The hallmark of the lawyer is the ability and disposition to engage problems, make arguments, evaluate options, and render opinions using skillful reasoning. If lawyers are not both willing and able to use critical thinking in their work, their chances of success in professional practice or in legal education are small.
The LSRP is a valuable tool for hiring and the professional development of people engaged in the professional practice of Law and related paralegal professional roles. This powerful and practical measurement instrument has many workplace and educational applications. Our clients use the LSRP to provide a diagnostic assessment of candidates at entry to Law School and legal education programs, to identify weaknesses in individuals and groups, and to guide educational or staff development planning. Similarly, it serves well as a tool to assess the attainment of critical thinking as a learning outcome in all levels of Law education curricula.
The successful law professional or law student must draw judiciously on the knowledge base of their profession to analyze problems and to formulate, evaluate, and re-evaluate, a wide range of client-related decisions. An individual’s strength and weaknesses in these skills will impact their career success.
Part One of the LSRP measures the legal reasoning habits of mind and professional attributes regarded as essential for legal studies students and practicing professionals. Part Two of the LSRP is an objective measure of the core reasoning skills essential for purposeful reflective judgments in legal educational and professional practice settings. Together they provide comprehensive metrics on the strengths and weaknesses of legal reasoning.
The items on this instrument have been specially designed to appeal more directly to those who currently work in the legal profession, to those currently undertaking legal studies, and to those who aspire to become legal professionals. The LSRP is not a test of legal content knowledge. Reasoning skills questions are set in professional, educational, or common legal workplace situations, and no specialized legal knowledge is required. Items supply the necessary content for the applications of reasoning skills.
The LSRP can be administered in 90 minutes.
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Consistent with Insight Assessment's reputation for excellence in the development of nationally and internationally used reasoning and critical thinking assessment tools, the LSRP scales reveal a clear and distinct profile of the test-taker, predicting how willing and able they will be to think well in professional situations
Part 1 Legal Reasoning Habits of Mind: mental focus, intellectual integrity, mental rigor, foresight, cognitive maturity, professional confidence, communicative confidence, teamwork, peer expression, directness
Part 2 Legal Reasoning Skills: Overall reasoning skills, analysis, inference, evaluation, deduction, induction
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Although critical thinking can apply to nearly any discussion on any subject, some matters call for the especially self-conscious and especially focused application of the skills and methods found in this book. Those tend to be matters concerning essentially unclear or essentially disputable ideas. Of course a disagreement in biology or history can take years to settle too; and you can debate the best way to sole a shoe, scramble eggs, or tile a floor, with plenty of opportunities for vagueness and miscommunication. But those disputes, however heated or protracted they get, don't have the air of impossibility that surround conversations about moral, legal, or aesthetic issues.
Chapter 12 will therefore tackle the arguments that most often arise around such issues, covering essential vocabulary and the general positions proper to each domain. The section on moral reasoning defines prescriptive claims and identifies the role of facts in moral arguments. Several frameworks show the varieties of justification we can make for a given view, or the varieties of criticism we can use against it.
In our treatment of legal reasoning, we first set it apart from moral reasoning, then examine philosophical attempts to justify laws, and practical attempts to clarify and apply those same laws.
Discussions of art raise a different assortment of issues. For one thing, reasonable arguments aim at showing something about art as much as they aim at persuading. For another thing, aesthetic arguments take more diverse forms than moral and legal ones; those forms need to be differentiated from one another, so that we know when one argument is relevant to another.
Ideally you will think of this chapter not only as the conclusion to a course in critical thinking but also as the beginning of what comes next - what happens after the course is over. The specific examples treated in Chapter 12 call on the skills covered in Chapters 1-12. The individual skills are already in place; what's left is seeing which to use where.
- Moral decisions tend to be both important and difficult.
- Moral reasoning tries to arrive at moral value judgments and uses such judgments as premises of moral arguments.
- Inconsistency is a fault in moral reasoning regardless of which moral framework you use.
- Moral reasoning does not typically rest on such straightforward principles; rather, people use a framework or perspective to ground their arguments.
- Moral deliberation uses the insights of these various perspectives to clarify the ethical meaning of an act or situation.
- Legal reasoning addresses itself both to the foundation of law in general and to the interpretation of specific laws.
- We use aesthetic reasoning to defend or criticize judgments about art, usually with one of the following eight aesthetic principles.
- Aesthetic reasoning employs one or more of those eight principles in the attempt to produce reliable grounds for an aesthetic judgment.
