Further, many legal concepts, such as that of "reasonableness," are not only highly "fluid" in nature, but also involve more than a "mere communicative act" directed to the individuals, such as judge or jury, who will interpret or apply them. Rather these sorts of terms specifically require a "participatory response" or "deliberative endeavor" by the individual(s) applying them to particular fact situations (i.e., they require that the individual make a judgment not just about what "reasonableness" means as a word or concept but also about what "reasonableness" entails in the cases that come before him). The variability of this "participatory response" produces a degree of inconsistency in application across similar cases quite familiar to anyone who has tried a negligence case before a jury or polled a class full of
students on the precise mental state (recklessness, criminal negligence, civil negligence, non-negligence, etc.) of an actor in a case or hypothetical who has, say, struck a construction worker with his automobile. Thus the combination of the fluidity of words and the variability of the "participatory response" required by many legal concepts leads to a significant degree of legal uncertainty in the context of adjudication.

In developing the approach discussed above, Halpin addresses a number of the basic questions of analytical jurisprudence, including the question of whether there are right answers to "hard" cases, those legal controversies involving particularly complex or novel legal issues. Halpin engages the arguments of Ronald Dworkin, the preeminent defender of the "right-answer" thesis. Dworkin's argument is quite complex, analyzing as many as seven analytically separate objections to the right-answer thesis, but its core is clear: The "right-answer" thesis conforms to a "common-sense" internal understanding of legal practice from the lawyer's perspective and is further supported by the principle of "bivalence" or the law of the excluded middle (Dworkin 1985: 119-45). As to the latter, as Halpin
describes it, this law of logic asserts that "something must either be or not be the case (p v ~p)," that there is "no room for a situation in the middle of … two alternatives where something both is and is not the case." (p. 64). Using the example of a contract dispute, Dworkin argues that the internal view of lawyers (who will claim on

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opposing sides the validity and invalidity of the contract) and the law of the excluded middle (which holds that the contract must be either valid or invalid, p or ~p, since there is no possibility of a "middle" alternative in between two propositions which are each the negation of the other) support the view that there is a right answer even in hard cases.

Halpin rejects Dworkin's arguments in support of the "right-answer" thesis and contends that a proper analysis of points related to the "law of the exclude middle" actually "supports the possibility of a "no-right-answer thesis," and does so in a way that embraces "the common sense positions that Dworkin has misappropriated to lend credibility to his own view of the law." (p. 86) At the grave risk of oversimplifying it, one can identify three main points in Halpin's argument: First, Halpin observes that courts of law are designed to resolve legal disputes and thus that lawyers do not have an incentive to CLAIM anything other than simple validity or
invalidity of a contract on behalf of their clients. Therefore, the "common-sense" perspective of lawyers is readily explicable in terms of the practical incentives of legal practice as a method of dispute resolution and lends no special support to Dworkin's "right-answer" thesis. Second, Halpin demonstrates that if one unpacks the range of potential answers to the question of the legal validity of a contract, one finds that the law of the excluded middle is upheld even if the law does NOT resolve the issue of (in)validity. This range of answers includes: (1a) the contract is resolved as valid; (1b) the contract is not resolved as valid; (2a) the contract is resolved as invalid; (2b) the contract is not resolved as invalid; (3) the contract is not resolved as valid or invalid. This range of possibilities clearly demonstrates that the law of the excluded middle is upheld as between (1a) and its negation (1b) and as between (2a) and its negation (2b). Additionally, possibility (3)("the contract is not resolved as valid or invalid") both asserts that there is no right answer to the legal question of the contract dispute and also involves no assertion that there is a middle ground between "a valid contract" and its negation "an invalid contract," in (potential) violation of the law of the excluded middle. Third, Halpin argues there is good reason to believe that possibility (3) actually occurs, that legal materials MAY in some or many cases simply not provide enough information to resolve a legal dispute. To use an example favored by both Dworkin and Halpin, this may be true in much the same way that we may not have been given enough information to know the blood-type of Dickens' David Copperfield, though he must certainly have had either Type A or its negation, not-Type A, given that there is no "middle"
possibility between the two (pp. 89-92). On these grounds, then, Dworkin's position is refuted and the right-answer thesis must stand or fall without the support of either common-sense legal practice or the law of the excluded middle.

In developing his general understanding of law and legal reasoning, Halpin also addresses the "autonomy" of law question in the context of a debate between Joseph Raz (1998) and Gerald Postema (1996). Raz is the leading proponent of the autonomy of law thesis, the conceptual separation of law from morality in the specific sense that legal norms rest ultimately upon social facts and carry no necessary moral value (Raz 1979: 37-52). Raz's expression of this view is known as the "sources thesis," the assertion that the content of law can be traced back to various sources of law which can be determined as a matter of social fact or convention involving

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no aspect of evaluative endeavor as to their moral value. This positivist assertion of the autonomy of law is driven largely by the need to explain the special authority of law, why (or how) it is that law gives social actors a reason for action in addition to and independent of the moral value of the norm reflected in the law.

