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Journal articles on the topic 'Law and legal reasoning'

Author: Grafiati

Published: 4 June 2021

Last updated: 1 February 2022

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1

Hage, Jaap. "Legal Reasoning and Legal Integration." Maastricht Journal of European and Comparative Law 10, no. 1 (March 2003): 67–97. http://dx.doi.org/10.1177/1023263x0301000104.

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According to Legrand, harmonization of European private law by means of a European Civil Code would not work, because of the different legal cultures (mentalités) within which such a code would have to operate. In the civil law tradition, legal reasoning on the basis of such a code would be deductive in the sense of the application of rules that are posited prior to the cases to which they should be applied. In the common law tradition, the starting point of legal reasoning is in the cases themselves. As a consequence, common law reasoning would abstract less from the peculiarities of individual cases. The main point of this paper is that Legrand's picture of civil law reasoning is based on the subsumption model of rule application, which does not allow adaptation of the law to the needs of concrete cases other than through the limited possibilities of interpretation. It is argued that this picture is wrong. As an alternative, the reason-based model of rule application is proposed, which allows legal decision makers much more leeway to tailor the law to the needs of concrete cases. In a comparison with case-based reasoning it is argued that rule-based reasoning, according to the reason-based model, gives the decision maker the same leeway. The final conclusion is that possible differences in legal culture between the civil law and the common law tradition are not rooted in the distinction between rule-based reasoning and case-based reasoning, and are therefore merely contingent. There is no reason why the introduction of a European Civil Code could not overcome the differences between the two traditions. Whether this would be desirable is a different question.

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Atria, Fernando. "Legal Reasoning and Legal Theory Revisited." Law and Philosophy 18, no. 5 (September 1999): 537. http://dx.doi.org/10.2307/3505144.

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3

Lamond, Grant. "Legal Reasoning for Hedgehogs." Ratio Juris 30, no. 4 (November 22, 2017): 507–21. http://dx.doi.org/10.1111/raju.12181.

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4

Atkinson, Katie, and Trevor Bench-Capon. "Legal Case-based Reasoning as Practical Reasoning." Artificial Intelligence and Law 13, no. 1 (March 2005): 93–131. http://dx.doi.org/10.1007/s10506-006-9003-3.

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5

Goldman, Alan H. "Legal Reasoning as a Model for Moral Reasoning." Law and Philosophy 8, no. 1 (April 1989): 131. http://dx.doi.org/10.2307/3504633.

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6

Quevedo, Steven M. "Formalist and Instrumentalist Legal Reasoning and Legal Theory." California Law Review 73, no. 1 (January 1985): 119. http://dx.doi.org/10.2307/3480465.

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7

Canale, Damiano. "Comparative Reasoning in Legal Adjudication." Canadian Journal of Law & Jurisprudence 28, no. 1 (January 2015): 5–27. http://dx.doi.org/10.1017/cjlj.2015.15.

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This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

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8

Samuel, Geoffrey. "Can legal reasoning be demystified?" Legal Studies 29, no. 2 (June 2009): 181–210. http://dx.doi.org/10.1111/j.1748-121x.2009.00124.x.

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The purpose of this paper is to examine a new work on legal reasoning by two American jurists whose aim is to ‘demystify’ it. The paper will not dispute the authors' central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be argued that legal reasoning is not just reasoning from and about rules; it is also reasoning about facts and about the construction of factual situations. Consequently, it is vital for anyone wishing to have a serious understanding of how lawyers reason to have a familiarity with how social scientists, and indeed natural scientists, reason about fact. Such reasoning certainly involves induction, deduction and analogy but these methods are by no means adequate as an epistemological framework; schemes of intelligibility and paradigm orientations are equally important. If there is one paradigm orientation that is special to certain disciplines like theology and law, it is the authority paradigm, an orientation that must be distinguished from an inquiry paradigm. The problem with works by legal philosophers on legal reasoning is, it will be implied, that they are often conducted from within the authority paradigm and that this, in the end, prevents any demystification.

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PECZENIK, ALEKSANDER. "Legal Reasoning as a Special Case of Moral Reasoning." Ratio Juris 1, no. 2 (July 1988): 123–36. http://dx.doi.org/10.1111/j.1467-9337.1988.tb00009.x.

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10

Stovba, Oleksiy. "THE NORMATIVITY OF LAW: LEGAL-PHILOSOPHICAL REASONING." Social Legal Studio, no. 1 (August 2008): 11–16. http://dx.doi.org/10.32518/2617-4162-2018-1-11-16.

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11

Yoshino, Hajime, and Katsumi Nitta. "Special Issue on AI and Law." Journal of Advanced Computational Intelligence and Intelligent Informatics 1, no. 2 (December 20, 1997): 81–82. http://dx.doi.org/10.20965/jaciii.1997.p0081.

