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Journal articles on the topic 'Legal reasoning'

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Published: 4 June 2021
Last updated: 11 March 2023

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1

Miller, Bruce L. "Legal Reasoning." Teaching Philosophy 8, no. 2 (1985): 167–69. http://dx.doi.org/10.5840/teachphil19858242.

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2

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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3

Samuel, Geoffrey. "Is legal reasoning like medical reasoning?" Legal Studies 35, no. 2 (June 2015): 323–47. http://dx.doi.org/10.1111/lest.12063.

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In this paper, stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. It will be argued that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.
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4

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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5

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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6

Juanda, Enju. "PENALARAN HUKUM (LEGAL REASONING." Jurnal Ilmiah Galuh Justisi 5, no. 1 (June 6, 2017): 157. http://dx.doi.org/10.25157/jigj.v5i1.316.

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Advokat harus mempunyai kemampuan dalam Penalaran Hukum (Legal Reasoning) yang baik, agar dalam melaksanakan layanan hukum tersebut dapat memberikan argumentasi atau alasan hukum yang baik dan jelas. Legal Reasoning adalah pencarian “reason” tentang hukum atau pencarian dasar tentang bagaimana seorang hakim memutuskan suatu perkara/kasus hukum yang dihadapinya, bagaimana seorang Advokat memberikan argumentasi hukum dan bagaimana seorang ahli hukum menalar hukum. Legal Reasoning harus memahami sumber-sumber- sumber hukum formil, yaitu undang-undang, kebiasaan dan adat, perjanjian, traktat, yurisprudensi tetap dan doktrin. Sumber Hukum Utama dalam Hukum Positif Indonesia adalah Peraturan Perundang-undangan (Hukum Tertulis), akan tetapi seringkali Peraturan Perundang-undangan (Hukum Tertulis) tertinggal oleh perkembangan masyarakat. Untuk mengisi kekosongan Peraturan Perundang-undangan (Hukum Tertulis) dan pencarian dari arti dan makna dari suatu peraturan perundangan-undangan, dalam ilmu hukum dikenal dengan Konstruksi Hukum dan Interpretasi (Penafsiran Hukum). Konstruksi terdiri dari 3 (tiga) bentuk yaitu Analogi (Abstraksi), Determinasi (Penghalusan Hukum) dan Argumentum A Contrario.
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7

Tiaglo, O. V. "Logic of Legal Reasoning." Analytical and Comparative Jurisprudence, no. 2 (July 24, 2022): 349–53. http://dx.doi.org/10.24144/2788-6018.2022.02.65.

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This article deals with general problem of connection between legal reasoning, legal argumentation and, on the other hand, logic. Although this connection seems obvious since ancient times, its nature is still the subject of non-trivial discussions. The purpose of my study is to explore one important aspect of this connection, namely, is general, or formal, logic necessary and sufficient to determine relevant form of legal reasoning and argumentation? To reach this purpose, method of comparative analysis is employed both synchronically and diachronically. First, in order to prove importance of the issue, a diachronic comparison of several basic approaches is carried out (G.W. von Leibniz, O.W. Holmes, Jr., etc.). Then a comparative analysis of the views of some contemporary experts is carried out, especially Ilmar Tammelo and Stephen Toulmin. It is argued, in the field of law there is a special legal validity that differs significantly from the formal-logical validity. The legal validity is determined directly and mainly by the value of the right not by the value of formal or material truth. It is not the subject of formal logic, but of a special legal logic and, more broadly, informal logic. Therefore, formal logic does not determine relevant form of legal reasoning and argumentation, since, first of all, there is the essential difference between the formal-logical validity and the legal validity. It is argued, formal logic is neither sufficient nor necessary to think like a jurist. In this regard, it is shown that the formal-logical standard of proof is not sufficient to determine the relevant form of valid legal proof. There are at least three standards of legal proof – proof without reasonable doubt, proof by clear and convincing evidence, and proof by preponderance of the evidence. Each of them differs significantly from the formal-logical standard. The conclusion of this research is this: it cannot be said that general logic does not work at all in the field of law. However, in order to reason and argue like a successful jurist, one must to grasp and use, without any exceptions, the special legal logic that belongs to the domain of contemporary informal logic.
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8

Yang, Grace Soyun. "Narrative in Legal Reasoning." Justice 177 (April 30, 2020): 381–410. http://dx.doi.org/10.29305/tj.2020.04.177.381.

