This comprehensive volume features the proceedings of the Third International Workshop on Logics for New-Generation Artificial Intelligence and the International Workshop on Logic, AI and Law, held in Hangzhou, China on September 8-9 and 11-12, 2023. The collection offers a diverse range of papers that explore the intersection of logic, artificial intelligence, and law. With contributions from some of the leading experts in the field, this volume provides insights into the latest research and developments in the applications of logic in (...) these areas. It is an essential resource for researchers, practitioners, and students interested in the latest advancements in logic and its applications to artificial intelligence and law. (shrink)

In The Uses of Argument, Stephen Toulmin proposed a model for the layout of arguments: claim, data, warrant, qualifier, rebuttal, backing. Since then, Toulmin’s model has been appropriated, adapted and extended by researchers in speech communications, philosophy and artificial intelligence. This book assembles the best contemporary reflection in these fields, extending or challenging Toulmin’s ideas in ways that make fresh contributions to the theory of analysing and evaluating arguments.

. The author discusses the conditions necessary to accept the one right answer theory. The argument is based on an analysis of the deep structure of the justified fractional decisions pertaining to the substantive decisional model of the judicial application of law within the statutory law system. The role of evaluative choices is needed to justify the decisions in question at least in hard cases. This makes the theory of one right answer unacceptable in a noncognitivist axiological framework.

The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of principles, and (...) kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rationality. (shrink)

. Legal theory has so far focused exclusively on judicial activity, not on legislation. This is due to the specific legal framework of reasoning, upon which it is essential to act upon rules, wherever they come from. This form of legalism is criticized and replaced by weak legalism. Weak legalism makes it possible to detect the principles of legislation that underly the activity of the legislator. Legisprudence is the theory of these principles.

The paper will discuss the role of the visual in French urban space. It will reveal the close connections between visual and semiotics where the visual dimension is central rather than marginal. We will evaluate altogether the psychological, legal and social impacts of the new shapes of our own environment. Rethinking our public space shapes our identities, unveils the ‘hidden’ powerful discourse behind these new urban models.

In this article, we try to trace the relationship between semiotics and theory of legal reasoning using Peirce’s idea that all reasoning must be necessarily in signs: every act of reasoning/argumentation is a sign process, leading to “the growth of knowledge. The broad scope and universal character of Peirce’s sign theory of reasoning allows us to look for new conciliatory paradigms, which must be presented in terms of possible synthesis between the traditional approaches to argumentation. These traditional approaches are strongly (...) affected by either the dialectical (logical) perspective or the rhetorical perspective on argumentation, while Peirce’s approach tends to reconcile the rhetorical and methodological aspects of reasoning. This reconcilation is best illustrated by Peircean analysis of argument’s logical and rhetorical structure; while the diagrammatic (iconic) analysis of arguments is performed in the system of Existential Graphs (which is Peirce’s major methodological system, designed for the expressions of propositions in point of their relational structure). Obviously, Peirce’s original division of argument parts offered only the characterisation of the sign activity (involved in the process of reasoning), and thus left much to be desired in terms of practical explication. (shrink)

Argumentar constituye un quehacer cotidiano para los diferentes operadores jurídicos y, de modo especial, para quienes desempeñan la función judicial. Dado que las decisiones de los jueces están sometidas a un cierto control de racionalidad, es posible concebir las argumentaciones jurídicas empleadas en la aplicación del derecho como un modo institucionalizado de ejercitar la racionalidad práctica. Sin embargo, esto no implica, en contra de lo que a menudo se suele afirmar, que los procesos argumentatívos jurídicos estén sujetos en exclusiva a (...) las leyes de la lógica deductiva. Cabe sostener el carácter racional de la aplicación del derecho sin caer en un logicísmo a ultranza ni en una defensa de las artes de la retórica y de la tópica: ahí está, entre otras, la vía defendida por la teoría discursiva de la argumentación jurídica elaborada por Robert Alexy a partir de presupuestos básicamente habermasianos, así como las correcciones contextualistas de la misma llevadas a cabo por Klaus Günthcr. (shrink)

En su libro The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument,1 Amalia Amaya argumenta las ventajas de adoptar una postura coherentista en el derecho. Concretamente, su tesis principal es la siguiente...

Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. (...) These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. (shrink)

Relativistic theories and arguments are fairly common in legal thinking. A case in point is Stanley Fish's theory of interpretation, which applies to statutes and constitutions as well as to novels and poems. Fish holds, inter alia, (i) that an interpretation of a statute, a poem, or some other text can be true or valid only in light of the interpretive strategies that define an interpretive community, and (ii) that no set of interpretive strategies (and therefore no interpretation) is truer (...) or more valid than any other. In this article, I discuss these claims critically and argue that the very idea of an interpretive community is more or less unintelligible, and that in any case Fish's theory is self-refuting. I begin with a few words about the methods and techniques of statutory interpretation(Section 2). I proceed by introducing Fish's theory of interpretation, giving special consideration to some difficulties in Fish's account of the concept of an interpretive community (Sections 3-4). I then introduce two types of relativism, cognitive and moral (Section 5), and argue that Fish's theory asserts cognitive relativism in the shape of conceptual relativism and relativism about truth (Section 6). Having done that, I consider Donald Davidson's well-known objection to alternative conceptual schemes (Section 7) as well as the popular charge that relativism about truth is self-refuting (Section 8). (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...) of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

Anglo-American authors have paid little attention to a subtle distinction that has important jurisprudential implications. It is the distinction between sources of law and the legal norms which can be derived from sources by means of interpretation. The distinction might also be rendered as a threefold one, separating sources of law from legal norms and both of these from that which mediates their relation, namely, methods of legal interpretation. This paper intends to state the “source-norm” distinction clearly and to give (...) examples of jurisprudential insights that are missed, and mistakes that may be made if the distinction is not given its due. (shrink)

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

Can Hart's non-cognitivism be reconciled with his rejection of the predictive and sanction-based explanations of law? This paper analyses Hart's notion of the internal point of view and focuses on the notion of acceptance of a rule along the lines of a non-cognitivist understanding of intentional actions. It is argued that a non-cognitivist analysis of acceptance of rules is incomplete and parasitic on a more basic or primary model of acceptance that does not involve mental states. This basic or primary (...) model of acceptance explains actions in terms of other actions and in terms of reasons for actions that are both presented as good-making characteristics and transparent to the agent. If Hart's internal point of view is able to work as the key argument to reject predictive and sanction-based explanations of law, it needs to make the outward approach of intentional action basic or primary rather than rely on an inward approach such as the one advanced by non-cognitivism. (shrink)

El propósito principal de este trabajo es presentar un argumento crítico aplicable a aquellas posiciones interpretativistas según las cuales, en la medida en que el objetivo de la teoría jurídica es identificar y explicar conceptos institucionales, es imprescindible asumir la necesidad de un punto de vista interno. Una parte substancial del artículo está dedicada, por una parte, a mostrar la ambigüedad de esta tesis y, por otra, a justificar la distinción entre dos sentidos, uno epistemológico y otro pragmático, en los (...) que las expresiones “punto de vista interno” y “punto de vista externo” pueden ser entendidas. Detectar esta ambigüedad, en primer lugar, permite mostrar diferentes formas de entender los conceptos institucionales. En segundo lugar, hace posible captar un peculiar tipo de indeterminación que afecta a todo discurso referido a las instituciones sociales en general y a las instituciones jurídicas en particular. La tesis central sostenida en este trabajo es que, para identificar y explicar un concepto institucional, la teoría jurídica debe necesariamente adoptar un punto de vista interno en sentido epistemológico, pero no en sentido pragmático. En la parte final del ensayo se sugiere que es posible generalizar la crítica formulada a las posiciones interpretativistas que sostienen indistintamente la necesidad de un punto de vista interno y aplicarla también a aquellas posiciones según las cuales, para identificar y explicar un concepto institucional, debemos necesariamente adoptar un punto de vista externo. La conclusión es que no existe un único método de estudio en la teoría jurídica y, sobre todo, que dicho método depende del modo en el que se configure el objeto de estudio. En este caso, los conceptos institucionales o el contenido de las instituciones jurídicas. (shrink)