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Lawyers use a reasoning process known as legal reasoning to solve legal problems. Legal expert systems could potentially help lawyers solve legal problems more quick and adequately, enable students to study law at school or at home more easily, and help legal scholars and professionals analyze the law and legal systems more clearly and precisely.In 1992, Hajime Yoshino of Meiji Gakuin University started a “Legal Expert Systems” project. This “Legal Expert” project is funded by the Japanese Ministry of Education, Science and Culture and is scheduled to run from May 1992 to March 1998. Yoshino organized over 30 lawyers and computer scientists to clarify legal knowledge and develop legal expert systems.This project covers a wide range of technologies such as the analysis of legal knowledge, the analysis of legal rules on international trade (United Nations Convention on Contracts for International Sale of Goods (CISG)), legal knowledge representation, legal inference models, utility programs to develop legal knowledge bases, and user interfaces. This project, which ends in March 1998, will focus on developing comprehensive legal expert systems as the final product. In this issue, we present 12 papers written by “Legal Expert” project members.In this number, Hajime Yoshino gives are overview of the legal expert systems project, explaining its aims, objectives, and organization. Six papers that follow his introduction include three on case-based reasoning. Legal rules are given by ambiguous predicates, making it difficult sometimes to determine whether conditions for rules are satisfied by the facts given of an event. In such cases, lawyers often refer to old cases and generate hypotheses through analogical reasoning.Kaoru Hirota, Hajime Yoshino and Ming Qiang Xu apply fuzzy theory to case-based reasoning. A number of related systems have been developed, but most focus on qualitative similarities between old cases and the current case, and cannot measure quantitative similarities. Hirota et al. treat quantitative similarity by applying fuzzy theory, explaining their method using CISG examples.Ken Satoh developed a way to compute an interpretation of undefined propositions in a legal rule using adversarial case-based reasoning. He translated old cases giving possible interpretations for a proposition into clauses in abductive logic programming and introduced abducibles to reason dynamically about important factors in an old case to the interpretation suiting the user’s purpose.Yoshiaki Okubo and Makoto Haraguchi formalized a way of attacking legal argument. Assume that an opponent has constructed a legal argument by applying a statute with an analogical interpretation. From the viewpoint of legal stability, the same statue for similar cases should be applied with the same interpretation. We thereby create a hypothetical case similar to the case in question and examine whether the statue can be interpreted analogically. Such a hypothetically similar case is created with the help of a goal-dependent abstraction framework. If a precedent in which a statue has been applied to a case with a different interpretation – particularly complete interpretation – can be found, the opponent’s argument is attacked by pointing out the incoherence of its interpretation of the statue.Takashi Kanai and Susumu Kunifuji proposed a legal reasoning system using abductive logic programming that deals with ambiguities in described facts and exceptions not described in articles. They examined the problems to be solved to develop legal knowledge bases through abductive logic programming, e.g., how to select ambiguities to be treated in abductive reasoning, how to describe time relationships, and how to describe an exception in terms of the application of abductive logic programming to legal reasoning.Toshiko Wakaki, Ken Satoh, and Katsumi Nitta presented an approach of reasoning about dynamic preferences in the framework of circumscription based on logic programming. To treat dynamic preferences correctly is required in legal reasoning to handle metarules such as lex posterior. This has become a hotly discussed topic in legal reasoning and more general nonmonotic reasoning. Comparisons of their method, Brewka’s approach, and Prakken and Sartor’s approach are discussed.Hiroyuki Matsumoto proposed a general legal reasoning model and a way of describing legal knowledge systematically. He applied his method to Japanese Maritime Traffic Law.Six more papers are to be presented in the next number

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12

Nitta, Hajime Yoshinoand Katsumi. "AI and Law (2)." Journal of Advanced Computational Intelligence and Intelligent Informatics 2, no. 1 (February 20, 1998): 1. http://dx.doi.org/10.20965/jaciii.1998.p0001.

