Nature Of Legal Reasoning Research Articles

Dialectical Approach to Legal Arguing and Legal Argumentation

The article is devoted to legal argumentation, namely to its research by dialectical approach. The aim of the article is to determine characteristic features of dialectical approach to legal argumentation.
 Dialectical approach to the research of legal argumentation should include philosophical, theoretical, empirical components. Philosophical component of legal argumentation research consists in the critical conception of rationality i.e. the philosophical axiomatic idea about rationality of legal argumentation, which is systematically tested within discourse or critical discussion. Dialectical theoretical model of legal argumentation ensures mutual acceptability of legal argumentation by the parties. Dialectical approach deals with legal argumentation mainly in the “context of justification.” Dialectical approach to legal arguing implies specific standard of soundness of the argumentation – acceptability standard. Empirical component of legal argumentation includes reconstruction of argumentation and its weighting (analytic component) as well as analysis of particular legal reasoning (practical component). Dialectical approach highlights hermeneutical nature of legal reasoning.
 Dialectical approach to legal argumentation lets us assume some ontological issues concerning legal argumentation. Legal argumentation is considered as the form of rational communication of particular persons to reach mutual acceptability of legally important conclusions within the procedure of discussion. Legal argumentation is the result of such impact embodied in acceptability of legally binding issues within the procedure of rational discussion.

Correspondence, Constructivism, and Representation

AbstractTaking the complexity and diversity of Islamic law (fiqh) as a point of departure, this article examines a series of positions advanced by Muslim jurists on the relationship between law and astronomy. Focusing primarily on the question of the appropriateness of relying on astronomical calculations to determine the months of the hijri calendar, it considers three epistemological stances modeled by these positions: correspondence, constructivism, and representation. Taken together, these interventions constitute a minoritarian strain within the fiqh literature that exploited the practices, structures, and methods of reasoning of the Hanafi and Shafi‘i legal schools (madhhabs) to argue in favor of the employment of astronomical calculations for ritual purposes. Though these were anomalous positions at variance from the dominant evidentiary regime that privileged perception over calculation, the view from the margins they afford provide a helpful window onto the nature of legal reasoning in Sunni Islam, revealing the importance of not only proximate social triggers to change, but also the relevance of more enduring features of madhhab reasoning—the school's role as a historical repository of jurists' opinions, the propensity to recruit the authority and argumentation of preceding departures, and the expectation to proceed with the majority regime in mind.

Interventions de l’herméneutique juridique dans la résolution des ambiguïtés de la loi lors des contestations en justice à l’époque byzantine

Prenant pour point de départ une illustration succincte des principales influences de la théorie rhétorique de l’intention (voluntas) sur la promotion de l’interprétation du droit au cours de la période romaine et des premiers siècles de Byzance, l’étude s’attache à repérer des éléments des “constitutions des causes” rhétoriques dans certains textes d’un traité juridique du xiie siècle, l’Ecloga librorum Ι-Χ Basilicorum. La construction juridique de l’application analogique d’une règle de droit coutumier à une affaire précise portée devant un tribunal ainsi que l’invocation de notions axiologiques telles que le “raisonnement” (λογισμός) dans le développement de l’argumentation judiciaire et de la formulation du jugement prouvent la nature et la fonction particulières de la réflexion juridique, en tant que réflexion qui est parfois appelée à dépasser les règles de l’art oratoire.

Rediscovering artificial intelligence and law: an inadequate jurisprudence?

