This article deals with the relation between a theory of law and a theory of legalreasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legalreasoning, or at least a theory of legalreasoning with some particular characteristics. It then goes on to say that any theory of legal (...) class='Hi'>reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legalreasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legalreasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them. (shrink)
This article proposes a formal analysis of a fundamental aspect of legalreasoning: dealing with normative conflicts. Firstly, examples are illustrated concerning the dynamics of legal systems, the application of rules and exceptions, and the semantic indeterminacy of legal sources. Then two approaches to cope with conflicting information are presented: the preferred theories of Brewka, and the belief change functions of Alchourrón, Gärdenfors, and Makinson. The relations between those approaches are closely examined, and some aspects of (...) a model of reasoning with normative conflicts are outlined. Since this model takes into account an ordering of the involved regulations, criteria to order legal norms are finally specified. (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 LegalReasoning 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 legalreasoning 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 LegalReasoning and Legal Theory. (shrink)
We present a computational model of dialectical argumentation that could serve as a basis for legalreasoning. The legal domain is an instance of a domain in which knowledge is incomplete, uncertain, and inconsistent. Argumentation is well suited for reasoning in such weak theory domains. We model argument both as information structure, i.e., argument units connecting claims with supporting data, and as dialectical process, i.e., an alternating series of moves by opposing sides. Our model includes burden (...) of proof as a key element, indicating what level of support must be achieved by one side to win the argument. Burden of proof acts as move filter, turntaking mechanism, and termination criterion, eventually determining the winner of an argument. Our model has been implemented in a computer program. We demonstrate the model by considering program output for two examples previously discussed in the artificial intelligence and legalreasoning literature. (shrink)
The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legalreasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important (...) implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. (shrink)
This paper describes a model of legalreasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legalreasoning. The paper consists of three parts. The first part describes a model of legalreasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal (...) rules which in a sense summarise the outcome of the interaction of the principles and goals for a number of case types. Both principles, goals and rules can be used in legal arguments, but their logical roles are different. One characteristic of the model of legalreasoning described in the first part of the paper is that it takes these logical differences into account. Another characteristic is that it pays serious attention to the phenomena of reasoning about the validity and acceptance of rules, respectively principles and goals, and about the application of legal rules, and the implications of these arguments for the use of rules, principles and goals in deriving legal conclusions for concrete cases.The second part of the paper first describes a logic (Reason-Based Logic) that is especially suited to deal with legal arguments as described in terms of the previously discussed model. The facilities of the logic are illustrated by means of examples that correspond to the several aspects of the model. (shrink)
There are two possible ways to understand form and substance in legalreasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non-authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain (...) functions and they are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed. (shrink)
Analogy making from examples is a central task in intelligent system behavior. A lot of real world problems involve analogy making and generalization. Research investigates these questions by building computer models of human thinking concepts. These concepts can be divided into high level approaches as used in cognitive science and low level models as used in neural networks. Applications range over the spectrum of recognition, categorization and analogy reasoning. A major part of legalreasoning could be formally (...) interpreted as an analogy making process. Because it is not the same as reasoning in mathematics or the physical sciences, it is necessary to use a method, which incorporates first the ability to specify likelihood and second the opportunity of including known court decisions. We use for modelling the analogy making process in legalreasoning neural networks and fuzzy systems. In the first part of the paper a neural network is described to identify precedents of immaterial damages. The second application presents a fuzzy system for determining the required waiting period after traffic accidents. Both examples demonstrate how to model reasoning in legal applications analogous to recent decisions: first, by learning a system with court decisions, and second, by analyzing, modelling and testing the decision making with a fuzzy system. (shrink)
Inspired by legalreasoning, this paper presents a formal framework for assessing conflicting arguments. Its use is illustrated with applications to realistic legal examples, and the potential for implementation is discussed. The framework has the form of a logical system for defeasible argumentation. Its language, which is of a logic-programming-like nature, has both weak and explicit negation, and conflicts between arguments are decided with the help of priorities on the rules. An important feature of the system is (...) that these priorities are not fixed, but are themselves defeasibly derived as conclusions within the system. Thus debates on the choice between conflicting arguments can also be modelled.The proof theory of the system is stated in dialectical style, where a proof takes the form of a dialogue between a proponent and an opponent of an argument. An argument is shown to be justified if the proponent can make the opponent run out of moves in whatever way the opponent attacks. Despite this dialectical form, the system reflects a declarative, or relational approach to modelling legal argument. A basic assumption of this paper is that this approach complements two other lines of research in AI and Law, investigations of precedent-based reasoning and the development of procedural, or dialectical models of legal argument. (shrink)