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In the last issue (Vol.1, No.2), we introduced the Legal Expert System (LES) project led by Hajime Yoshino of Meiji Gakuin University, presenting six papers on the LES project. Those papers were mainly related to higher order reasoning systems such as ase-based reasoning, abductive and inductive logic programming, nonmonotonic reasoning, and analogical reasoning. The objective of the LES project was to develop a legal expert system effective for use by lawyers, so the project covers inference mechanisms, analysis of legal knowledge, and user interfaces. In this second special issue on the LES project, we present five more papers, mainly related to the analysis of legal knowledge, legal knowledge representation language, and legal reasoning system user interfaces. Hajime Yoshino analyzes the logical structure of contract law. To develop a knowledge base for the United Nations Convention on Contracts for the International Sale of Goods (CISG), he proposes a clear logical model of the contract law system, which treats relations between events and legal status such as rights and obligations. Yoshino demonstrates that legal metarules are effective in constructing deductive legal reasoning systems, and are appropriate from the viewpoint of jurisprudence. Seiichiro Sakurai discusses the logical features of the legal knowledge representation language, CPF, developed by Hajime Yoshino. CPF is a logic programming language that enhances the representation of complex data structures. CPF is a convenient tool for representing legal knowledge, yet lawyers often attempt to describe nonexecutable forms of CPF rules.Sakurai introduces a way to construct an executable knowledge base from lawyers' CPF rules. Masato Shibasaki and Katsumi Nitta introduce a new framework to formalize nonmonotonic reasoning with dynamic priorities. The several frameworks proposed thus far to model relationships among arguments do not treat complex arguments, composed of strict rules and default rules. They show that the new framework represents such relationships and analyze these relationships for this framework and others. Takashi Miyata and Yuji Matsumoto introduce LES natural language generation using a user interface for lawyers rather than computer scientists. They describe a sentence generation system that translates logical forms provided from an inference engine into natural-language sentences, and present the unification grammar, generation algorithm and graphical debugging tool. To develop a knowledge base, the lawyers of the LES project analyze and represents the relationships between requirements (actions or events) and consequences (legal status) of legal rules in the form of logical flowcharts. Once the appropriateness of a flowchart is confirmed, they convert it to a CPF rule in their knowledge base. Koji Miyagi, Motoki Miura and Jiro Tanaka developed a flowchart editor that makes legal flowcharting easier. To make it easier to decide where to locate flowchart components and draw linens between the components, the editor possesses several algorithms.

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13

ALEXY, ROBERT. "Rights, Legal Reasoning and Rational Discourse." Ratio Juris 5, no. 2 (July 1992): 143–52. http://dx.doi.org/10.1111/j.1467-9337.1992.tb00121.x.

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14

RAZ, JOSEPH. "On the Autonomy of Legal Reasoning." Ratio Juris 6, no. 1 (March 1993): 1–15. http://dx.doi.org/10.1111/j.1467-9337.1993.tb00134.x.

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15

Askeland, Bjarte. "The Potential of Abductive Legal Reasoning." Ratio Juris 33, no. 1 (March 2020): 66–81. http://dx.doi.org/10.1111/raju.12268.

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16

Sartor, Giovanni. "Normative conflicts in legal reasoning." Artificial Intelligence and Law 1, no. 2-3 (1992): 209–35. http://dx.doi.org/10.1007/bf00114921.

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17

Rubin, Edward L., and Cass R. Sunstein. "Legal Reasoning, Legal Process and the Judiciary as an Institution." California Law Review 85, no. 1 (January 1997): 265. http://dx.doi.org/10.2307/3481015.

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18

Leiter, Brian. "Legal Indeterminacy." Legal Theory 1, no. 4 (December 1995): 481–92. http://dx.doi.org/10.1017/s1352325200000227.

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To say that the law is indeterminate is to say that the class of legal reasons (hereafter “the Class”) is indeterminate. The Class, in turn, consists of four components:1. Legitimate sources of law (e.g., statutes, constitutions, court decisions, social policy, morality);2. Legitimate interpretive operations that can be performed on the sources in order to generate rules of law (e.g., proper methods of interpreting statutes or prior cases or of reasoning about moral concepts as these figure in the sources);3. Legitimate interpretive operations that can be performed on the facts of record in order to generate facts of legal significance (e.g., proper ways of grouping and categorizing fact situations for purposes of legal analysis); and4. Legitimate rational operations that can be performed on facts and rules of law to finally yield particular decisions (e.g., deductive reasoning).

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19

Andresani, Gianluca, and Tony Ward. "Arguments and Stories in Legal Reasoning." Archiv fuer Rechts- und Sozialphilosophie 106, no. 1 (2020): 75. http://dx.doi.org/10.25162/arsp-2020-0006.

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20

Duff, Antony. "Legal reasoning, good citizens, and the criminal law." Jurisprudence 9, no. 1 (September 25, 2017): 120–31. http://dx.doi.org/10.1080/20403313.2017.1352320.

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21

Setiawan, Agus. "PENALARAN HUKUM YANG MAMPU MEWUJUDKAN TUJUAN HUKUM SECARA PROPORSIONAL." Jurnal Hukum Mimbar Justitia 3, no. 2 (December 30, 2017): 204. http://dx.doi.org/10.35194/jhmj.v3i2.257.