Halpin takes issue with Raz on several counts. In particular, he notes Raz's concession that the autonomy of law applies to the content of law only in the limited sense of the "sources thesis," the identification of legal materials (via their sources) by judges and others, not to the nature of legal reasoning and thus not the ultimate conclusion by courts of law about "what the law is" on a particular issue. In short, Raz admits that legal reasoning is not "autonomous," that judges often draw on moral values in deciding-in the case at hand-the meaning of the legal materials identified by the sources thesis. Halpin concludes that this concession by Raz demonstrates that the ultimate content of the law, as determined through the legal reasoning of judges in the cases before them, is not autonomous but rather (partially) determined by the evaluative legal reasoning of the judges. Thus the ultimate content of law is not (wholly) autonomous, if the content is understood as not merely the legal materials a judge begins with in any particular case but also as encompassing his conclusion as to their meaning after a process of legal/judicial
reasoning (pp. 29-35). Further, Halpin argues that this conclusion about the (lack of) autonomy of law may be concealed by applying the epithet "legal" to the
reasoning from legal materials engaged in by judges and lawyers in resolving the meaning and application of legal materials in particular cases, but the autonomy of law is not in fact preserved thereby. Rather Halpin contends that the reasoning process of judges, as Raz concedes, often involves moral-political evaluative reasoning, whatever one chooses to calls that reasoning process. Further, Halpin contends that the reasoning processes of judges and lawyers conform to general methods of reasoning and that there is in fact nothing specifically "legal" about this process other than that it is reasoning about, from, or according to legal
materials. Therefore, the term "legal reasoning" is a misnomer, and a phrase such as "reasoning with law" better captures the character of the reasoning in question. (pp. 35-53). In sum, Halpin asserts a significant modification of the sources thesis to include the evaluative or moral-political reasoning of judges in establishing the meaning of legal materials in the cases they decide, which requires a forthright abandonment of the claim of the autonomy of law.

Halpin views much of the driving force behind positivist approaches to law as a desire for greater certainty in dispute resolution. In light of his analysis, Halpin ultimately suggests that "[i]n place of autonomy, we should perhaps speak of the FINALITY of law: the capacity of law to provide a final determination [via final judicial resolutions] in matters that require determination to avoid uncertainty or dispute in our social relations." (p. 56, footnote omitted, emphasis added). In short, Halpin concludes that "[w]e may have to acknowledge that there is no master test by which we can always identify WHAT law we have, but instead only a test
to identify WHO will provide an answer to the question" (p. 58, emphasis added). However, this shift-in the face of inevitable legal uncertainty-from positivist approaches, with their emphasis on narrowing legal uncertainty, to finality, with its emphasis on authoritative resolution by judicial officers, brings its own new

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challenges and uncertainties.

As H. L. A. Hart observed more than a generation ago, in the context of his discussion of legal skepticism, to assert in any absolute form that the law is "what the courts say it is" is analytically unsound for the simple reason that it requires some form of law to create courts in the first place (Hart 1994: 136-38). Similarly, to respond to concerns about (un)certainty in dispute resolution by placing an emphasis on the question of the finality of judicial resolution (the "who" test) rather than on classifying and clarifying law and legal reasoning (the "what" test) simply raises a series of new concerns about the first test, about who is legally "authorized" to provide a final resolution-and in what manner. Indeed, identifying the "authorized" court with the final say on the meaning of a law in question will often raise a series of complex and potentially novel mixed legal-normative questions. This is particularly true if we do not simply focus on whether a court has finality as a general matter, such as a state supreme court over state law, but also whether its grant of authority under the positive or organic law structuring the government and
establishing the courts has implicit as well as explicit limitations which the court may have exceeded in a particular case. For instance, in American constitutional law, the authority of the Supreme Court under Article III and the broader American constitutional design to engage in "free-wheeling" judicial review has been questioned on structural constitutional grounds as potentially beyond the proper scope of the Court's authority (e.g., George 2001; Nowlin 2000-1). Thus as is often
recognized in American constitutional law, the "who" question and the "what" question are inextricably intertwined (Murphy et al. 1995). Moreover, there is obviously a significant measure of potential uncertainty in the resolution of these legal questions concerning the scope of the judicial power because they involve a mix of legal and normative judgments and thus will inexorably produce a substantial measure of disagreement. In fact, Halpin recognizes these problems in passing, and his discussion of judicial review in the United Kingdom recognizes similar concerns, where notably he suggests that the relevant legal materials (the common law and
statutes of Parliament) may not provide an answer to the question of the courts' authority (pp. 80-82). Therefore, a shift in focus to judicial finality would simply create new incentives to problematize and dispute the judicial authority to provide final resolutions of legal controversies either as a general matter or as linked to particular understandings of the judicial role which a court is thought "(un-)authorized" to assume. Here too, in the area of judicial power, we can say that the law's capacity for "authoritative resolution of disputes" is matched by its significant openings to controversy.

In any event, this much should be clear from the preceding discussion. REASONING WITH LAW is a significant contribution to the field of analytic jurisprudence. It is a work praiseworthy for its precise and rigorous development of argument, extraordinary clarity of exposition, admirable depth and breadth of learning, and highly engaging prose style. Halpin's REASONING WITH LAW should be of great interest to anyone working in the field of analytic jurisprudence or the judicial power, and it will well repay a careful reading.

REFERENCES:

Dworkin, Ronald. 1985. A MATTER OF

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PRINCIPLE, Cambridge: Harvard University Press.

George, Robert P. 2001. "The Natural Law Due Process Philosophy." FORDHAM LAW REVIEW. 69:2301.

Hart, H. L. A. 1994. THE CONCEPT OF LAW, 2nd ed. Oxford: Clarendon Press.

Murphy, Walter F., et al. 1995. AMERICAN CONSTITUTIONAL INTERPRETATION. 2nd Edition. Westbury, NY: Foundation Press.

Nowlin, Jack Wade. 2000-1. "The Constitutional Illegitimacy of Expansive Judicial Power: A Populist Structural Interpretive Analysis." The KENTUCKY
LAW JOURNAL. 89:387.

Postema, Gerald. 1996. "Law's Autonomy and Public Practical Reason," in Robert P. George, ed. THE AUTONOMY OF LAW. Oxford: Clarendon Press.

Raz, Joseph. 1979. THE AUTHORITY OF LAW. Oxford: Clarendon Press.

------, 1998. "Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment." LEGAL THEORY. 4:1-20.

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Copyright 2002 by the author, Jack Wade Nowlin.