Headlines suggesting that Google scientists had developed the first computer programme capable of learning a wide variety of tasks independently, in what has been hailed as a significant step towards ‘true artificial intelligence’1 may or may not presage a new era of artificial intelligence (AI) research. Nevertheless, they suggest a need to reconsider the story of AI in law. While significant changes have taken place in the application of information technology to law-work, these have resulted mainly from ordinary information technology processes such as data processing, data storage, retrieval and management in combination with the information rich, rapid and global communication and networking capabilities of the Internet. However, when information technology has been applied to deeper legal processes, which involve the very nature of law, the result has not been very successful. This is especially so in relation to the application of AI systems to law. Philip Leith blamed the meagre and unsatisfactory results of costly AI and law research on faulty jurisprudence and especially on almost exclusive reliance on analytical positivism and ignorance of user needs and requirements. Many involved with AI and law still refuse to acknowledge that there are underlying problems with the way they conceptualise the nature of legal reasoning. Does AI in law have a future then? This article explores recent nuanced approaches to AI and law research and suggests the need for rethinking the jurisprudence that underpins AI and law and in particular to consider the realist social economic and political context in which AI and law works.

Law and Defeasibility

The Logic of Legal Requirements. Essays on Defeasibility, edited by Jordi Ferrer Beltran and Giovanni Battista Ratti, and published by Oxford University Press in 2012, is a very much welcome contribution to one of the most discussed topics in the contemporary legal theory and philosophy. Defeasibility is connected to many essential issues such as the nature of legal reasoning, the structure of legal norms and legal system, the concept of legal validity, as well as the mechanisms and limits of...

Law as a Leap of Faith as OTHERS see IT

This is my reply to five extended critical assessments of my book Law as a Leap of Faith, appearing together in a symposium issue of Law and Philosophy. The critics are Kevin Toh, Luis Duarte d’Almeida and James Edwards, Fabio Perin Shecaira, Cristina Redondo, and Matthew Smith. The topics include H.L.A. Hart’s philosophical legacy, the moral claims of law, the nature of legal reasoning, the doctrine of legal positivism, and the possibility of alienation from law.

It'll Break Your Heart Every Time: <i>Flood v. Kuhn</i>, (Baseball) Romanticism and the Fallibility of Courts

The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson’s shattering of the color line in 1947 represented only the first step in the game’s evolution. With considerably less fanfare, Curt Flood took the next step. Flood’s ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It’ll Break Your Heart Every Time casts new light on Flood’s underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime’s grand mythology. When the Supreme Court’s infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball’s antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime’s mythology and its spell-binding romanticism in the making of bad law. In the process, the Essay also raises broader jurisprudential questions about the nature of legal reasoning and the powerful lure of epistemological narratives, particularly in the struggle for civil rights.

Pringle: Legal Reasoning, Text, Purpose and Teleology

The CJEU's judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case. The first was that the ESM was in reality concerned with monetary policy and not economic policy and thus fell within the exclusive competence of the EU, with the consequence that the Member States had no capacity to make the ESM. The second and most important aspect of the applicant's argument was that the ESM infringed the rule against bail outs contained in the Lisbon Treaty. The CJEU also rejected this argument. It correctly identified the rationale underlying the no bail out rule, this being to prevent diminution in the incentive for financial probity by the Member States. The Court then concluded that the terms of ESM assistance entailed no such diminution. This conclusion is however problematic as will be seen in the article, and the reality is that result in Pringle can only really be sustained by the addition of a teleogical dimension to the Court's reasoning. A third dimension to the case concerned the ability of the EU institutions to participate in the ESM. Reasons of space mean that this is not examined in any detail in this article. In brief, the CJEU applied prior rulings to the effect that EU institutions are able to participate in agreements made outside the EU legal framework, provided only that they are compatible with EU law, and that the powers accorded to the EU institutions do not alter the essential character of the powers conferred on those institutions by the Treaties. The application of this rule may well have been defensible in relation to the ESM, but it nonetheless raises more general issues of principle and legitimacy that have not been explored. A subsequent article will consider the foundational, procedural and substantive issues posed by this rule.

Legal Expert Systems: The Inadequacy of a Rule-Based Approach

The two different categories of legal AI system are described, and legal analysis systems are chosen as objects of study. So-called judgment machines are discussed, but it is decided that research in legal AI systems would be best carried-out in the area of legal expert systems. A model of legal reasoning is adopted, and two different methods of legal knowledge representation are examined: rule-based systems and case-based systems. It is argued that a rule-based approach to legal expert systems is inadequate given the requirements of lawyers and the nature of legal reasoning about cases. A new, eclectic approach is proposed, incorporating both rule-based and case-based knowledge representation. It is claimed that such an approach can form the basis of an effective and useful legal expert system.