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On the activity of legal reasoning, legal objective embodiment in the form of: justice, legal certainty, and kemanfaaan sometimes not achieved proportionately or even forgot or did not understand that the purpose of law should be the third contained proportionally in any legal ruling. The third objective will be achieved proportionately, by finding the point of the link between the reasoning of the law with the purpose of the law, the law of nature and the methods used to achieve the third objective of the law.The research was carried out using the method of legal research is research that is interdisciplinary collaboration and integration of the disciplines of law and other disciplines, which in this case is a philosophy. This research is a study of the legal reasoning of how capable of realizing justice, legal certainty and benefit proportionately. Therefore the examined was how the point links between legal reasoning with the purpose of the law, as well as what is the meaning of the law (the ontological aspect) and what is the method to achieve it (epistemological aspect).Research proves that there is a link between the point of law raised by Gustav Radbruch, namely: justice, legal certainty, and the benefit with the aksiologis of models of legal reasoning advanced by Shidarta. With regard to the activity of the legal reasoning that is capable of realizing justice, legal certainty, and benefit proportionally; found that all the arguments of yuridik which is a legal ruling made by establishing practical law was supposed to interpret the law as positive norms within the system of legislation that pay attention to the principles of truth and justice universal or moral, the behavioral pattern of the terlembaga, and the symbolic meanings of social actors.Whereas the epistemological aspects of the law which is its method is deductive reasoning patterns doctrinal-in order to be empowered in order to achieve legal certainty and fairness as well as simultaneously using inductive reasoning patterns nondoktrinal-so are empowered to achieve benefit. The pattern of reasoning is identical with the model of thought problematic tersistematisasi. Keywords: Law, Proportional Reasoning, the purpose of the law.

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22

Afridi, Mehnaz M. "Islamic and Jewish Legal Reasoning." American Journal of Islam and Society 34, no. 1 (January 1, 2017): 131–33. http://dx.doi.org/10.35632/ajis.v34i1.869.

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This book comes at a very advantageous time, for interfaith encounters havebecome part of a larger conversation in academic and non-academic circles.Journals and conferences have added the dimension of how to understand the“other” and create dialogue in many innovative ways. Islamic and JewishLegal Reasoning: Encountering Our Legal Other is precisely the type of textand rigorous academic guide to lead us at a time when so many religious lawsare misunderstood – especially between Jews and Muslims.The authors ask some questions: “Can the traditions of Judaism and Islambe read together through a legal religious lens without always having a commonground?” and “Can dialogue precipitate a philosophical framework thatcan demonstrate self-critical thought and still be engaged with the ‘Other’?”More importantly, in each section ask the authors some core questions aboutreligion and law in order to show why the modern preoccupation with religiouslaw is so relevant. In addition, through their methodological legal analysis,they at times demonstrate why religious law is irrelevant. The scholarsfeatured this book are meticulous, thought-provoking, and timely in terms oftheir significant lines of questioning.The book is unique in its conception, for Anver M. Emon and the contributors’organic approach makes it more accessible and, at the same time, academicallyrigorous. The book emerged from workshops and was “developedfurther when Emon went to Cambridge University to join Gibbs and others inthe Scriptural Reasoning project, where scholars read the scriptural texts ofmultiple traditions with scholars from those different traditions” (p. xi). Scripturalreasoning allows one to read another’s scriptures in a way that allows forpersonal readings and reactions to one another’s sacred text, an approach thatallows for “recognizing their own otherness to their own respective traditions”(p. xxiii).Islamic and Jewish Legal Reasoning opens up deeply complex and glaringissues of interpretation, authority of interpretation, and the historical conditionsof reading sacred text, especially for religious law. In the first chapter,“Assuming Power: Judges, Imagined Authorities, and the Quotidian,” RumeeAhmed and Aryeh Cohen introduce us to this complex problem of authorityand complex phenomenon through legal schools of thought in both traditions.The question of God as authority is crucial, as the authors ask, almost in a ...

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23

Campbell, Tom, Scott Veitch, and William Lucy. "Moral Conflict and Legal Reasoning." University of Toronto Law Journal 51, no. 2 (2001): 185. http://dx.doi.org/10.2307/826041.

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24

BECK-DUDLEY, CARYN L., and EDWARD J. CONRY. "LEGAL REASONING AND PRACTICAL REASONABLENESS." American Business Law Journal 33, no. 1 (September 1995): 91–130. http://dx.doi.org/10.1111/j.1744-1714.1995.tb00261.x.

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25

Vila, Lluís, and Hajime Yoshino. "Time in automated legal reasoning." Information & Communications Technology Law 7, no. 3 (October 1998): 173–97. http://dx.doi.org/10.1080/13600834.1998.9965790.

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26

Basri, Basri. "Legal Reasoning Pattern Based On Trancendental Values : A Reflection on Legal Reasoning Based on Positivism Values." Journal of Transcendental Law 1, no. 1 (September 20, 2019): 58–70. http://dx.doi.org/10.23917/jtl.v1i1.8694.