- Aesthetic principles may not have the foundation that moral or legal principles do, but they contribute to aesthetic experience.
1. Moral decisions tend to be both important and difficult.
- Moral issues arise when we wonder what we should do, what someone else should do, or whether a situation is right or fair. Examples include:
- "Should I call for an ambulance about that man asleep on the sidewalk?"
- "Should my boss criticize us in front of each other?"
- "Is it appropriate to let adult bookstores operate in any commercial area they choose?"
- Moral reasoning includes arguments for the claim that a person should do something. It amounts to all reasoning of morally relevant matters.
- You may consider what possibilities for action are open to the person: "I can call for the ambulance, but the nearest phone takes me two blocks out of my way; or I can do nothing and hope that someone else calls."
- You may weigh the consequences of one action rather than another: "Criticizing us in front of each other makes us all more eager to work well; but it also spoils the mood of the workplace."
- You may describe a situation as right or wrong without reaching a decision about action: "Having adult bookstores on every corner is the sign of a sick society."
- You may reason your way to a decision: "I ought to call our neighbor and admit that I broke her window."
- Even people who believe that morality comes down to matters of pure opinion employ some form of such reasoning at one time or other.
2. Moral reasoning tries to arrive at moral value judgments and uses such judgments as premises of moral arguments.
- A moral value judgment is a subjective claim about values that assigns moral value to something.
- A claim may be either subjective or nonsubjective (see Chapter 1).
- The set of all subjective claims may be further divided into those that are value judgments and those that are not.
- Finally, the set of all value judgments may be subdivided yet again into those that assign moral value to something and those that do not.
- Although moral value judgments typically contain certain words, those words don't necessarily make a claim a moral judgment.
- The words include "good," "bad," "right," "wrong," "ought," "should."
- "The taxi should be here any minute": no moral value judgment there.
- A valid argument with a moral value judgment for its conclusion must contain at least one premise that is also a moral value judgment. No claim with a moral "ought" follows from claims with only "is."
- Although this principle is still controversial, it makes a good guide to forming moral arguments.
- The naturalistic fallacy consists in assuming that some nonsubjective statements imply value judgments.
- For example: "Your stereo is so loud that the downstairs neighbors are getting stomachaches. You ought to turn it down." This is an invalid argument.
- It becomes valid with the addition of a premise: "You shouldn't enjoy music at a volume that gives other people stomachaches."
- That additional premise must be a moral value judgment.
- This added premise may seem obvious. But that only explains why we normally don't say it. We still assume such a premise when making a good moral argument.
- Making such premises explicit often helps us evaluate moral arguments.
- "Your mother begged you to go to medical school. So you should go." Another invalid argument.
- It becomes valid when we add the premise "You should do whatever your mother begs you to do."
- Now you see the operative principle at work and may want to contest it.
3. Inconsistency is a fault in moral reasoning regardless of which moral framework you use.
- In one form of moral inconsistency, we treat one member of a group differently from another.
- For example: You distribute Halloween candy to most children who come to your door, but not to ones you take a sudden and unexplained dislike to.
- Moral inconsistency resembles logical inconsistency, in that we implicitly say "All X are Y" but "Some X are not Y."
- This form of moral inconsistency is clearly unfair.
- Equally unfair, though not exactly inconsistent, is a practice that treats different cases as if they were alike: paying equal wages to employees who arrive promptly every day and to those who take many unexcused days off.
- Another form of inconsistency consists in judging similar moral situations differently.
- You may disapprove of gambling but not of Bingo.
- This does not amount to unfairness, because no human being is necessarily being mistreated.
- Whether or not it is true inconsistency is often hard to settle in practice.
- The burden of proof lies with the person who appears to hold inconsistent views, to show that the situations are in fact different from each other.
4. Moral reasoning does not typically rest on such straightforward principles; rather, people use a framework or perspective to ground their arguments.
- Relativism holds that right and wrong depend on the beliefs of one's culture.
- People sometimes act as if relativism followed from the fact that different groups have different moral beliefs.
- But the mere fact of such disagreement might just as easily mean that one group is wrong.
- It is one thing to assert that other people or other nationalities think differently from us. No one could deny that claim.
- There is a huge leap from that claim however to the claim that the others are right when they think differently from us.
- Taken to its extreme, relativism becomes subjectivism, which makes right and wrong matters of individual opinion. (See Chapter 5 on the subjectivist fallacy.)