Tokugawa Translations of Dutch Legal Texts

T HE formulation of Japanese legal codes modeled after those of the West in the relatively short span of years between 1868 and 1898 was doubtlessly facilitated by the prior accumulation of a degree of knowledge about Western law. Hitherto, however, research on the history of the reception of Western law in Japan has given little attention to the period before 1868, while discussions of the introduction of Western ideas during the Tokugawa period by and large have not addressed the issue of law, or have dealt with it only summarily. Yet, by virtue of its technical nature and specificity, the subject of law offers particular opportunities for exploring problems of cultural transmission and translation. Below I will seek to demonstrate this through consideration of a little-known episode in the early history of the translation of Western legal texts into Japanese. Mitsukuri Rinsho 0, fM# (1846-1897), a specialist in Western affairs charged by the government in the first years of Meiji with translating the French codes, complained about the difficulty of the task. He knew nothing about law, he pointed out, and found the meaning of many French legal terms, as well as the nature of legal reasoning, hard to understand. Even when he could grasp the meaning of the French terms, there was no Japanese vocabulary appropriate to convey them.' In fact, Rinsho could build on three decades of efforts to translate Western legal materials. In 1841, scholars of Dutch employed at the translation office attached to the Tenmondai )t,C the bakufu's astronomical observatory, had been ordered to translate Dutch law codes. Among those assigned to this project was Rinsho's grandfather, Mitsukuri Genpo Uf,Fcx (17991863). And when Rinsho started his work, there were already published translations of the notes taken in Leiden by Nishi Amane IN)N1 (1829-1897) and

From law to Dialaw: Why legal justification should be modelled as a dialogue

In recent years the process of argumentation has become an important subject of research in various disciplines such as legal philosophy, formal logic and AI and Law. Since many legal activities are governed by procedures, such as passing sentences, drafting legislation, applying for licences, etc., a procedural approach to legal reasoning seems natural. This paper discusses three characteristics of legal justification that justify the choice for a procedural, i.e. a dialogical, model: the difficulty of getting a solid foundation to base decisions on, the defeasible nature of legal reasoning and the open character of law.

Legal Reasoning and the Separation of Powers: A State-Level Analysis of Disputes Involving Federal Funds Appropriations

This article investigates the influence of judicial decisions on state legislative oversight of federal funds. A systematic analysis of judicial decisions is undertaken in an effort to reveal (a) the extent to which such activity on the part of legislatures is permitted or denied by courts, and (b) the nature of legal reasoning that determines differential outcomes. The analysis reveals, among other things, that there are two divergent paths of law: one upholding the legislative prerogative to exercise the power of the purse, and the other upholding the executive function of governors to act as custodians and executors of federal funds and programs. The delegation of legislative powers to interim committees is likewise investigated.

Logic or rhetoric in law?

One of the most crucial questions in the philosophy of law deals with the very nature of legal reasoning. Does this reasoning belong to logic or to rhetoric? This debate, increasingly centered on rhetoric, is not merely a question of language use; it covers and indicates a more basic choice between formal legalism — focusing on rational deduction from the law — and pragmatic judiciarism — focusing on reasonable debate in the court.

Legal Expert Systems: The Inadequacy of a Rule-Based Approach

The two different categories of legal AI system are described, and legal analysis systems are chosen as objects of study. So-called judgment machines are discussed, but it is decided that research in legal AI systems would be best carried-out in the area of legal expert systems. A model of legal reasoning is adopted, and two different methods of legal knowledge representation are examined: rule-based systems and case-based systems. It is argued that a rule-based approach to legal expert systems is inadequate given the requirements of lawyers and the nature of legal reasoning about cases. A new, eclectic approach is proposed, incorporating both rule-based and case-based knowledge representation. It is claimed that such an approach can form the basis of an effective and useful legal expert system.