The author analyzes fictions of legal positivist philosophy and their role in the scientific legitimation of modern law and political domination. The original function of legalist fictions was the establishment of legal science, which would be autonomous and independent of other social sciences and public morality. In the second half of the 20th century, legal positivist philosophy has nevertheless adopted the fiction of the just law as its scientific legitimation fiction and incorporated moral and political discourse into legal science, again.Legal (...) positivism and its critiques within the discourse of the sociology of law and critical legal science keep the image of a hierarchical and centralized legitimation of law. Paradoxically, current legal philosophy and theory searching for a universally valid legitimation scheme is full of many different legitimations and reveals their growing plurality and the impossibility of establishing one sovereign legitimation scheme in the current social, theoretical and political condition. (shrink)

The phenomenon of defeasibility has long been a central theme in legal literature. This essay aims to shed new light on that phenomenon by clarifying some fundamental conceptual issues. First, the most widespread definition of legal defeasibility is examined and criticized. The essay shows that such a definition is poorly constructed, inaccurate and generates many problems. Indeed, the definition hides the close relationship between legal defeasibility and legal interpretation. Second, this essay argues that no new definition is needed. I will (...) show that from an interpretative standpoint, there is nothing special about legal defeasibility. Contrary to what some authors maintain, no unique or privileged source of legal defeasibility exists, nor are there privileged arguments to justify it. Specifically, legal defeasibility refers to interpretative outcomes deriving from interpretative arguments that, on the one hand, are very different from one another, and, on the other, are often employed to justify different interpretative outcomes. In the legal field, the problems related to defeasibility have little in common with the problems that this label covers in other areas—such as logic or epistemology—and they are nothing but the well-known problems related to legal interpretation. In conclusion, this paper argues that as far as legal argumentation is concerned, the notion of legal defeasibility lacks explanatory power, and it should be abandoned. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

Although coherence has become one of the key concepts in contemporary legal theory, its meaning is taken almost universally to be elusive, complex and controversial. However, these difficulties are due just to the failure of commentators to distinguish the intension of the notion from other features of its (many) referents in extension. The oversight has caused qualities to be ascribed routinely to coherence that properly attach to various object(s) of which coherence is predicated, and which a theorist happens to have (...) in mind when bringing coherence into view. This conceptual error has significance for the substance of present claims made for the use of the notion in law. Freed from the entanglement, coherence emerges thinner and fitter, better able to be deployed with confidence in legal application. (shrink)

The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in (...) a word, is the normativity thesis. Hart, however, grounds his theory in social fact. In place of the reductive thesis of the legal positivist tradition, and in sharp contrast to Kelsen's normativity thesis, Hart defends a non‐reductive version of what the author terms the facticity thesis. (shrink)

. “The Notebook Corner,” edited by Enrico Pattaro, makes its first appearance here as a new section of Ratio Juris. This new section can be described in a sense as an offshoot of the project for A Treatise of Legal Philosophy and General Jurisprudence, a work still in progress composed of five theoretical volumes and six historical ones. The theoretical volumes receive a brief presentation in the paper immediately below, with a specific focus on Volume 1, entitled The Law and (...) the Right: A Reappraisal of the Reality That Ought to Be. This volume is then discussed as well by Rosaria Conte and Cristiano Castelfronchi in the second paper of this “Notebook Corner”. (shrink)

The theory of rhetoric is recognised and widely used in a number of disciplines, particularly in the social sciences. It is therefore slightly surprising that it has not gained an important footing in jurisprudence. It is often argued that rhetoric and argumentative justification are clearly different issues. However, the present paper argues that they are in fact two aspects of argumentation and that the theory of rhetoric may be used also in the context of legal reasoning.

