Michael Schuetz has posted Legal Rationality Revisited: The Logic of Inquiry and the Craft of Judgment on SSRN. Here is the abstract:
Legal theory often obscures the uncertain process of judicial choice behind a logic of exposition, a formal style that presents conclusions as the inevitable results of a closed deductive system. Building on the defense of practical wisdom established in preceding work, this Article identifies a more fundamental logic of inquiry where legal principles function as working hypotheses rather than static truths. The central anchor of this inquiry is C.S. Peirce’s Pragmatic Maxim, which is used as the primary analytical framework to ground legal meaning not in abstract definitions, but in the conceivable practical bearings of a rule as it encounters the natural trends of social life.
To illuminate the operation of the legal craft, the Article integrates the cognitive science of hemisphere lateralization and relevance realization with the lived evolution of common law and statutory doctrines. It reframes the expert legal hunch as the initial element of phronesis (practical wisdom) – a disciplined capacity that mediates between formal doctrine and the shared habits of a community. By situating this cognitive process within Alasdair MacIntyre’s framework of a practice, the Article reframes situation sense as a disciplined pursuit of the law’s internal goods. This process, illustrated through benchmarks such as Res Ipsa Loquitur and the doctrine of consideration, functions as a rigorous, probabilistic narrowing of possibilities.
Furthermore, the Article makes a strong case for increased jurisprudential candor. It suggests that by acknowledging the phronetic nature of judgment, the legal system can achieve greater institutional congruence, where the pragmatic consequences of a rule actively inform and update its formal definition. This human dimension of the craft resists mechanization, and ultimately establishes a definitive boundary for the automation of law. Because artificial intelligence lacks the shared, embodied experience of a human form of life, it remains trapped in a nominal clarity that cannot grasp the living truth of practical effects. The Article draws on the Uniform Commercial Code to exemplify the “High Style” of realism, which explicitly relies on human situation sense to maintain its relevance in the marketplace.
For further discussion of the role of phronesis in virtue jurisprudence, see Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging.
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Lawrence Solum