Exploring legal tradition: psychoanalytical theory and Roman law in modern continental jurisprudence

The idea that psychoanalysis might be of use in the study oflaw and legal activity is by no means anything new. At the beginning of this century, the Russo-Polish jurist Leon Petrazycki proposed a theory of legal psychology, arguing that law, as an intuitively intelligible component of the human mental process, is in essence constituted by individual feelings of moral obligation and responsibility. Around the same time, psychoanalytical theory was beginning to make a slight impact on American and European jurisprudential thinking. This impact was to become all the more significant when, in the 1930s, Thurman Arnold and Jerome Frank presented arguments about the nature oflegal reasoning, and the roles of both academic lawyers and judges, which were very clearly founded upon broad interpretations of psychoanalytic ideas and concepts. In the continental tradition, Hans Kelsen, though in his early work drawing a distinction ‘between pure legal theory and psychological-sociological speculation,’ nevertheless attempted on occasion to conceive of the sovereignty of the state in Freudian psychoanalytic terms

The nature of legal reasoning: a commentary with special reference to Professor MacCormick's theory

‘Legal reasoning’ and its character have been under discussion for some time: the character, that is, of the reasoning which judges, advocates, solicitors, and others engaged in matters of legal practice and decision must pursue if their conclusions are to claim validity. Do they – or should they – reason on lines dictated by the laws of formal logic, i.e. deductively in the strict sense of that term? Or must we say that judges, and lawyers in general, cannot reach or justify conclusions on deductive lines, and that in fact – and quite legitimately – they use, in establishing and justifying conclusions, a mode of reasoning which is not deductive but has a quite different determinate character of its own? If so, what is that determinate character? Does it provide criteria whereby we may appriase legal argumentation in particular instances as valid or invalid or, at least, as rational or failing in rationality?

The nature of legal reasoning: a brief reply to Dr Wilson

Both Dr Wilson and Dr Patricia White in another review have made sound and telling criticisms of my efforts in Chapter 2 of Legal Reasoning and Legal Theory at translating legal argument into the technical forms of logic. At the time of writing the book, I was apprehensive about the likely resistance at least of lawyers and law-students to any excessive resort to technicalities of symbolism; it therefore seemed wise to simplify matters by ignoring differenees between propositional logic and the logic of predicates and of relations, thc latter being at least ostensibly the more complex and difficult, albeit more rigorously fitted to the subject matter. I hoped that my perhaps unduly cryptic footnote 5 on page 28 (noted by Dr Wilson at her footnote 29) was a sufficient acknowledgment of the technical difficulties which I was thus sweeping under the carpet. Like Dr White, but unlike Dr Wilson, I took the view that my main point about the deductive character of the arguments I had in view was unaffected by the technical infelicity from a logician's point of view of my resort to the symbolic forms of propositional logic.

What is Legal Logic?

That the question what is legal logic should still arise today appears paradoxical, for law is after all one of the oldest of human disciplines and logic has in the twentieth century become one of the most developed of the disciplines of contemporary philosophy. Yet comparison of a number of recent works dealing with the subject, all of which, not being without merit, have enjoyed a measure of success, is enough to show that the problem exists and is even strongly disputed.Of four such works, two—those by E. Levi and K. Engisch—do not use the word “logic” in their titles, though they deal with legal reasoning and legal thought. The other two, on the contrary, expressly purport to deal with legal logic. Strangely enough, however, their authors explicitly deny the specific existence of such a discipline, whereas Levi and Engisch underscore, without any hesitation, the specific nature of legal reasoning and the existence of a particular logic, legal logic.Thus in the first paragraph of his work, where Klug attempts to define the concept of legal logic, he states that it comprises the study of the rules of formal logic as used in the judicial application of rules of law (p. 6); that legal logic is therefore practical logic, consisting of the application to law of the rules of pure or theoretical logic which is general logic (p. 7).