¿Cómo justificar la validez jurídica de aquellas normas cuya creación no puede ser evaluada como regular o irregular por apelación a ninguna otra norma jurídica? Entre las respuestas más ilustres a este problema se cuentan la norma fundante kelseniana y la regla de reconocimiento de Hart, pero cada una de esas ideas ha sido objeto de serias críticas. Eugenio Bulygin ha efectuado aportes decisivos en esta discusión: ha advertido que cuando se examina el fundamento último de la validez de las (...) normas jurídicas es preciso discriminar un sentido prescriptivo y uno descriptivo de validez, y que la norma fundante de Kelsen no es sino el producto de una confusión entre ambos; ha resaltado que la regla de reconocimiento debe interpretarse como una regla conceptual que especifica los criterios de identificación de las normas jurídicas, y ha señalado que las normas de competencia no pueden reconstruirse como normas de conducta. Si bien con tales aportes ha sentado las bases para ofrecer una solución, su reconstrucción requiere de ciertas precisiones para poder ser considerada una respuesta enteramente satisfactoria a la pregunta respecto del fundamento último de la validez jurídica. How is it possible to ground the legal validity of those rules whose creation cannot be assessed as regular or irregular by reference to any other legal rule? Kelsen's basic norm and Hart's rule of recognition are among the most famous answers to this question, but both ideas have been seriously challenged. Eugenio Bulygin has made decisive contributions to this discussion. He has shown that in the analysis of the ultimate ground of validity of legal rules, two different senses of validity should be distinguished: a prescriptive and a descriptive sense, and that the Kelsenian basic norm is nothing but the product of confusion between these two different senses. He has also claimed that the rule of recognition has to be understood as a conceptual rule specifying the criteria of identification of legal rules, and those power-conferring rules cannot be interpreted as prescriptive norms of conduct. Although these contributions have provided a basic framework for a possible solution, Bulygin's ideas need a refinement in order to be considered as a satisfactory answer to the question concerning the ultimate ground of legal validity. (shrink)

This paper aims to perform a multi-level analysis of the Irish public discourse on Covid-19. Despite widespread agreement that Ireland’s response was rapid and effective, the country’s journey through the pandemic has been no easy ride. In order to contain the virus, the Government’s emergency legislation imposed draconian measures including the detention and isolation of people deemed to be even “a potential source of infection” and a significant extension of An Garda Síochána’s power of arrest. In April 2020, journalists John (...) Waters and Gemma O’Doherty initiated judicial review proceedings before the High Court to challenge such legislation, which they defined as unconstitutional, “disproportionate” and based on “fraudulent science”. The proceedings attracted widespread media coverage in what soon became a debate on the legitimacy of emergency legislation and the notion of ‘fake news’ itself. After a brief survey of the legislative background to Ireland’s Covid response, the argumentative strategy is analysed through which the High Court eventually dismissed Mr Waters and Ms O’Doherty’s challenge. Focusing on the process of justification of the judicial decision, the paper provides a descriptive account of the argument structure of the Court’s decision. This sheds light on the pattern of multiple argumentation through which the Court interpreted relevant norms in the Constitution and at once re-established the primacy of “facts” informing political decision-making at a time of national emergency. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal (...) experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

In contemporary society, as in classical Greece, we need citizens that deliberate well both for themselves and for society overall. Different competitors contend about the right principles in the theory of education. This paper holds that ‘character education’, descending from the ancient ethics of virtues, still represents the best option available for people who want to deliberate well for the common good. A special place in deliberation is taken by legal reasoning because the law is central in the distribution of (...) goods in our society. Rather than focusing only on rules and principles I follow the EV approach and focus on the qualities of the good decision-maker, the reasonable judge. The intellectual virtues of phronesis and techné combine those personal and professional qualities that we want at work in any judge. But it is the exercise of the civic art of rhetoric that expresses at best the public dimension of the reasonable judge. (shrink)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial (...) decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

Our purpose in this article is to draw attention to a connection that obtains between two dilemmas from two separate spheres: sports and the law. It is our contention that umpires in the game of cricket may face a dilemma that is similar to a dilemma confronted by legal decision makers and that comparing the nature of the dilemmas, and the arguments advanced to solve them, will serve to advance our understanding of both the law and games.