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9

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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10

Bradley, Gerard V. "Morality and Legal Reasoning." Review of Politics 55, no. 2 (1993): 311–30. http://dx.doi.org/10.1017/s003467050001740x.

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11

Shecaira, Fábio P. "Gardner on Legal Reasoning." Law and Philosophy 33, no. 6 (March 22, 2014): 747–72. http://dx.doi.org/10.1007/s10982-014-9206-9.

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12

Oza, Manish. "Fictions in Legal Reasoning." Dialogue 61, no. 3 (December 2022): 451–63. http://dx.doi.org/10.1017/s0012217322000312.

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AbstractA legal fiction is a knowingly false assumption that is given effect in a legal proceeding and that participants are not permitted to disprove. I offer a semantic pretence theory that shows how fiction-involving legal reasoning works.
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13

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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14

Spaak, Torben. "Legal philosophy and the study of legal reasoning." Anali Pravnog fakulteta u Beogradu 69, no. 4 (December 20, 2021): 795–811. http://dx.doi.org/10.51204/anali_pfbu_21405a.

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In this paper, I argue that legal philosophers ought to focus more on problems of legal reasoning. This is a field with many philosophically interesting questions to consider, but also, a field in which legal philosophers can contribute the most to the study and the practice of law. Neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the relevance of the theory of reasons holism to legal reasoning. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, inductive arguments, or both, and if so how.
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15

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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16

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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17

Kelbley, Charles. "Legal Reasoning and Political Conflict." International Philosophical Quarterly 37, no. 4 (1997): 475–77. http://dx.doi.org/10.5840/ipq199737447.

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18

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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19

Ződi, Zsolt. "Algorithmic explainability and legal reasoning." Theory and Practice of Legislation 10, no. 1 (January 2, 2022): 67–92. http://dx.doi.org/10.1080/20508840.2022.2033945.

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20

Gazzo Castañeda, Lupita Estefania, and Markus Knauff. "Defeasible reasoning with legal conditionals." Memory & Cognition 44, no. 3 (December 21, 2015): 499–517. http://dx.doi.org/10.3758/s13421-015-0574-7.

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21

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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22

Anderson, Bruce. "Current Views on Legal Reasoning." Method 15, no. 2 (1997): 151–68. http://dx.doi.org/10.5840/method19971523.

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23

Coendet, Thomas. "Legal Reasoning: Arguments from Comparison." Archiv für Rechts- und Sozialphilosophie 102, no. 4 (2016): 476–507. http://dx.doi.org/10.25162/arsp-2016-0023.

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24

Rotenberg, Ken, and Mike Hurlbert. "Legal Reasoning and Jury Deliberations." Journal of Social Psychology 132, no. 4 (August 1, 1992): 543–44. http://dx.doi.org/10.1080/00224545.1992.9924734.

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25

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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26

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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27

SNEYERS, JON, DANNY DE SCHREYE, and THOM FRÜHWIRTH. "Probabilistic legal reasoning in CHRiSM." Theory and Practice of Logic Programming 13, no. 4-5 (July 2013): 769–81. http://dx.doi.org/10.1017/s1471068413000483.

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AbstractRiveret et al. have proposed a framework for probabilistic legal reasoning. Their goal is to determine the chance of winning a court case, given the probabilities of the judge accepting certain claimed facts and legal rules.In this paper we tackle the same problem by defining and implementing a new formalism, called probabilistic argumentation logic, which can be seen as a probabilistic generalization of Nute's defeasible logic. Not only does this provide an automation of the — only hand-performed — computations in Riveret et al, it also provides a solution to one of their open problems: a method to determine the initial probabilities from a given body of precedents.
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28

Soeteman, A. "Formal aspects of Legal reasoning." Argumentation 9, no. 5 (December 1995): 731–46. http://dx.doi.org/10.1007/bf00744753.