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Purpose of the study: This article aims at finding out the pattern of legal penalties for transcendental valuesMethodology: This research is conducted using descriptive philosophical normative study methods. As a secondary legal material, this writing draws on literature, papers, journals, and research related to this writing.Main Findings: Positivism-based legal reasoning has failed to accommodate all the interests and legal needs of the community in realizing justice and prosperity. The pattern of legal reasoning based on transcendental values is a choice because it is related to the understanding that places the law for justice and public welfare.Applications of this study: This study can give benefit to thinkers in the field of legal studies thinking to make a breakthrough in the formation of new lawsNovelty/Originality of this study: The use of the basics of transcendental law can be made as a new breakthrough to realize a just and prosperous law

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27

Campbell, David, and James Devenney. "DAMAGES AT THE BORDERS OF LEGAL REASONING." Cambridge Law Journal 65, no. 1 (March 12, 2006): 208–25. http://dx.doi.org/10.1017/s0008197306007094.

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IN Borders (U.K.) Ltd. and others v. Commissioner of Police of the Metropolis and another, the Court of Appeal has, yet again, succumbed to the “temptation to do justice” by further extending to claimants a disgorgement remedy on the claimed authority of A.G. v. Blake (Jonathan Cape Ltd. Third Party). We say “claimed authority” because, yet again, the extension of the disgorgement remedy is impossible to justify using legal argument respectful of precedent, for such argument is subordinated to the direct “pursuit of the justice of the outcome” (para. [28]).

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28

LUCY, WILLIAM N. R. "Criticizing and Constructing Accounts of Legal Reasoning." Oxford Journal of Legal Studies 14, no. 3 (1994): 303–33. http://dx.doi.org/10.1093/ojls/14.3.303.

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Koszowski, Maciej. "Why Legal Reasoning has to be Unique." Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza 7 (September 15, 2017): 325–42. http://dx.doi.org/10.14746/ppuam.2017.7.20.

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This article addresses the issue of the uniqueness of legal reasoning and, specifically, the author advances the thesis that what makes legal reasoning different from the reasoning employed in demonstrative and empirical sciences and matters of everyday life is not the actual form (scheme) of this reasoning but the legal milieu. Thus, he tries to demonstrate that some features of law – such as its normative and prescriptive nature, difficulties with the verification of its content on empirical grounds, its limitations stemming from the physical world and dependence on humans and their minds, as well as the ‘unspecialized’ character of law agents and the extraordinary role of authority – influence legal reasoning as well. At the same time these features also allow this reasoning to be unique, despite its adoption of forms of inference that are present elsewhere.

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30

Peczenik, Aleksander. "Moral and Ontological Justification of Legal Reasoning." Law and Philosophy 4, no. 2 (August 1985): 289. http://dx.doi.org/10.2307/3504674.

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31

Urbina, Sebastián, and Sebastian Urbina. "Legal Reasoning and Formal Criteria of Recognition." Law and Philosophy 15, no. 1 (1996): 1. http://dx.doi.org/10.2307/3504810.

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Peczenik, Aleksander. "Moral and ontological justification of legal reasoning." Law and Philosophy 4, no. 2 (August 1985): 289–309. http://dx.doi.org/10.1007/bf00157092.

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Urbina, Sebasti�n. "Legal reasoning and formal criteria of recognition." Law and Philosophy 15, no. 1 (1996): 1–63. http://dx.doi.org/10.1007/bf00143971.

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Rofii, Ahmad. "WHITHER ISLAMIC LEGAL REASONING? The Law and Judicial Reasoning of The Religious Courts." JOURNAL OF INDONESIAN ISLAM 8, no. 2 (December 1, 2014): 235. http://dx.doi.org/10.15642/jiis.2014.8.2.235-262.

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35

Parunova, Yu D. "Evaluation Concepts in Legal Reasoning." IZVESTIYA VUZOV SEVERO-KAVKAZSKII REGION SOCIAL SCIENCE, no. 3 (207) (October 19, 2020): 12–17. http://dx.doi.org/10.18522/2687-0770-2020-3-12-17.

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The article considers the place, role and limits of use of evaluation concepts in legal reasoning. In this context the notion of legal reasoning has been defined, the main definitions of evaluation concepts accepted in logic and jurisprudence have been reviewed. The features of evaluation concepts have been identified. Evaluation concepts have an open logical structure, offer some latitude to the enforcer in legal interpretation, give legal reasoning flexibility and dynamism. The attributes of evaluation concepts such as subjective nature have been noted, this property often communicates ambiguity and vagueness to legal rules. Therefore, the use of evaluation concepts in legal reasoning is a process requiring particular professionalism. Some ways have been suggested to help to use correctly evaluation concepts in legal reasoning. They include reliance on common values, identification of formal concepts to which the evaluation concept relates, developing a logical culture among law enforcement professionals, raising the general level of legal awareness.

