This dissertation is an analysis of 'discovery' in judicial decision-making. I discuss four types of 'discovery': (1) legal justification as 'discovery', (2) insights as 'discovery', (3) general problem-solving strategies as 'discovery', and (4) 'discovery' as a method of expression and persuasion. Chapter One reviews the conventional jurisprudential literature on 'discovery'. It begins with the American legal realists' explanation of 'hunching' in judicial decision-making and then traces how 'discovery' and justification have come to be considered distinct processes. The realists' and legal positivists' conflicting opinions concerning the nature of 'discovery'' are presented and I conclude that the only way to settle the conflict is to study 'discovery' in detail. Chapter Two begins with a critical evaluation of the analogy between science and law that Neil MacCormick draws between scientific testing and legal justification. The chapter ends by identifying elements in legal justification that play a role in discovery. In particular, the legal syllogism and the requirements of coherence and consistency play roles in the process of discovery in judicial decision-making. In an effort to examine 'discovery' in more detail than that found in conventional jurisprudence literature, Chapter three introduces the work of Bernard Lonergan on insight in other fields. I present his approach to studying human knowing and his account of insight in theoretical and practical problem-solving. Then, in Chapters Four and Five, I use Lonergan's method and his analysis of insight to study 'discovery' in theoretical and practical problem-solving in judicial decision-making. I conclude that not only does insight play a key role in interpreting situations and discovering solutions to legal problems, but insight plays a crucial role in testing interpretations and evaluating courses of action.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:640476 |
| Date | January 1992 |
| Creators | Anderson, Bruce |
| Publisher | University of Edinburgh |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://hdl.handle.net/1842/19660 |
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