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29

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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30

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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31

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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32

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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33

Mefford, Dwain. "Case-based reasoning, legal reasoning, and the study of politics." Political Behavior 12, no. 2 (June 1990): 125–58. http://dx.doi.org/10.1007/bf00992466.

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34

Yoshino, Hajime. ""Legal Expert" Project." Journal of Advanced Computational Intelligence and Intelligent Informatics 1, no. 2 (December 20, 1997): 83–85. http://dx.doi.org/10.20965/jaciii.1997.p0083.

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Since 1992, about 30 Japanese lawyers and computer scientists have been intensively engaged in a project of systematizing and computerizing legal reasoning. This project is the Study of Development of a Legal Expert System - Exploration of Legal Knowledge Structure and Implementation of Legal Reasoning or, in short, the "Legal Expert" Project. In this paper, I would like to introduce the Legal Expert project, explaining the goals, study organizations and their tasks in constructing legal expert systems in Japan.
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35

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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36

Kong, Doohyun. "Abduction and Plausibility in Legal Reasoning." Justice 173 (August 31, 2019): 358–402. http://dx.doi.org/10.29305/tj.2019.08.173.358.

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37

Lode, Eric. "Slippery Slope Arguments and Legal Reasoning." California Law Review 87, no. 6 (December 1999): 1469. http://dx.doi.org/10.2307/3481050.

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38

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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39

ZEITZ, ERICH. "Legal Reasoning and Medical Decision Making." Academic Emergency Medicine 5, no. 8 (August 1998): 755–57. http://dx.doi.org/10.1111/j.1553-2712.1998.tb02500.x.

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40

Gastwirth, Joseph L. "Statistical Reasoning in the Legal Setting." American Statistician 46, no. 1 (February 1992): 55. http://dx.doi.org/10.2307/2684414.

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41

Strauber, Ira. "Legal reasoning and practical political education." Social Epistemology 5, no. 1 (January 1991): 38–43. http://dx.doi.org/10.1080/02691729108578596.

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42

McBride, Mark. "Raz, Practical Inferences, Promising, Legal Reasoning." Ratio Juris 28, no. 2 (May 22, 2015): 286–92. http://dx.doi.org/10.1111/raju.12082.

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43

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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44

Dalcourt, G. J. "Finnis and Legal Language and Reasoning." American Journal of Jurisprudence 40, no. 1 (January 1, 1995): 49–69. http://dx.doi.org/10.1093/ajj/40.1.49.

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45

Teitelbaum, J. C. "Analogical Legal Reasoning: Theory and Evidence." American Law and Economics Review 17, no. 1 (June 27, 2014): 160–91. http://dx.doi.org/10.1093/aler/ahu011.

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46

Gastwirth, Joseph L. "Statistical Reasoning in the Legal Setting." American Statistician 46, no. 1 (February 1992): 55–69. http://dx.doi.org/10.1080/00031305.1992.10475851.

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47

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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48

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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49

Meadow, William, and John D. Lantos. "Expert Testimony, Legal Reasoning, and Justice." Clinics in Perinatology 23, no. 3 (September 1996): 583–95. http://dx.doi.org/10.1016/s0095-5108(18)30230-6.

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50

Kanai, Takashi, and Susumu Kunifuji. "Legal Reasoning Using Abductive Logic Programming." Journal of Advanced Computational Intelligence and Intelligent Informatics 1, no. 2 (December 20, 1997): 114–20. http://dx.doi.org/10.20965/jaciii.1997.p0114.

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In this paper, we propose a new legal reasoning system using abductive logic programming (ALP). The system can deal with ambiguities of described facts and exceptions which is not described in relevant articles. In addition, the goal, queried to a legal reasoning system, differs in compliance with whether the user is a plaintiff or defendant. In usual deductive legal reasoning systems, there are two major problems in treating legal arguments. One is that legal facts usually have ambiguities, and the other is that two conflicting conclusions must be derived from one knowledge base, depending on whether a plaintiff of defendant is involved. To overcome these difficulties, abductive logic programming is used in our legal reasoning system, which can deal with implicit exceptions and generate presumptions according to the user’s needs.
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