- Such views provide no guidance in settling moral issues. When two groups or persons disagree about right and wrong, we are left calling one and the same action both right and wrong.
- Utilitarianism evaluates all actions in terms of the happiness they produce.
- Utilitarianism (like other approaches to moral reasoning) considers only the consequences of actions.
- It narrows down those consequences to happiness, so its rule becomes: Maximize happiness and minimize unhappiness.
- You apply utilitarianism by trying to predict how much happiness each available option will lead to:
- How many people will be affected by each action you might take?
- How strongly will they be affected? (Two people's extreme delight normally outweighs the mild satisfaction of four people.)
- How certain are you of each prediction? (The more reliable a prediction, the more weight its outcome gets. A bird in the hand is worth two in the bush.)
- Have you counted each person as equally open to happiness? (Of course, the better you know people, the more sure you are of what will please them; and you are most of all sure about what will please you.)
- Other people's joy being a fine goal to pursue, utilitarianism has obvious appeal.
- But in many specific cases, it yields unsatisfying or false results.
- Utilitarianism pays no attention to intrinsic human rights, or to moral duties that make no difference to happiness.
- It also pays no attention to people's motives when evaluating their actions. Consequences make an action right or wrong, regardless of what the person meant to do.
- Kant's duty theory can be thought of as the denial of utilitarianism at each of its weak points. Duty theory bases morality on duty.
- Whereas utilitarianism neglects human rights and intrinsically binding duties and downplays the relevance of the person's motive, duty theory bases all rightness on duty and makes rights inviolable, and it calls motive the only relevant issue.
- Kant distinguishes between hypothetical and categorical imperatives, calling only the latter moral commands.
- An imperative is any claim about what we should do.
- Hypothetical imperatives tell what we ought to do in order to reach some desired end.
- "You should fulfill contractual obligations if you want to get more clients."
- Categorical imperatives have an unconditional quality, commanding certain behavior regardless of its consequences, only because it is right.
- For this reason, the only moral acts are those that follow a categorical imperative with no motive except for the rightness of the action.
- Specifically, you must act from the motive of moral duty.
- It even helps to have no other motives that would incline you to perform the action.
- You determine the content of your duty - just what it is you're supposed to do - by applying the test of universalization. Can you want the principle you are acting from to be a universal moral law?
- You consider lying in some situation. You ask yourself, "Can I want to make the acceptability of lying a universal principle?" No, because making a lie universally permissible means making reliable communication impossible—in which case lying (which presupposes a general adherence to the truth) stops bringing any benefits.
- In other words, a moral system that smiled on lies would be a system under which lies accomplish nothing: You'd be asking for a system in which your contemplated selfish lie wouldn't help you be selfish.
- Kant's analysis tries to show what is logically wrong with making yourself an exception to moral rules.
- The differences between duty theory and utilitarianism go beyond theory because the two accounts disagree on the rightness of certain specific actions.
- With no one around, you promise to scatter a dying friend's ashes in the ocean. Do you have to? Duty theory says yes; utilitarianism can't see why.
- Living in a police state, you find a revolutionary friend coming to hide in your house; then the police knock and ask if you know where she is. Do you lie? Utilitarianism says yes; duty theory won't let you.
- Kant gives another test for moral duties: Never treat other people merely as means to an end. (Don't use people.)
- Kant calls this test equivalent to the universalization test.
- Seeing people as ends in themselves supports a view of inalienable rights.
- Divine command theory traces the rightness of actions to God's commands.
- It is a type of general command duty theory, the view that moral duties are determined by an authority's orders.
- One problem with applying divine command theory is the problem of knowing just what God commands.
- Even if you accept a book (Bible, Koran) as God's word it often needs to be interpreted.
- Then we have to agree on who interprets the book.
- A more philosophical problem concerns cause and effect: Is what is right because God commands it, or does God command it because it is right?
- On the first alternative, God's commands look arbitrary: Drug dealing could be as splendid as volunteer work in hospitals, if God chose to will it.
- On the second alternative, moral principles have their value whether or not God commands them, as if they stood above God.
- Unlike all the preceding theories, virtue ethics focuses not on right and wrong acts but on good and bad character.
- The goal of life is not to do certain things, but to be a certain kind of person.
- Virtue ethics was the dominant mode of moral reasoning in ancient Greece.
- Good action follows from a balanced and moderate character that knows how to respond to any situation.
- Aristotle identifies and analyzes the virtues that make up a good life.