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36

Jolowicz, J. A. "Autrefois Acquit—Legal Reasoning and the Just Result." Cambridge Law Journal 48, no. 3 (November 1989): 388–90. http://dx.doi.org/10.1017/s0008197300109705.

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37

NIEMI, MATTI ILMARI. "Form and Substance in Legal Reasoning: Two Conceptions." Ratio Juris 23, no. 4 (November 14, 2010): 479–92. http://dx.doi.org/10.1111/j.1467-9337.2010.00466.x.

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38

Konstantinou, Vassilis, John Sykes, and Georgios N. Yannopoulos. "Legal reasoning methodology: The missing link." Information & Communications Technology Law 3, no. 1 (January 1994): 29–46. http://dx.doi.org/10.1080/13600834.1994.9965690.

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39

Feres, Marcos Vinício Chein. "Law as Integrity and Law as Identity: Legal Reasoning, State Intervention, and Public Policies." German Law Journal 14, no. 8 (August 1, 2013): 1147–62. http://dx.doi.org/10.1017/s2071832200002194.

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Taking both ordinary regulations and constitutional principles in account, is state intervention in the market through public policies legitimate? The legitimate use of public policies, as far as state intervention is concerned, will be analyzed taking into consideration legal procedures and the necessary legal interpretation. Methodologically, the theoretical object of this research is to conciliate the idea of law as integrity, developed by Dworkin, with the idea of law as identity, complemented by Taylor's idea of identity and Bankowski's idea of living lawfully. In fact, the methodological approach consists of reconstructing a system of analytical concepts based on a moral reading of legal rules and constitutional principles rooted within contemporary legal theory. The final object is to figure out new means of interpreting legal economic regulations and finding new ground for the legitimate evaluation of public policies.

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40

Lu, Nan, and Chuanyou Yuan. "Legal reasoning: a textual perspective on common law judicial opinions and Chinese judgments." Text & Talk 41, no. 1 (January 1, 2021): 71–93. http://dx.doi.org/10.1515/text-2020-2084.

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Abstract The issue of legal reasoning has been addressed widely in legal academia and practice, but rarely considered by linguists. This paper, employing the Systemic Functional Linguistics (SFL) genre perspective and the discourse semantics system as its conceptual framework, attempts to reveal the different ways of legal reasoning of common law judicial opinions and Chinese judgments from a textual perspective. One judicial opinion of a British case and one judgment of a Chinese case are explored for comparison. The findings suggest that Chinese judgments as a legal genre, compared with its counterpart of common law judicial opinions, unfold not in waves construed by multilayered Theme-and-New structure, but in chunks establishing no prediction or consolidation. We argue that this mode of text unfolding in waves is vitally important for readers to follow the judge’s reasoning and construct a sense of fairness and justice. We suggest that the periodicity and the generic structure of common law judicial opinions would be a valuable frame of reference for the Chinese judicial reform on judgments in improving its legal reasoning.

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Gorlée, Dinda L. "Hints and guesses: Legal modes of semio-logical reasoning." Sign Systems Studies 33, no. 2 (December 31, 2005): 239–72. http://dx.doi.org/10.12697/sss.2005.33.2.01.

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Legal semiotics is an internationally proliferated subfield of general semiotics. The three-step principles of Peirce’s semiotic logic are the three leading categories: firstness, secondness and thirdness, grounded on the reverse principles of logic: deduction, induction and — Peirce’s discovery — abduction. Neither induction nor abduction can provide a weaker truth claim than deduction. Abduction occurs in intuitive conclusions regarding the possibility of backward reasoning, contrary to the system of law. Civil-law cultures possess an abstract deductive orientation, governed by the rigidity of previous written law, whereas the actual fragility of a common-law system with cases and precedents inclines to induction, orienting its habituality (habits) in moral time and space. Customary law gives credit to abductive values: relevant sentiments, beliefs and propositions are upgraded to valid reasoning. The decision-making by U.S. case law and English common-law is characterized as decision law with abductive undertones.

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Samuel, Geoffrey. "The challenge of artificial intelligence: can Roman law help us discover whether law is a system of rules?" Legal Studies 11, no. 1 (March 1991): 24–46. http://dx.doi.org/10.1111/j.1748-121x.1991.tb00621.x.

