Legal reasoning as fact finding? A contribution to the analysis of criminal adjudication

This paper attempts to shed light on the dynamics of criminal adjudication. It starts by exploring some significant—and often ignored—similarities and dissimilarities between the practices and disciplines of, respectively, legal reasoning and fact finding. It then discusses the problem of defining the nature of these processes—legal reasoning, in particular—in terms of their being instances of practical or theoretical reasoning. Thus understood, the problem is shown to be distinct from two traditional questions of jurisprudence, namely whether law consists of facts and, if so, whether these facts are social or (also) moral. Two theses are proposed as solutions to the problem: (T1) 'in the majority of cases legal reasoning is theoretical', and (T2) 'when legal reasoning is practical it generally involves complex theoretical operations'. Finally, the paper shows how T1 and T2 can make sense of the phenomena presented at the outset.