Computational models of relevance in case-based legalreasoning have traditionallybeen based on algorithms for comparing the facts and substantive legal issues of aprior case to those of a new case. In this paper we argue that robust models ofcase-based legalreasoning must also consider the broader social and jurisprudentialcontext in which legal precedents are decided. We analyze three aspects of legalcontext: the teleological relations that connect legal precedents to the socialvalues and policies they (...) serve, the temporal relations between prior andsubsequent cases in a legal domain, and the procedural posture of legal cases,which defines the scope of their precedential relevance. Using real examples drawnfrom appellate courts of New York and Massachusetts, we show with the courts' ownarguments that the doctrine of stare decisis (i.e., similar facts should lead to similar results) is subject to contextual constraints and influences. For each of the three aspects of legal context, we outline an expanded computational framework for case-based legalreasoning that encompasses the reasoning of the examples, and provides a foundation for generating a more robust set of legal arguments. (shrink)
Few automated legalreasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. (...) We demonstrate that systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)
This paper presents a new algorithm to find an appropriate similarityunder which we apply legal rules analogically. Since there may exist a lotof similarities between the premises of rule and a case in inquiry, we haveto select an appropriate similarity that is relevant to both thelegal rule and a top goal of our legalreasoning. For this purpose, a newcriterion to distinguish the appropriate similarities from the others isproposed and tested. The criterion is based on Goal-DependentAbstraction (GDA) (...) to select a similarity such that an abstraction basedon the similarity never loses the necessary information to prove the ground (purpose of legislation) of the legal rule. In order to cope withour huge space of similarities, our GDA algorithm uses some constraintsto prune useless similarities. (shrink)
Legalreasoning is not the same as the reasoning in mathematics or the physical sciences. It is like them. Specifying the likeness in more detail, and deciding whether there is more likeness than unlikeness, are the kinds of tasks that legalreasoning is better adapted to do than mathematical or scientific reasoning.
Cass Sunstein, Free Markets and Social Justice. New York, Oxford University Press, 1996. Cass Sunstein, LegalReasoning and Political Conflict. New York, Oxford University Press, 1997.
Reasoning with cases has been a primary focus of those working in AI and law who have attempted to model legalreasoning. In this paper we put forward a formal model of reasoning with cases which captures many of the insights from that previous work. We begin by stating our view of reasoning with cases as a process of constructing, evaluating and applying a theory. Central to our model is a view of the relationship between (...) cases, rules based on cases, and the social values which justify those rules. Having given our view of these relationships, we present our formal model of them, and explain how theories can be constructed, compared and evaluated. We then show how previous work can be described in terms of our model, and discuss extensions to the basic model to accommodate particular features of previous work. We conclude by identifying some directions for future work. (shrink)
This book discusses theories of legalreasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legalreasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.
Some recent commentators have acquiesced in the efforts of some religious groups to co-opt concepts of morality, thus leading many—inappropriately, I believe—to think we must keep all morality out of our civic life and especially out of the reasoning in our legal system. I review examples of the confusion in characterizing the 2003 Lawrence v. Texas decision as a conflict between constitutional rights and religious moral precepts. I argue that this approach capitulates to particular views of morality as (...) religious morality. I consider the appeals to morality in the dissent and the ensuing confusion among commentators about the significance ofthis opinion. I review alternate readings of the Lawrence majority opinion, including proposals that it be considered from the perspectives of the ethicalframeworks of Locke, Mill, or Kant. (shrink)
Some recent commentators have acquiesced in the efforts of some religious groups to co-opt concepts of morality, thus leading many—inappropriately, I believe—to think we must keep all morality out of our civic life and especially out of the reasoning in our legal system. I review examples of the confusion in characterizing the 2003 Lawrence v. Texas decision as a conflict between constitutional rights and religious moral precepts. I argue that this approach capitulates to particular views of morality as (...) religious morality. I consider the appeals to morality in the dissent and the ensuing confusion among commentators about the significance ofthis opinion. I review alternate readings of the Lawrence majority opinion, including proposals that it be considered from the perspectives of the ethicalframeworks of Locke, Mill, or Kant. (shrink)
The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt with (...) by means of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legalreasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests. (shrink)
This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.Explores enduring questionsFocusing ...
An application of Narrative Knowledge Representation Language (NKRL) techniques on (declassified) ‘terrorism in Southern Philippines’ documents has been carried out in the context of the IST Parmenides project. This paper describes some aspects of this work: it is our belief, in fact, that the Knowledge Representation techniques and the Intelligent Information Retrieval tools used in this experiment can be of some interest also in an ‘Ontological Modelling of Legal Events and LegalReasoning’ context.
