the objectives thereof and to its state of evolution at the
date on which the provision in question is to be applied.
The Court acknowledges the role of language in legal reasoning. Words do not carry the same meaning across languages. So, in a regional setting where several languages are used to communicate the same treaties and legislation, words and their meanings must be considered in several languages. Secondly, legal reasoning differs at the “Community” level as compared to within the Member States. This is a concession that regional, European Union law is not the same as national law. My point exactly, legal reasoning in regional and global contexts is not equal to the classical national settings. Finally, and most importantly, the Court announces here that legal reasoning places emphasis on context in a holistic manner, looking at the objectives and changes in those objectives over time. In the European Union, the objectives are announced in the treaties and general principles of Union law, but theses are not static. Instead, the objectives have evolved and progressed over time.
Consider the very first treaty of 1951, the Treaty Establishing the European Coal and Steel Community, in which Article 2 declared the objectives of the community to be “economic expansion, the
development of employment and the improvement of the standard of living in the participating
countries through the institution, in harmony with the general economy of the member States, of a
common market.” Those words seem strangely market-oriented today, when we cast a glance at the Consolidated Treaty of European Union which boldly proclaims six goals:
1. The Union’s aim is to promote peace, its values and the well-being of its peoples.
2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.
It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.
It shall promote economic, social and territorial cohesion, and solidarity among Member States.
It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.
4. The Union shall establish an economic and monetary union whose currency is the euro.
5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.
The latest Treaty reflects modern-day principles like sustainable development and the protection of human rights. It references the UN Charter and references the fight against discrimination.
Legal reasoning in global contexts demands consideration for linguistic diversity, an acknowledgement that national, classic legal reasoning may not be appropriate in regional contexts and a recognition that the objectives and context of legal standards are highly relevant for understanding how to analyze them.
Learn more about the trinity of legal reasoning (analysis, writing and citation) in this e-textbook.preview e textbook