On Law And Legal Reasoning

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Objectivity in Law and Legal Reasoning

Objectivity in Law and Legal Reasoning Pdf/ePub eBook Author:
Editor: Bloomsbury Publishing
ISBN: 1782250689
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Objectivity in Law and Legal Reasoning by Summary

Legal theorists consider their discipline as an objective endeavour in line with other fields of science. Objectivity in science is generally regarded as a fundamental condition, informing how science should be practised and how truths may be found. Objective scientists venture to uncover empirical truths about the world and ought to eliminate personal biases, prior commitments and emotional involvement. However, legal theorists are inevitably bound up with a given legal culture. Consequently, their scholarly work derives at least in part from this environment and their subtle interaction with it. This book questions critically, in novel ways and from various perspectives, the possibilities of objectivity of legal theory in the twenty-first century. It transpires that legal theory is unavoidably confronted with varying conceptions of law, underlying ideologies, approaches to legal method, argumentation and discourse etc, which limit the possibilities of 'objectivity' in law and in legal reasoning. The authors of this book reveal some of these underlying notions and discuss their consequences for legal theory.

Virtue, Emotion and Imagination in Law and Legal Reasoning

Virtue, Emotion and Imagination in Law and Legal Reasoning Pdf/ePub eBook Author: Amalia Amaya,Maksymilian Del Mar
Editor: Bloomsbury Publishing
ISBN: 1509925147
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Virtue, Emotion and Imagination in Law and Legal Reasoning by Amalia Amaya,Maksymilian Del Mar Summary

What is the role and value of virtue, emotion and imagination in law and legal reasoning? These new essays, by leading scholars of both law and philosophy, offer striking and exploratory answers to this neglected question. The collection takes a holistic approach, inquiring as to the connections and relations between virtue, emotion and imagination. In addition to the principal focus on adjudication, essays in the collection also engage with a variety of different legal, political and moral contexts: eg criminal law sentencing, the Black Lives Matter movement and professional ethics. A number of different areas of the law are addressed (eg criminal law, constitutional law and tort law) and the issues explored include: the benefits and limits of empathy in legal reasoning; the role of attention and perception in judicial reasoning;, the identification of judicial virtues (such as compassion and humility) and judicial vices (such as callousness and partiality); the values and dangers of certain imaginative devices (eg personification); and the interactive and social dimensions of virtue, emotion and imagination.

An Introduction to Law and Legal Reasoning

An Introduction to Law and Legal Reasoning Pdf/ePub eBook Author: Steven J. Burton
Editor: Wolters Kluwer
ISBN: 1454822635
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An Introduction to Law and Legal Reasoning by Steven J. Burton Summary

Now in its Third Edition, An Introduction to Law and Legal Reasoning continues to be the ideal go-to for the first year law student. It is a short, practical book that introduces beginning law students and others to contemporary law and legal reasoning. By presenting these topics through various discussions of cases and examples, it provides students with a solid source to reference for years to come. A dependable, practical source, that: Covers analogical and deductive reasoning, as well as the roles of legal conventions, purposes, and policies in legal reasoning Discusses cases of varying difficulty to diversify the learning process Presents law and legal reasoning primarily through discussions of cases and examples that avoid the abstraction characteristic of most competing books Emphasizes the law as used in practice by lawyers and judges Provides an explicit and systematic introduction to law and legal reasoning Offers a source suitable for use as supplementary reading in any first year course, in legal research and writing courses, in paralegal courses, and in other settings This great new edition has been carefully updated to include: A new chapter, "Hardest Cases," that highlights cases notorious in the press Updates throughout that guarantee the most current legal information

Economics in Legal Reasoning

Economics in Legal Reasoning Pdf/ePub eBook Author: Péter Cserne,Fabrizio Esposito
Editor: Springer Nature
ISBN: 3030401685
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Economics in Legal Reasoning by Péter Cserne,Fabrizio Esposito Summary

This Palgrave Pivot is the first book in the field of Law & Economics looking at the relationship between economics and law in legal reasoning. The book constitutes a reference point for the economic analysis of legal institutions, as legal reasoning remains the dimension of legal systems least explored by economists. Despite their differences, economics and legal reasoning interact in many interesting ways. This book offers a fast track to these interactions. Both supporters and critics of Law & Economics will be exposed to a yet-to-be developed area of interaction between the disciplines. This book will be of interest to economists, legal scholars, and Law and Economics specialists, and can be used as teaching material in courses on Law & Economics and legal reasoning as well.

