David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Ratio Juris 22 (4):483-498 (2009)
The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term "evaluation" in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.
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References found in this work BETA
Simon Blackburn (1998/2000). Ruling Passions. Oxford University Press.
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Allan Gibbard (1990). Wise Choices, Apt Feelings: A Theory of Normative Judgment. Harvard University Press.
Citations of this work BETA
Torben Spaak (2015). Realism About the Nature of Law. Ratio Juris 28 (4).
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