- Wisdom, self-control, and generosity appear on his list, along with many others.
- Each virtue is an appropriately moderate response standing somewhere between two extremes or vices: Generosity avoids both stinginess and wastefulness.
- Virtue is also a solid and reliable character trait, that is, a habit.
- Virtue theory gets its appeal from our common wish to be good people, and our frequent practice of approaching problems with the thought, "What would X do?"
- Its main failing is that such a question does not always help us think through an ethical predicament.
5. Moral deliberation uses the insights of these various perspectives to clarify the ethical meaning of an act or situation.
- People tend not to realize how much moral reasoning they use.
- Real-world deliberation incorporates elements of several perspectives: We think about making people happy, about universal principles, about what admirable people would do.
- The flaws in moral thinking also recall errors we have studied: logical slips, fallacies, unfounded causal claims.
- We make progress in moral reasoning by first identifying the perspective at work in an argument.
- If we see that our reasoning rests on divine command theory, for instance, we should ask whether we want that theory to settle all moral issues.
- When more than one moral theory delivers the same answer, keeping the theories distinct helps us clarify which details of a case are the morally relevant ones.
- Ultimately, each of these frameworks can be defended and attacked on abstract grounds, with theoretical arguments. Much of philosophical ethics is about discovering the best framework for moral reasoning.
6. Legal reasoning addresses itself both to the foundation of law in general and to the interpretation of specific laws.
- In some respects, but not all respects, legal reasoning resembles moral reasoning.
- Both involve value judgments, though the commands of law come with clear social enforcement behind them.
- The content of moral and legal claims overlaps but the two sets of claims are not identical.
- Most laws square with morality, outlawing practices we consider immoral: theft, assault, rape, fraud.
- But some immoral actions are not illegal, such as breaking a promise (other than a promise in a contract) or making fun of the way someone talks.
- And some laws concern nonmoral matters, such as laws about what businesses you can operate in a certain neighborhood.
- One question within legal studies, the more philosophical question, asks what the law should be, how it should be formed, and what principles it should rest on. There are four central lines of argument:
- Legal moralism is the position that the law should prohibit anything immoral.
- On these grounds prostitution should be illegal because it is morally wrong.
- The legal moralist could also argue against legal access to divorce.
- According to the harm principle, the law should only prohibit activities that harm others.
- Here prostitution would be outlawed only because those engaging in it could spread diseases to their unwary sexual partners.
- In most ways, the harm principle leads to the smallest number of laws, and the greatest limitation on their scope.
- Legal paternalism goes beyond the harm principle in also justifying laws that keep people from harming themselves.
- Because prostitution can bring harm to both prostitutes and their customers, paternalism would argue for its prohibition.
- Laws that limit the hours in which bars may open (e.g., on Sunday mornings) also get justified on the basis of paternalistic considerations.
- This is the principle that we stop people from behaving a certain way for their own good.
- Partly overlapping with legal moralism, the offense principle gives a society the right to ban activities that are generally found offensive.
- Again there are grounds for outlawing prostitution, since one could argue that most people find its practice offensive.
- One would argue against the right of members of the Nazi party to march in a public demonstration on these grounds.
- The other main question within legal studies, the more practical one, asks what the law says and how it should be interpreted.
- Such questions arise inevitably, partly because any law must be stated in broad terms, and partly because no human legislator can predict all the situations that might arise.
- For example, fraud is defined in terms of what a reasonable person would believe on the basis of someone's claim; we sometimes have to decide whether an actual person's belief is reasonable.
- Legal interpretation thus addresses itself to issues of vagueness (see Chapter 2).
- Arguments about the application of a law may be, like other arguments, deductive or inductive, valid or invalid in the former case and strong or weak in the latter.
- Many important legal arguments involve an appeal to precedent, in which one uses an established judicial decision to interpret a new case.
- Appeals to precedent are based on the desire for consistency, the similar treatment of similar situations.
- The claim that two cases are similar rests on an analogical argument (see Chapter 11), in which the settled case is the sample and the new case the target.
7. We use aesthetic reasoning to defend or criticize judgments about art, usually with one of the following eight aesthetic principles.
- Objects are aesthetically valuable if they have a meaning or teach something true.
- This principle identifies value in art with its ability to fulfill cultural or social functions.
- This view typically finds a teaching in art that nonart cannot provide.
- For example: "This soap opera makes you think about what you'd do in this situation, without having to live through it."
- Objects are aesthetically valuable if they express the values of the cultures they arise in, or the artists who make them.
