Interpretation of the Spanish Constitutional Amendment Bill as a Moral Argument

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.

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.

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.

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.

The Evaluative Life: Between Fact and Value in Maccormick’s Theories of Law and Legal Reasoning

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 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.

Background Existing research suggests a positive relationship between the introduction of same-sex marriage and country-level acceptance of homosexuality across Europe in the first decade of the 21st century. Between 2010 and 2018, another 8 countries in Europe introduced same-sex marriage. Given the well-established association between greater social acceptance of sexual minorities and LGBT health, it is important to continue to monitor the effect of same-sex marriage policies on public attitudes. Methods Using data from waves 1 through 9 of the European Social Survey (ESS), the lagged association between same-sex marriage and acceptance of homosexuality in the subsequent wave was analysed for 12 European countries that introduced same-sex marriage between 2002 and 2018. Acceptance of sexual minorities was assessed using the statement, “Gay men and lesbians should be free to live their own life as they wish”, which was dichotomised into two groups: “agree strongly” or “agree” vs. “neither agree nor disagree”, “disagree”, or “disagree strongly”. The association between same-sex marriage laws and acceptance was analysed in mixed-effects logistic regression models adjusting for country-level and individual-level confounders and survey year. Results On the country level, acceptance of homosexuality ranged from 61% in Portugal in 2006 to 96% in Iceland in 2016. Based on the total sample of 171,683 observations, acceptance increased from 77% in 2002 to 88% in 2018. Preliminary analyses indicate that existence of same-sex marriage at the time of data collection was associated with 24% increased odds of acceptance of homosexuality in fully adjusted models (95% CI: 1.05-1.48). Conclusions This study provides further evidence of an association between same-sex marriage laws and public acceptance of homosexuality. Additional research will be needed in order to further investigate this relationship beyond Western Europe and in relation to sexual minority health and well-being. Key messages For 12 European countries, evidence of an association between the introduction of same-sex marriage between 2002 and 2018, and subsequent accepting public attitudes towards homosexuality was found. Given their role as a key social determinant of health, further research on the association between social norms accepting of sexual minority populations and inclusive social policies is warranted.

This paper by-passes the various public tropes, such as “marriage equality”, and concentrates on determining whether or not a same-sex marriage law would be sophistically effective in Australia. It revives the ancient Greek sophistical rhetorical skill of proposing a law, and applies it as a critical context to the topic of legislating for same-sex marriage. The objective is to assess whether or not a same-sex marriage law will be effective in its legislative objects. It proposes to discuss whether the parliament could introduce such a law so that the law’s objects were achieved effectively in the public mind. Argument will try to show that introducing a law to create same-sex marriage would fail because of subsisting priestly legislation on the subject of marriage. Its two hypotheses are that the canon law and other English priestly legislation restrict the scope of marriage regulation, and marriage could not be re-defined to cover same-sex marriage. Sections of the paper examining the law historically employ the historiographical method of identifying underlying norms, the effect of which is occasional reverse chronologies. The article’s conclusion will assert that a statute for legal and duly registered same-sex marriage likely would be, according to sophistical rhetorical reasoning, a fiction misrepresenting the truth of the subsisting legal and social institutions of marriage.

In sickness and in health: Same-sex marriage laws and sexually transmitted infections

Jeremy Waldron’s ‘Dworkinian’ Theory of Legal Reasoning: The Neglected Link

Virtudes, Argumentación Jurídica y Etica Judicial

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory .

Interpretation and Law - Why is Interpretation Important for Law: Ronald Dworkin (1994) Law, Philosophy and Interpretation Joseph Raz (1996) Why Interpret. Interpretation and Legal Reasoning - Law and Morality: Michael Detmold (1989) Law as Practical Reason Fernando Atria (1999) Legal Reasoning and Legal Theory Revisited Michael Moore (1985) A Natural Law Theory of Legal Interpretation. Interpretation and Application of Legal Rules, Vagueness and Defeasibility: Robert Alexy (1993) Justification and Application of Norms Gunther Klaus (1993) Critical Remarks on Robert Alexy's Spcial Case Thesis Zenon Bankowski (1996) Law, Love and Computers Carlos Alchourron (1996) On Law and Logic. Legal Interpretation and Politics: Roberto Unger (1996) Legal Analysis as Institutional Imagination Emilios Christodoulidis (1996) The Inertia of Institutional Imagination - A Reply to Roberto Unger. Interpretation and Objectivity: Charles Yablon (1987) Law and Metaphysics Jes Bjarup (1988) Kripke's Case Stanley Fish (1989) Working in the Chain Gang, reprinted in Fish, Doing What Comes Naturally. Interpreting the Law: M. Van Dunne (1998) Normative and Narrative Coherence in Legal Decision-Making Jerzy Worblewski and Neil MacCormick (1994) Justification and Interpretation Aleksander Peczenik (1988) Authority Reasons in Legal and Moral Reasoning Robert Summers (1978) Two Types of Substantive Reasons Neil MacCormick (1999) Reasonableness and Objectivity.

'An Expansionist Model of Legal Reasoning'