Legal Reasoning and Legal Theory

Legal Reasoning and Legal Theory Pdf/ePub eBook Author: Neil MacCormick
Editor: Clarendon Press
ISBN: 0191018597
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Legal Reasoning and Legal Theory by Neil MacCormick Summary

What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are thoroughly and critically examined in Legal Reasoning and Legal Theory, now with a new and up-to-date foreword. Its clarity of explanation and argument make this classic legal text readily accessible to lawyers, philosophers, and any general reader interested in legal processes, human reasoning, or practical logic.

Handbook of Legal Reasoning and Argumentation

Handbook of Legal Reasoning and Argumentation Pdf/ePub eBook Author: Giorgio Bongiovanni,Gerald Postema,Antonino Rotolo,Giovanni Sartor,Chiara Valentini,Douglas Walton
Editor: Springer
ISBN: 9048194520
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Handbook of Legal Reasoning and Argumentation by Giorgio Bongiovanni,Gerald Postema,Antonino Rotolo,Giovanni Sartor,Chiara Valentini,Douglas Walton Summary

This handbook addresses legal reasoning and argumentation from a logical, philosophical and legal perspective. The main forms of legal reasoning and argumentation are covered in an exhaustive and critical fashion, and are analysed in connection with more general types (and problems) of reasoning. Accordingly, the subject matter of the handbook divides in three parts. The first one introduces and discusses the basic concepts of practical reasoning. The second one discusses the general structures and procedures of reasoning and argumentation that are relevant to legal discourse. The third one looks at their instantiations and developments of these aspects of argumentation as they are put to work in the law, in different areas and applications of legal reasoning.

Rhetoric and The Rule of Law

Rhetoric and The Rule of Law Pdf/ePub eBook Author: Neil MacCormick
Editor: OUP Oxford
ISBN: 0191018783
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Rhetoric and The Rule of Law by Neil MacCormick Summary

Is legal reasoning rationally persuasive, working within a discernible structure and using recognisable kinds of arguments? Does it belong to rhetoric in this sense, or to the domain of the merely 'rhetorical' in an adversative sense? Is there any reasonable certainty about legal outcomes in dispute-situations? If not, what becomes of the Rule of Law? Neil MacCormick's book tackles these questions in establishing an overall theory of legal reasoning which shows the essential part 'legal syllogism' plays in reasoning aimed at the application of law, while acknowledging that simple deductive reasoning, though always necessary, is very rarely sufficient to justify a decision. There are always problems of relevancy, classification or interpretation in relation to both facts and law. In justifying conclusions about such problems, reasoning has to be universalistic and yet fully sensitive to the particulars of specific cases. How is this possible? Is legal justification at this level consequentialist in character or principled and right-based? Both normative coherence and narrative coherence have a part to play in justification, and in accounting for the validity of arguments by analogy. Looking at such long-discussed subjects as precedent and analogy and the interpretative character of the reasoning involved, Neil MacCormick expands upon his celebrated Legal Reasoning and Legal Theory (OUP 1978 and 1994) and restates his 'institutional theory of law'.

Legal Reasoning, Legal Theory and Rights

Legal Reasoning, Legal Theory and Rights Pdf/ePub eBook Author: MartinP. Golding
Editor: Routledge
ISBN: 1351560530
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Legal Reasoning, Legal Theory and Rights by MartinP. Golding Summary

This book is a selection of articles and chapters published over Martin Golding's academic career. Golding's approach to the philosophy of law is that it contains conceptual and normative issues and in this volume logical issues in legal reasoning are examined, and various theories of law are critically discussed. Normative questions are dealt with regarding the rule of law and criminal law defenses, and the concept of rights and the terminology of rights are analyzed. Much of Golding's work is critical-historical as well as constructive. This volume will prove an informative and useful collection for scholars and students of the philosophy of law.

Legal Method

Legal Method Pdf/ePub eBook Author: T. Ian McLeod
Editor: Macmillan International Higher Education
ISBN: 1349150754
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Legal Method by T. Ian McLeod Summary

Introduces the nature of law and legal reasoning for anyone beginning serious legal training or study. Starting with the English legal system and constitutional law, Mcleod moves on to case law and precedent, statute law and interpretation including EC law as it arises.

Legal Reasoning and Political Conflict

Legal Reasoning and Political Conflict Pdf/ePub eBook Author: Cass R. Sunstein
Editor: Oxford University Press
ISBN: 0195353498
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Legal Reasoning and Political Conflict by Cass R. Sunstein Summary

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.

Methods of Legal Reasoning

Methods of Legal Reasoning Pdf/ePub eBook Author: Jerzy Stelmach,Bartosz Brozek
Editor: Springer Science & Business Media
ISBN: 1402049390
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Methods of Legal Reasoning by Jerzy Stelmach,Bartosz Brozek Summary

Methods of Legal Reasoning describes and criticizes four methods used in legal practice, legal dogmatics and legal theory: logic, analysis, argumentation and hermeneutics. The book takes the unusual approach of discussing in a single study four different, sometimes competing concepts of legal method. Sketched this way, the panorama allows the reader to reflect deeply on questions concerning the methodological conditioning of legal science and the existence of a unique, specific legal method.