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It may or may not be possible to develop an Artificial Intelligence model of legal reasoning that accurately reflects the processes of the legal mind, but one positive result that could well emerge from all the research into such modelling is a fundamental reassessment of legal theory. The paradigm that legal reasoning is essentially a rule based activity may well have to be discarded in favour of an epistemological model that is very much more complex, in the systems sense of this term, than the hierarchical structure traditionally associated with jurists since the Enlightenment (if not since the Byzantines) and represented in one of its most perfect theoretical forms today in Kelsen's model. It is the purpose of this paper to examine, if only briefly, this challenge to conventional legal theory (Part I) and, using systems theory, historical jurisprudence and Justinian's Digest (Part II), to suggest an alternative epistemological model (Part III).

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Campo, Alessandro. "Metaphorical Use of Algorithm in Legal Reasoning." International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 33, no. 4 (September 19, 2020): 1187–97. http://dx.doi.org/10.1007/s11196-020-09777-8.

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AbstractThe current use of big data in the legal framework suggests the idea of algorithm as a new topos of the legal rhetoric. Indeed, in addition to the “rhetoric of algorithm”, an “algorithm of rhetoric” may also exist, in strict connection with an anthropological structure. Even leaving aside its epistemic value, the algorithm is in fact always experienced by the jurist through a metaphorical process, in a very similar way, for instance, to the metaphorical use of graphs in economics (McCloskey). That said, the reasoning about big data is metaphorical as well, and this allows us to believe that there is still a role for pathos and ethos within the legal reasoning. Moreover, and most importantly, the ideal to which the data-based knowledge (the so called dataism) aims—that is, the pretension of being able to map all that there is to know—is metaphorical, too. In this paper I will discuss algorithms and big data in the guise of new topoi. The aim of this paper is therefore to imagine a philosophical-juridical semiotic by means of which it is possible to highlight the persistent difference between reasonableness and reason in the judge’s work. Vis-à-vis algorithms and big data, as well as the rules of law, the judge does not act as bouche de la loi, but rather practices a reason which is irreducibly rhetoric and related to the humanities.

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Hardjaloka, Loura. "Legal Reasoning Pada Perkara Pengujian Undang-Undang (Studi Perbandingan)." Jurnal Konstitusi 12, no. 1 (May 20, 2016): 94. http://dx.doi.org/10.31078/jk1216.

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Article 24 C of Third Amendment of Constitution Law 1945 is the basis of the Constitutional Court to give the final and binding decision in terms of law examination against Constitution Law 1945. Constitutional Court has a restriction to not examine the nebis in idem case unless there is a different substance of Constitutional Law 1945 which is used as the based of examination. In this paper, there are 12 (twelve) Constitutional Court’s decisions on law re-examination against the Constitutional Law 1945 because using different substance of Constitutional Law 1945 as the based of examination. Based on the research, which has been conducted, there are legal reasoning differences in accepting and deciding the cases which have been decided previously which the Court uses different legal interpretation and construction in deciding the case. Thus, this paper will examine and compare legal reasoning methods which are used in deciding the case.

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Cantisano, Pedro Jimenez, and Mariana Armond Dias Paes. "Legal Reasoning in a Slave Society (Brazil, 1860–88)." Law and History Review 36, no. 3 (August 2018): 471–510. http://dx.doi.org/10.1017/s0738248018000196.

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AbstractThis article analyses arguments used in an 1866 Brazilian freedom suit to highlight a substantive legal perspective. Historians of Brazilian slavery law have given attention to the politics of freedom suits, largely disregarding the role of law in their origins, developments, and outcomes. By looking at legal arguments, we show how law and political views mutually framed each other. We focus on the impact of 19th century legal modernizations in the distinction and contradictions between the law of status and property law, the legal translations of freedom, and the uses of arguments based on codes, natural law, and pragmatic considerations about the judiciary's role in a slave society. This is a micro-history of a suit that, with the help of other 19th-century freedom suits and legal doctrine, allows us to move up and down different historical scales to understand law's centrality in the political perpetuation and demise of slavery in Brazil.

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Mackuvienė, Eglė. "Loginis metodas teisėje: sampratos problema." Teisė 77 (January 1, 2010): 126–45. http://dx.doi.org/10.15388/teise.2010.0.196.

