Hartova kritika formalizma i sudijsko tumačenje prava

This paper traces, examines and demonstrates Neil MacCormick’s theory of legal reasoning and its evolution. MacCormick’s views shaped gradually, therefore his theory could be divided into two main stages. Thus, a diachronic approach is justified. The aim of this paper is to analyse the difference between the theses of the theory of legal reasoning explained in Legal Reasoning and Legal Theory (1978) and general revisions to this theory marked in Rhetoric and the Rule of Law (2005). According to the author, the most important change in MacCormick’s theory of legal reasoning is the re-examination of the role of deductive reasoning in the process of judicial reasoning. This change leads to extension of the logical aspects of MacCormick’s theory of legal reasoning (legal syllogism) to include rhetorical aspects (argumentative character of law) and ethical aspects (the idea of the rule of law). The evolution of MacCormick’s theory of legal reasoning seems to be a model example of the changes in contemporary philosophy of law.

This book is about legal theory and legal reasoning. In particular,it seeks to examine the relations that obtain between law and a theory of law and legal reasoning and a theory of legal reasoning. Two features of law and legal reasoning are treated as being of particular importance in this regard: law is institutional, and legal reasoning is formal. These two features are so closely connected that it is reasonable to believe that in fact they are simply two ways of looking at the same issue. This becomes clearer as the focus of the book shifts from the institutional nature of law to the consequences of this for legal reasoning, and which is the principal focus of the book. The author received the European Academy of Legal Theory award in 2000 for the doctoral dissertation on which this work was based.

This paper traces, examines, and demonstrates Neil MacCormick’s theory of legal reasoning and its evolution. MacCormick’s views were shaped gradually so his theory could be divided into two main stages. Therefore, the use of the diachronic approach is justified. The aim of this paper is to analyse the difference between the theses of the theory of legal reasoning explained in Legal Reasoning and Legal Theory (1978) and general revisions to this theory marked in Rhetoric and the Rule of Law (2005). According to the author, the most important change in MacCormick’s theory of legal reasoning is an examination of the role of deductive reasoning in the process of judicial reasoning. This change leads to an extension of the logical aspects of MacCormick’s theory of legal reasoning (legal syllogism) to include rhetorical aspects (argumentative character of law) and ethical aspects (the idea of the rule of law). The evolution of the MacCormick’s theory of legal reasoning seems to be a model example of the changes in contemporary philosophy of law.

The paper examines and critically reflects on Neil MacCormick’s theory of legal reasoning, and more specifically with his theory of interpretation. To begin with, I will try to summarize the main tenets of MacCormick’s theory of legal interpretation; I will then move on to consider a specific interpretive problem, that is the place of defeasibility in law. Lastly, I will try to put these ideas in the context of MacCormick’s ideas on the Rule of law. The perspective of the examination is diachronical in character: I will try to highlight what seems to me a substantial evolution of MacCormick’s ideas on these topics, and to put this evolution in the broader context of MacCormick’s position within the jurisprudential camp.

Acknowledgements. Introduction. Part I: Conscience and Legal Reasoning. 1. Legal reasoning in the theory of Petrazycki. 2. Thomas Aquinas on conscience. 3. Aquinas's theory of conscience and legal reasoning. 4. Theories of legal reasoning and types of judicial conscience. Part II: Agapic Casuistry in Judicial Decision Making. 5. The method of casuistry. 6. Love as the source of agapic casuistry. 7. Impartial sympathy as an implication of agapic casuistry. 8. Watchfulness as an implication of agapic casuistry. Part III: Agapic Casuistry in Action. 9. Natural justice and conscience of the judges in case Ridge v. Baldwin. 10. Sympathy judgments and the declaratory power of the High Court of Justiciary. 11. Sympathy judgements of conscience in the Russian Constitutional Court. 12. Sympathy judgments of conscience in the European Court of Human Rights. Conclusions. Bibliography. Index.