Constitutionalism and Legal Reasoning

Constitutionalism and Legal Reasoning Pdf/ePub eBook Author: Massimo La Torre
Editor: Springer Science & Business Media
ISBN: 1402055951
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Constitutionalism and Legal Reasoning by Massimo La Torre Summary

This book of legal philosophy contends that positive law is better understood if it is not too easily equated with power, force, or command. Law is more a matter of discourse and deliberation than of sheer decision or of power relations. Here is thought-provoking reading for lawyers, advocates, scholars of jurisprudence, students of law, philosophy and political science, and general readers concerned with the future of the constitutional state.

Comparative Legal Reasoning and European Law

Comparative Legal Reasoning and European Law Pdf/ePub eBook Author: Markku Kiikeri
Editor: Springer Science & Business Media
ISBN: 9401009775
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Comparative Legal Reasoning and European Law by Markku Kiikeri Summary

Comparative Legal Reasoning and European Law deals with the use of comparative law in European legal adjudication. It describes the different forms of the use of comparative law in legal reasoning, argumentation and justification in several national legal orders and in European level legal institutions. The book begins with an inquiry into the nature of comparative law as a legal source. After the description of the empirical study it ends to the general theory of European law and several hard cases of European law are examined. The book is intended for students and researchers in European law but it also contains aspects to be taken into account in the practical work in European legal orders and legal institutions by judges and legal practitioners.

Law School Basics

Law School Basics Pdf/ePub eBook Author: David Hricik
Editor: Nova Press
ISBN: 1889057398
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Law School Basics by David Hricik Summary

Law school has the reputation of being one of the hardest academic programs. It is a reputation well earned. However, Law School Basics is chock-full of insights and strategies that will prepare you well and give you a head start on the competition. Law School Basics presents a thorough overview of law school, legal reasoning, and legal writing. It was written for those who are considering law school; for those who are about to start law school; and for those who are interested in knowing more about lawyering and the legal process. Law School Basics was written with one overriding goal: to enlighten you about everything the author wishes he had known before starting law school.

The Legal Reasoning of the Court of Justice of the EU

The Legal Reasoning of the Court of Justice of the EU Pdf/ePub eBook Author: Gunnar Beck
Editor: Bloomsbury Publishing
ISBN: 178225031X
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The Legal Reasoning of the Court of Justice of the EU by Gunnar Beck Summary

The Court of Justice of the European Union has often been characterised both as a motor of integration and a judicial law-maker. To what extent is this a fair description of the Court's jurisprudence over more than half a century? The book is divided into two parts. Part one develops a new heuristic theory of legal reasoning which argues that legal uncertainty is a pervasive and inescapable feature of primary legal material and judicial reasoning alike, which has its origin in a combination of linguistic vagueness, value pluralism and rule instability associated with precedent. Part two examines the jurisprudence of the Court of Justice of the EU against this theoretical framework. The author demonstrates that the ECJ's interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher, especially constitutional courts, more in degree than in kind. It nevertheless leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court's exercise of its discretion is best understood in terms of the constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors such as sensitivity to Member States' interests, political fashion and deference to the 'EU legislator'. In conclusion, the Court of Justice of the EU has used the flexibility inherent in its interpretative approach and the choice it usually enjoys in determining the relative weight and order of the interpretative criteria at its disposal, to resolve legal uncertainty in the EU primary legal materials in a broadly communautaire fashion subject, however, to i) regard to the political, constitutional and budgetary sensitivities of Member States, ii) depending on the constraints and extent of interpretative manoeuvre afforded by the degree of linguistic vagueness of the provisions in question, the relative status of and degree of potential conflict between the applicable norms, and the range and clarity of the interpretative topoi available to resolve first-order legal uncertainty, and, finally, iii) bearing in mind the largely unpredictable personal element in all adjudication. Only in exceptional cases which the Court perceives to go to the heart of the integration process and threaten its acquis communautaire, is the Court of Justice likely not to feel constrained by either the wording of the norms in issue or by the ordinary conventions of interpretative argumentation, and to adopt a strongly communautaire position, if need be in disregard of what the written laws says but subject to the proviso that the Court is assured of the express or tacit approval or acquiescence of national governments and courts.

