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“Rules, Patterns, and Prophecies”

A number of different conceptions of legal reasoning appear to recognize two different levels at which legal reasoning that leads to adjudicative decisions takes place – the surface level of rules, and some underlying level of considerations.  According to the classical Legal Realist conception of legal reasoning in particular, the rules that judges invoke in their decisionmaking often amount to little more than “window dressing”, and it is the underlying considerations that really drive the decisions.  This paper broaches a different and somewhat more vindicatory (as opposed to debunking) explanation of what judges do, and of the relation between the two levels of legal reasoning.  In doing so, it opportunistically exploits some theoretical components from the connectionist conception of cognition and the writings of Oliver Wendell Holmes.

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Kevin Toh joined UCL Laws as a Senior Lecturer in 2016, and became a Professor of Philosophy of Law in 2020. Previously, he was an Associate Professor in the Department of Philosophy at San Francisco State University, and an Assistant Professor in the Department of Philosophy at Indiana University in Bloomington. Prof. Toh has also held a Visiting Fellowship in the Foundations of Normativity Project at the Institute for Advanced Studies in the Humanities at University of Edinburgh (Summer 2016), an Emerging Scholars Program Fellowship at University of Texas School of Law (2009-11), and an H.L.A. Hart Visiting Fellowship in Ethics and Legal Philosophy at University College, Oxford University and the Oxford Centre in Ethics and Philosophy of Law (Hilary 2006). In 1997-98, he was a law clerk for Associate Justice Charles Fried of the Massachusetts Supreme Judicial Court.

Prof. Toh has A.B. (Social Studies) from Harvard College; and J.D., M.A. (philosophy), and Ph.D. (philosophy) from the University of Michigan.