This paper examines the ‘fact-value separation’ in the context of the practice of legal theory, legal scholarship and legal reasoning. It is divided into three parts: the first part examines recent prominent attempts to move beyond the fact-value dichotomy, while retaining the explanatory utility of the distinction between facts and values; the second analyses the role of the separation in the context of Neil MacCormick’s methodological reflections on the practice of legal theory and legal scholarship; and the third considers the role of the separation in the context of MacCormick’s theory of legal reasoning. The paper argues that although reference to thick terms or thick concepts does help to see the entanglement of facts and values, a better strategy for resisting the dichotomy (while not destroying the utility of the distinction) is to focus on the processes involved in the evaluative lives of evaluative beings (as recommended recently by Andrew Sayer in his Why Things Matter to People, 2011). One of the key features of this evaluative life is (in Sayer’s words) our active ‘striving across the gap between what we have and what we could be, or need or want to be.’ The paper examines the evaluative life of legal theorists, legal scholars and legal practitioners (particularly as this is depicted by MacCormick), and thereby seeks to point to the entanglement of fact and value in the practice of legal theory, legal scholarship and legal reasoning.

This article argues that Ibero-American legal theory has misunderstood Jeremy Waldron’s theory of legal reasoning, displaying it as a formalist theory of adjudication, and Waldron’s view as exclusive-positivist. This originates in a distorted reading of his theory of law, which is explained, in turn, by the image of Waldron as Dworkin’s opponent, constructed (mostly) by constitutional law scholars. This article shows that Waldron actually holds a “dworkinian” theory of legal reasoning, which works as a link between his theory of democracy and his more recent theory of human dignity. Both features have been virtually ignored in Spanish-speaking academic circles.

Segun Atienza, la teoria de la argumentacion se tiene que ocupar de responder tres preguntas: como analizar una argumentacion, como evaluarla y como argumentar. En el texto que nos ocupa, Atienza se centra en la segunda de estas cuestiones: como evaluar una argumentacion, en concreto, una argumentacion judicial. Segun Atienza, son cinco los criterios basicos de evaluacion: universalidad, coherencia, adecuacion de las consecuencias, moral social y moral justificada. Estos criterios, sin embargo, no siempre nos permiten solucionar el problema de la evaluacion de una argumentacion juridica ya que, en ocasiones, no son lo suficientemente precisos, son dificiles de aplicar y ademas pueden entrar en conflicto. En estas situaciones, segun Atienza, es necesario apelar a la idea de razonabilidad. La decision razonable es aquella que satisface, en la mayor medida posible, los citados criterios y que resulta, ademas, aceptable.

In the context of the Spanish Constitutional Amendment Bill of 2005, the Socialist government of President José Luis Rodrguez Zapatero legalized same-sex marriage (SSM). The SSM bill was interpreted as a constitutional amendment. The original meaning of Art. 32.1, particularly its implied content, became, in sum, both an aid of constitu-tional moral legitimacy and an argumentative device to rebut the constitutional amendment claim made consistently by opponents of the SSM legislation. In the present analysis, it is argued that the claim of distributiveness in the original meaning was played in the legal reasoning and the legal decisions behind the implementation of the new SSM law. This incoherent distributive reading, the crux of this paper, provides insights into the theory of legal reasoning, particularly in what concerns the relation between linguistic and legal meaning. In particular, the contradictory and unfaithful approach that pro-SSM law-interpreters took to the original text demonstrates the value of linguistic meaning in legal interpretation when moral arguments alone cannot answer a legal question.

In the context of the Spanish Constitutional Amendment Bill of 2005, the Socialist government of President José Luis Rodrguez Zapatero legalized same-sex marriage (SSM). The SSM bill was interpreted as a constitutional amendment. The original meaning of Art. 32.1, particularly its implied content, became, in sum, both an aid of constitu-tional moral legitimacy and an argumentative device to rebut the constitutional amendment claim made consistently by opponents of the SSM legislation. In the present analysis, it is argued that the claim of distributiveness in the original meaning was played in the legal reasoning and the legal decisions behind the implementation of the new SSM law. This incoherent distributive reading, the crux of this paper, provides insights into the theory of legal reasoning, particularly in what concerns the relation between linguistic and legal meaning. In particular, the contradictory and unfaithful approach that pro-SSM law-interpreters took to the original text demonstrates the value of linguistic meaning in legal interpretation when moral arguments alone cannot answer a legal question.