The question of whether the normative testimony of ethics experts should be admissible under the rules of evidence has been the subject of much debate. Professor Imwinkelried's paper is an effort to get us, for a moment, to change that subject. He seeks to turn our attention, instead, to a means by which bioethics experts’ normative analyses might come before the court without regard to the rules of evidence - a means lying formally outside those rules’ jurisdiction. The court, he (...) argues, may freely consider evidence from expert bioethicists so long as it is performing a legislative rather than an adjudicative function. The rules of evidence apply to the court's efforts to find the facts of a particular case, Imwinkelried argues, but they do not constrain the court's investigations relative to its creative law-making efforts. (shrink)

The question of whether the normative testimony of ethics experts should be admissible under the rules of evidence has been the subject of much debate. Professor Imwinkelried's paper is an effort to get us, for a moment, to change that subject. He seeks to turn our attention, instead, to a means by which bioethics experts’ normative analyses might come before the court without regard to the rules of evidence - a means lying formally outside those rules’ jurisdiction. The court, he (...) argues, may freely consider evidence from expert bioethicists so long as it is performing a legislative rather than an adjudicative function. The rules of evidence apply to the court's efforts to find the facts of a particular case, Imwinkelried argues, but they do not constrain the court's investigations relative to its creative law-making efforts. (shrink)

La motivación de los hechos se ha convertido en los últimos años en un tema de gran relevancia, especialmente porque empieza a ser analizado no tanto desde las herramientas tradicionales del Derecho Procesal sino desde la epistemología aplicada al trabajo de los jueces. En este trabajo, se presenta una serie de reflexiones a propósito de un medio de prueba cuyo uso por los tribunales constitucionales puede redundar en la construcción de la premisa fáctica a partir de criterios materiales: las diligencias (...) para mejor proveer. Cumplen el mismo propósito que los amicus curiae del Derecho anglosajón. Se presenta un doble análisis de este tipo de diligencias: uno relacionado con los principios generales de la teoría general del proceso, y otro con los problemas epistemológicos. Lo que se busca con este estudio es llamar la atención sobre la relevancia que pueden tener estas medidas cuando generan una genuina convicción de los jueces. Se considera que, aun cuando el propio sistema normativo ofrece esta gran herramienta epistemológica a los jueces, la misma es poco utilizada en nuestro país. (shrink)

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

The article discusses topics in the context of contemporary legal argumentation. It starts with a sketch of the development of topics from ancient times until the present day. Here the author focuses on the theory of the German legal philosopher Theodor Viehweg, which was most influential to legal argumentation in the 20th century. Then a modern concept of topics is introduced and finally the author discusses the role of topics in contemporary legal argumentation. In this part the distinction between topoi (...) in the weak sense (practically all argumentation schemes) and in the strong sense (specific legal topoi as listed by Gerhard Struck in 1971 is introduced. The author argues that Viehweg’s claim that topics plays an important role in legal argumentation is problematic, because topoi in the weak sense are certainly of high importance, but this is almost trivial. Topoi in the strong sense on the other hand are only of minor importance for legal practice. What characterises legal discourse much more is a set specific pragmatic discourse rules, discussed at the end of the paper. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion (...) and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

Civil wars in England and America were catalysts in forming the jurisprudential views of Thomas Hobbes and Oliver Wendell Holmes Jr. Holmes's pragmatism advances a fundamentally distinct view of order from Hobbes's analytical theory. Holmes replaced the Hobbesian analytical model of law with an endogenous model that assimilates conflict in a process of formal but communal inquiry into discrete types of dispute. Holmes rejected the analytical boundary around law in favor of a holistic fallibilism, which like Dewey's encompasses all inquiry, (...) legal, scientific, aesthetic, and philosophical, under one ontological roof. Holmes also provided a practical critique of ideology, best known from the words of his famous dissent in Lochner v. New York: “The fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics”; or, more to the point, “General propositions do not decide concrete cases.”. (shrink)

Much legal research focuses on understanding how judicial decision-makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision-making. We observe that discretionary decision-making can best be modeled using three independent axes: bounded and unbounded, defined and undefined, and binary and (...) continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains. (shrink)

In this note I examine a case of teleological reasoning in international law and find it to be the fallacy of affirming the consequent.I then show that and how the basis of this fallacy is a manipulation (or juxtaposition) of ?necessary? and ?sufficient? conditions.I conclude by giving reasons for thinking that this kind of reasoning is a regular feature of international law.