- This principle also identifies value with art's ability to fulfill cultural or social functions.
- Note that you don't have to believe what the object says or even believe that it has given an argument for the values it represents.
- "The Iliad makes a warrior's values vivid."
- Objects are aesthetically valuable if they can lead to social change.
- This is the third principle that identifies value with art's ability to fulfill cultural or social functions.
- In this case, you need to believe that the social change is an improvement.
- "The Jungle led to reform of meat-packing laws."
- Objects are aesthetically valuable if they give their audience pleasure.
- This principle connects aesthetic value to a thing's ability to produce a type of psychological experience.
- We can put this a little more broadly by saying that the art object contributes to our happiness.
- "Four Weddings and a Funeral brings pure delight."
- Objects are aesthetically valuable if they give their audience certain emotions.
- This principle, like the last one, connects value to a thing's ability to produce a type of psychological experience.
- We may not want to have those emotions aroused in daily life, but we still value art for awakening them.
- "The Blair Witch Project keeps you on the edge of your seat with terror."
- Objects are aesthetically valuable if they produce a special experience that comes only from art, such as the willing suspension of disbelief.
- Again, aesthetic value comes down to the production of a certain subjective state.
- You may think of the state as nonemotional, or as a special art-emotion.
- "Lolita is so perfectly constructed that it made me feel as though I were writing it."
- Like all the other principles described so far, this one connects aesthetic value to a function that art has.
- Objects are aesthetically valuable if they possess a special aesthetic (formal) property.
- No explicit reference to function comes into this principle, though it may enter when one defines aesthetic form.
- In its simplest version this principle identifies the aesthetic property with beauty; more complex varieties of the same principle speak of artistic unity or organization.
- "Harlem Airshaft begins with a simple melody, breaks it down into its basic elements, and rearranges them into a surprising new form, with every part getting beautifully reinterpreted."
- Objects are aesthetically valuable because of features that no reasons can determine, and that no argument can establish.
- This principle corresponds to moral subjectivism: There's nothing to say in reasoned discourse about tastes.
- Roughly, this is the view that an object is aesthetically valuable if someone values it.
8. Aesthetic reasoning employs one or more of those eight principles in the attempt to produce reliable grounds for an aesthetic judgment.
- We can sometimes appeal to more than one principle in a single argument, but not always.
- It is easy to unite the first and the third principles, and believe that an object gets its value both from teaching something important about morality and from (thereby) influencing us to become better people.
- Other principles contradict each other at the theoretical level, as when the special nonemotional experience of the sixth principle conflicts with the claim of ordinary emotional experience in the fifth.
- Two principles may agree theoretically, but lead to disagreements in particular cases. You can value both social change and pleasure; but an enjoyably fluffy television show becomes good on the second criterion and bad on the first.
- Objects are evaluated positively according to a given criterion if they satisfy its requirements, negatively if they don't.
- A good argument supports an aesthetic judgment by describing features of a work, as long as they are both relevant and true.
- The relevance of a feature depends on the aesthetic principles one believes.
- Features must also have descriptive truth: You can't say, "This movie gets its socially educational value by depicting every stratum of U.S. society," if the film only has three characters—a married couple and their child.
9. Aesthetic principles may not have the foundation that moral or legal principles do, but they contribute to aesthetic experience.
- On some views, aesthetic principles try to capture the definition (see Chapter 2) of aesthetic value.
- These principles effectively teach the language of art.
- But we must recognize that innovation in art can lead us to expand our definitions of its value.
- On another view, aesthetic principles are inductive generalizations (see Chapter 11) of the features of objects we have called good art.
- In that case, applying aesthetic principles to new objects amounts to making an analogical argument, with accepted works of art as our sample and the new ones our target.
- Because art changes, we can find ourselves making analogies among dissimilar things.
- Even if these two accounts work together, the changes in art may make general principles seem inadequate to the process of evaluation.
- We may agree that aesthetic principles are not true claims and still use them to guide our experience.
- In that case, aesthetic arguments have emotive force.
- The argument directs our attention to certain features of a work in order to influence our reaction to it.
- Even without being true, claims can be worded more or less successfully, depending on their clarity, relevance, and so on.
- What matters more than aesthetic principles are the features of a given work that the principles draw our attention to.
- So we can use the principles to focus our reaction to a given work, noticing features we might not have looked for.
- We can then incorporate those features into an argument that effectively recommends to other people that they focus their own reactions in a similar way.