Islamic and Jewish Legal Reasoning

Islamic and Jewish Legal Reasoning Pdf/ePub eBook Author: Anver Emon
Editor: Simon and Schuster
ISBN: 1780748817
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Islamic and Jewish Legal Reasoning by Anver Emon Summary

By pairing a scholar of Islamic law with a scholar of Jewish law, a unique dynamic is created, and new perspectives are made possible. These new perspectives not only enable an understanding of the other’s legal tradition, but most saliently, they offer new insights into one’s own legal tradition, shedding light on what had previously been assumed to be outside the scope of analytic vision. In the course of this volume, scholars come together to examine such issues as judicial authority, the legal policing of female sexuality, and the status of those who stand outside one’s own tradition. Whether for the pursuit of advanced scholarship, pedagogic innovation in the classroom, or simply a greater appreciation of how to live in a multi-faith, post-secular world, these encounters are richly-stimulating, demonstrating how legal tradition can be used as a common site for developing discussions and opening up diverse approaches to questions about law, politics, and community. Islamic and Jewish Legal Reasoning offers a truly incisive model for considering the good, the right and the legal in our societies today.

Rethinking Legal Reasoning

Rethinking Legal Reasoning Pdf/ePub eBook Author: Geoffrey Samuel
Editor: Edward Elgar Publishing
ISBN: 1784712612
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Rethinking Legal Reasoning by Geoffrey Samuel Summary

‘Rethinking’ legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning?

Justice, Law, and Argument

Justice, Law, and Argument Pdf/ePub eBook Author: Ch. Perelman
Editor: Springer Science & Business Media
ISBN: 9400990103
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Justice, Law, and Argument by Ch. Perelman Summary

This collection contains studies on justice, juridical reasoning and argumenta tion which contributed to my ideas on the new rhetoric. My reflections on justice, from 1944 to the present day, have given rise to various studies. The ftrst of these was published in English as The Idea of Justice and the Problem of Argument (Routledge & Kegan Paul, London, 1963). The others, of which several are out of print or have never previously been published, are reunited in the present volume. As justice is, for me, the prime example of a "confused notion", of a notion which, like many philosophical concepts, cannot be reduced to clarity without being distorted, one cannot treat it without recourse to the methods of reasoning analyzed by the new rhetoric. In actuality, these methods have long been put into practice by jurists. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof. It is important, then, that philosophers should not limit their methodologi cal studies to mathematics and the natural sciences. They must not neglect law in the search for practical reason. I hope that these essays lead to be a better understanding of how law can enrich philosophical thought. CH. P.

An Introduction to Legal Reasoning

An Introduction to Legal Reasoning Pdf/ePub eBook Author: Edward H. Levi
Editor: University of Chicago Press
ISBN: 022608986X
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An Introduction to Legal Reasoning by Edward H. Levi Summary

Originally published in 1949, An Introduction to Legal Reasoning is widely acknowledged as a classic text. As its opening sentence states, “This is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the Constitution.” In elegant and lucid prose, Edward H. Levi does just that in a concise manner, providing an intellectual foundation for generations of students as well as general readers. For this edition, the book includes a substantial new foreword by leading contemporary legal scholar Frederick Schauer that helpfully places this foundational book into its historical and legal contexts, explaining its continuing value and relevance to understanding the role of analogical reasoning in the law. This volume will continue to be of great value to students of logic, ethics, and political philosophy, as well as to members of the legal profession and everyone concerned with problems of government and jurisprudence.

How to Measure the Quality of Judicial Reasoning

How to Measure the Quality of Judicial Reasoning Pdf/ePub eBook Author: Mátyás Bencze,Gar Yein Ng
Editor: Springer
ISBN: 3319973169
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How to Measure the Quality of Judicial Reasoning by Mátyás Bencze,Gar Yein Ng Summary

This edited volume examines the very essence of the function of judges, building upon developments in the quality of justice research throughout Europe. Distinguished authors address a gap in the literature by considering the standards that individual judgments should meet, presenting both academic and practical perspectives. Readers are invited to consider such questions as: What is expected from judicial reasoning? Is there a general concept of good quality with regard to judicial reasoning? Are there any attempts being made to measure the quality of judicial reasoning? The focus here is on judges meeting the highest standards possible in adjudication and how they may be held to account for the way they reason. The contributions examine theoretical questions surrounding the measurement of the quality of judicial reasoning, practices and legal systems across Europe, and judicial reasoning in various international courts. Six legal systems in Europe are featured: England and Wales, Finland, Italy, the Czech Republic, France and Hungary as well as three non-domestic levels of court jurisdictions, including the Court of Justice of the European Union (CJEU). The depth and breadth of subject matter presented in this volume ensure its relevance for many years to come. All those with an interest in benchmarking the quality of judicial reasoning, including judges themselves, academics, students and legal practitioners, can find something of value in this book.