Used informally, the Reductio ad Absurdum (RAA) consists in reasoning appealing to the logically implied, absurd consequences of a hypothetical proposition, in order to refute it. This kind of reasoning resembles the Argument from Consequences, which appeals to causally induced consequences. These types of argument are sometimes confused, since it is not worked out how these different kinds of consequences should be distinguished. In this article it is argued that the logical consequences in RAA-argumentation can take different appearances and that (...) it therefore must be concluded that RAA cannot be characterised by a specific content, but must instead be characterised as an argument form. Furthermore, clues are provided to distinguish RAA reasoning from the Argument from Consequences. (shrink)

Una de las cuestiones a que se enfrenta la teoría de la argumentación jurídica, y a la que se dedica este trabajo, es poner de relieve el papel que las valoraciones tienen en el proceso de aplicación del derecho. Las razones valorativas juegan un papel más importante que el que la concepción positivista del derecho suele advertir. En muchos casos las decisiones judiciales no pueden justificarse en el propio derecho, sino en valoraciones ajenas al mismo. Esto no debe significar que, (...) en este ámbito, aquellas sean necesariamente arbitrarias, pero sí discrecionales, lo que conlleva que deben establecerse algunos criterios de racionalidad; criterios que no son ya jurídicos, sino de carácter moral o ético. (shrink)

The recent outbreak of Ebola in West Africa has killed thousands of people, including healthcare workers. African responses have been varied and largely ineffective. The WHO and the international community’s belated responses have yet to quell the epidemic. The crisis is characteristic of a failure to properly comply with the International Health Regulations 2005. More generally, it stems from a failure of international health justice as articulated by a range of legal institutions and instruments, and it should prompt us to (...) question the state and direction of approaches to the governance of global public health. This paper queries what might be done to lift global public health as a policy arena to the place of prominence that it deserves. It argues that there are at least two critical reasons for the past, present and easily anticipated future failings of the global public health regime. After exploring those, it then articulates a new way forward, identifying three courses of action that might be adopted in realising better health outcomes and global health justice, namely value, institutional and legal reform. (shrink)

Este trabajo bosqueja una teoría analítica y realista de la interpretación jurídica. Analítica, en el sentido que su método es el análisis lógico del lenguaje de los juristas. Realista, en el sentido que, por un lado, sostiene que el derecho es indeterminado y, por otro lado, representa la interpretación desarrollada por los jueces como una actividad intrínsecamente discrecional. En la primera parte, se introducen las distinciones fundamentales entre: interpretación “in abstracto” e interpretación “in concreto”; interpretación cognoscitiva, decisoria, y creativa; interpretación (...) en sentido estricto y construcción jurídica. Esta última distinción tiene una importancia especial: la interpretación en sentido estricto consiste en atribuir significado a un texto normativo, mientras que la construcción jurídica consiste en formular normas nuevas, que se pretenden implícitas en el sistema jurídico. En la segunda parte, se analizan, en su estructura lógica, las más difundidas técnicas argumentativas por las cuales los juristas suelen justificar sus operaciones interpretativas y constructivas. (shrink)

While defeasibility in legal reasoning has been the subject of recent scholarship, it has yet to be studied in the context of judicial opinion. Yet, being subject to appeal, judicial decisions can default for a variety of reasons. Prakken (2001) argued that the defeasibility affecting reasoning involved in adversarial legal argumentation is best analysed as procedural rather than logical. In this paper we argue that the defeasibility of ratio decendi is similarly best explained and modeled in a procedural and dialectical (...) framework. We propose that appeals are best understood as meta-dialogues about the reasoned dialogue occurring in the initial trial. (shrink)