As we have seen from the previous chapters, conscience is a complex phenomenon. Since conscience is presented as a human mind passing moral judgements, the problem of the variety of these judgements in its relation to legal reasoning becomes important for the purpose of the present research. Legal reasoning means a kind of reasoning which through finding relevant facts, appropriate legal rules, and good reasons for the application of these rules to the case, leads to a legal decision. There are many states of conscience and there are many types of legal reasoning. The basic presupposition of this book is that a theory of legal reasoning and judicial conscience are closely related to each other. To a certain degree, the variety of theories of legal reasoning represents the variety of moral judgements made by the judges.

The article shows the main approaches to the theory of interpretation and legal interpretation in Western European philosophical and legal science. The art of interpretation has its origins in ancient times and has developed and is developing in various directions by representatives of different sciences. It seems justified to start the research with a general theory of interpretation, followed by a transition to legal interpretation (interpretation of law). At the same time, normative interpretation is considered as a link through which the transition from interpretation in general to legal interpretation takes place. Only the works of representatives of the Romano-German law school have been analyzed. Moreover, both works that belong to the classics of philosophy and jurisprudence, and the works of modern researchers. It is shown that the fundamental ideas of the classics of the theory of interpretation have been developed in the works of modern lawyers. The author proceeds from the fact that the peculiarities and patterns of the formation and formation of the Romano-Germanic legal family significantly influenced the views and methodological approaches of lawyers representing these legal systems. On the basis of modern research, a number of conclusions are drawn that seem important for the modern theory of interpretation of law and legal practice. Attention is focused on the fact that it is unacceptable to identify political and specifically legal interpretation. The author draws attention to the fact that currently the research of the theory of interpretation is not limited to the framework of national legal systems and goes to the global level. This article should be considered as one of their possible attempts to study the theoretical and legal patterns existing in the theory of legal interpretation. The article may be of interest to specialists in the fi eld of general theory of law and comparative law.

En este trabajo se sostiene que la teoría del derecho iberoamericana ha malinterpretado la teoría del razonamiento jurídico de Jeremy Waldron, presentándola como una teoría formalista de la adjudicación, y a Waldron como un positivista excluyente. Esto se debe a una lectura sesgada de su teoría del derecho, que se explica, a su vez, por la imagen que el constitucionalismo ha construido en torno a Waldron, como un opositor de Dworkin. Este trabajo muestra que Waldron suscribe a una teoría “dworkiniana” del razonamiento jurídico, la que opera como eslabón entre su teoría de la democracia y su teoría más reciente de la dignidad humana. Ambas cuestiones han sido virtualmente ignoradas por el medio académico hispanoparlante.

This paper presents practical reasoning in the light of John M. Finnis’ new natural law theory. Finnis’ views were shaped by Aquinas’ thoughts on natural law but he was also strongly inspired by Germain Grisez’ new approach, so his theory could be named a new natural law theory. The aim of this paper is to analyse the concept of legal reasoning as practical reasoning, which Finnis intended mainly as a strong critique of Ronald Dworkin’s theory of legal reasoning based on the concept of the one right answer. According to the author of this paper, Finnis’ critical approach to Dworkin leads to a gradual extension of the former’s concept of legal reasoning to include positivistic aspects (rapprochement with Joseph Raz’ views) and institutional aspects (rapprochement with Neil MacCormick’s views). Therefore, Finnis’ theory of legal reasoning seems to be a model example of the rapprochement between natural law and legal positivism in contemporary philosophy of law.

In this article I explore the action-guiding capacity of MacCormick’s theory of legal reasoning. More specifically, my aim is to determine whether this theory will take us further than the so-called legal method, and, if so, whether it can give us the kind of concrete guidance we need when confronted with a hard case. Suppose a judge or an attorney or an administrator really understood and could apply this theory. Would it be of any use to him when faced with a hard case? Would it be able to guide him to a decision when the interpretive arguments conflict with one another? I argue that in many cases MacCormick’s theory can indeed give judges the kind of concrete guidance they need. The reason why MacCormick’s theory is successful in this regard is that it offers judges a reasonably firm ranking of the interpretive arguments, and that it is rather easy to understand and apply. The importance of the latter fact can hardly be exaggerated, because it means that judges will be able to apply the theory even though they may lack a deep understanding of the relevant field of substantive law.