Chapter 4: The ‘unofficial portrait’
The models of reasoning that have been considered so far can be said to make up an ‘official portrait’ of legal reasoning. These models are not inaccurate or misleading as such (hopefully quite the opposite), but they reveal only part of what constitutes legal reasoning. They are largely formalist models. In addition to these models there is what might be called an ‘unofficial portrait’ (this unofficial portrait metaphor is again taken from Mitchel Lasser, (2004)). Part of this unofficial portrait can be described as ‘realist’ in its approach. That is to say it looks at the reality of legal reasoning – at what a sociologist might have to say about it. The major source of this school of thought was the American Realist movement, which was active in the first half of the 20th century, although its effects have continued up until the present day (‘we are all Realists now’ said William Twining). Is legal reasoning a matter of political bias? One should not be surprised that judicial decision making will reflect the social background, gender and political beliefs of the judiciary. Thus it must be of some concern that the great majority of England’s senior judges are white, male, public school and Oxbridge (The Guardian, 14 July 2015, 39). One can only respond by emphasising the importance of gender balance and more diversity in social background. This will not of course solve the question about social bias. Thus some cases do indeed force judges to show their political and social leanings.
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