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Straipsnyje aptariamas vienas iš teisinio samprotavimo metodų – loginis metodas. Siekiama apibūdinti šį metodą, atskleisti, kokį turinį jam suteikia teisės diskurso dalyviai, atkreipti dėmesį į loginio metodo sampratos nevienareikšmiškumą. Vieni teisės diskurso dalyviai nurodo, kad savo poziciją grindžia teisine logika, vadovaujasi loginiu teisės aiškinimo metodu, kiti kritikuoja loginio metodo taikymą teisėje, tačiau paprastai nedetalizuoja, ką turi omenyje vartodami logikos, loginio metodo terminus. Kol aiškiai nepasakoma, ar logika teisėje, teisinio samprotavimo logika reiškia bendrąjį nuoseklumą ir neprieštaringumą, ar specialų, tik teisiniam diskursui būdingą samprotavimo būdą, bei neapibrėžiama, kada logika yra teisinio samprotavimo ir pačios teisės tyrimo metodas, o kada – tik taikytinas veikimo, tikslo siekimo būdas, tol teigimas, kad sprendimas priimtas vadovaujantis loginiu metodu, iškelia daugiau klausimų nei pateikia atsakymų. The logical method, as one of the methods of legal reasoning, is analyzed in the article. The purpose is to describe the method, to investigate what meaning participants of legal discourse ascribes to this term, to point out to the variety of possible meanings and understandings of logic in the law. Participants of legal discourse are used to point out that their arguments are supported by legal logic or they use the logical method during the interpretation of law, others attack, criticize the use of logic in the law and legal reasoning. Although they usually do not elaborate what they mean by definitions „legal logic“ and „legal method“. When it is not said clearly if logic in the law and legal reasoning means either general consistency and proper rules of inference or specific methodology, suitable only for legal reasoning, when it is not detalized if logic is either method for research or method for action, then assertion that decision is made by using legal method brings more questions than presents answers.

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de Oliveira Costa, Rafael. "Towards a Metatheoretical Postmodern Approach to Legal Reasoning." ATHENS JOURNAL OF LAW 7, no. 1 (December 31, 2020): 91–104. http://dx.doi.org/10.30958/ajl.7-1-5.

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This paper focuses on legal reasoning, arguing that although methodological theories are important, they are not enough to explain how to reason in law. In fact, because the different philosophical perspectives vary so significantly in their ability to resolve legal conflicts, when a less “adapted” perspective decides a legal question, the results can be disastrous. Thus, this paper inaugurates a new attitude, stating that a general philosophical perspective is the only way out. Relying on a metatheoretical postmodern approach, it argues that logic, analysis, argumentation and hermeneutics are complementary theories that offer a unique perception of law. It concludes that the approach proposed makes possible not only a comprehensive view of the way legal reasoning behaves, but more than this, a proportionate flexibility to both civil and common law systems. Keywords: Paraconsistent Logic; Metatheoretical Postmodern Approach; Metatheoretical Perspective; Paraconsistent Deontic Logic; Ontological Hermeneutics

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Detmold, M. J. "Law as Practical Reason." Cambridge Law Journal 48, no. 3 (November 1989): 436–71. http://dx.doi.org/10.1017/s0008197300109730.

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Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

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Perez, Oren. "Fuzzy Law: A Theory of Quasi-Legal Systems." Canadian Journal of Law & Jurisprudence 28, no. 2 (July 2015): 343–70. http://dx.doi.org/10.1017/cjlj.2015.31.

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Our lives are permeated by various forms of legality, produced by multiple bodies - both statist and non-statist. The pervasive presence of non-statist, soft law schemes in the contemporary society poses a challenge for legal theory: how to conceptualize legal-like structures that evolve outside the boundaries of the state and are able nonetheless to exert significant normative power? Understanding this phenomenon requires, I argue, a new model of law that will not be bounded by the binary (either/or) structure of traditional jurisprudence and sociology of law. I respond to this challenge by developing a degree-theoretic model of legal-normativity which I term "fuzzy law". This model offers a new conceptual vocabulary for thinking about soft law as a social phenomenon. The model draws on three main theoretical sources: the theory of complementary pairs, fuzzy-set theory, and defeasible reasoning. I examine the jurisprudential and sociological implications of the fuzzy law model through a discussion of the dialectics of reasoning with fuzzy rules and an exploration of the coordination dynamics of quasi-legal systems.

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Prasetyo, Yogi. "Legal Truth (Menakar Kebenaran Hukum)." Legal Standing : Jurnal Ilmu Hukum 1, no. 1 (August 2, 2017): 89. http://dx.doi.org/10.24269/ls.v1i1.588.

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Law as part of human knowledge have various views on the truth. The legal truth is more likely to be assessed according to the perception and point of view of each one, the truth of the law will be assessed in accordance with the standards of the existing measures on him. Not infrequently respective claims to truth are obtained, causing antagonism and conflict. For that we would need to measure the truth of the law into a theorization. Legal correspondence theory of truth to understand the truth as empirical reality sensory contained in the community, to get this truth by the method of inductive reasoning, which draw conclusions from the events that are specific to the incidence of common law. The coherence theory of truth to understand the law as a result of conceptual ideas of rational logic of human reason, to obtain this truth by the method of deductive reasoning, which draw conclusions from the events that are common to a special legal events. While the pragmatic theory of truth law basing the truth if it can provide benefits for humans.

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