Muslims have always used verses from the Qur'an to support opinions on law, theology, or life in general, but almost no attention has been paid to how the Qur'an presents its own precepts as conclusions proceeding from reasoned arguments. Whether it is a question of God's powers of creation, the rationale for his acts, or how people are to think clearly about their lives and fates, Muslims have so internalized Qur'anic patterns of reasoning that many will assert that the (...) Qur'an appeals first of all to the human powers of intellect. This book provides a new key to both the Qur'an and Islamic intellectual history. Examining Qur'anic argument by form and not content helps readers to discover the significance of passages often ignored by the scholar who compares texts and the believer who focuses upon commandments, as it allows scholars of Qur'anic exegesis, Islamic theology, philosophy, and law to tie their findings in yet another way to the text that Muslims consider the speech of God. (shrink)
Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to (...) a branch of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented. (shrink)
The facts to be proven in a lawsuit can be more or less probable. But the recognition of the relevant facts may require discretion or evaluative operations; moreover, a just and equitable interpretation of a contract may depend on what the contracting parties knew about the intentions of each other. Can, e.g., negligence be more or less probable? Can Ought be proven? There is, however, a structural similarity between legal interpretation and the evalution of evidence and not only an (...) intertwinement between the so-called questions of fact and the questions of law. A number of situations is briefly analysed: the interpretation of contracts, the interest of the child, the basic concepts of the law of torts and the criminal intent. (shrink)
The paper gives ontologies in the Web Ontology Language (OWL) for Legal Case-based Reasoning (LCBR) systems, giving explicit, formal, and general specifications of a conceptualisation LCBR. Ontologies for different systems allows comparison and contrast between them. OWL ontologies are standardised, machine-readable formats that support automated processing with Semantic Web applications. Intermediate concepts, concepts between base-level concepts and higher level concepts, are central in LCBR. The main issues and their relevance to ontological reasoning and to LCBR are discussed. (...) Two LCBR systems (AS-CATO, which is based on CATO, and IBP) are analysed in terms of basic and intermediate concepts. Central components of the OWL ontologies for these systems are presented, pointing out differences and similarities. The main novelty of the paper is the ontological analysis and representation in OWL of LCBR systems. The paper also emphasises the important issues concerning the representation and reasoning of intermediate concepts. (shrink)
In this paper we apply a general account of practical reasoning to arguing about legal cases. In particular, we provide a reconstruction of the reasoning of the majority and dissenting opinions for a particular well-known case from property law. This is done through the use of Belief-Desire-Intention (BDI) agents to replicate the contrasting views involved in the actual decision. This reconstruction suggests that the reasoning involved can be separated into three distinct levels: factual and normative levels (...) and a level connecting the two, with conclusions at one level forming premises at the next. We begin by summarising our general approach, which uses instantiations of an argumentation scheme to provide presumptive justifications for actions, and critical questions to identify arguments which attack these justifications. These arguments and attacks are organised into argumentation frameworks to identify the status of individual arguments. We then discuss the levels of reasoning that occur in this reconstruction and the properties and significance of each of these levels. We illustrate the different levels with short examples and also include a discussion of the role of precedents within these levels of reasoning. (shrink)
Computational approaches to the law have frequently been characterized as being formalistic implementations of the syllogistic model of legal cognition: using insufficient or contradictory data, making analogies, learning through examples and experiences, applying vague and imprecise standards. We argue that, on the contrary, studies on neural networks and fuzzy reasoning show how AI & law research can go beyond syllogism, and, in doing that, can provide substantial contributions to the law.
As an introduction to our work, we emphasize the parallel interpretation of abstract tools and the concepts of undetermined and vague information. Imprecision, uncertainty and their relationships are inspected. Suitable interpretations of the fuzzy sets theory are applied to legal phenomena in an attempt to clearly circumscribe the possible applications of the theory. The fundamental notion of reference sets is examined in detail, hence highlighting their importance. A systematic and combinatorial classification of the relevant subsets of the legal (...) field is supplied for practical application. Although the use of the fuzzy sets theory is sometimes suggested as a palliative measure (no competition exists), it can also be complementary (serve as a building block to improve modelisation). An Appendix gives a brief recall of the key-concepts of the axiomatic theory of fuzziness and its developments: fuzzy sets, fuzzy logic, fuzzy control and theory of possibility. (shrink)
This article investigates the implications of goal-legislation for legal argumentation. In goal-regulation the legislator formulates the aims to be reached, leaving it to the norm-addressee to draft the necessary rules. On the basis of six types of hard cases, it is argued that in such a system there is hardly room for constructing a ratio legis. Legal interpretation is largely reduced to concretisation. This implies that legal argumentation tends to become highly dependent on expert (non-legal) knowledge.
In attempting to build intelligent litigation support tools, we have moved beyond first generation, production rule legal expert systems. Our work integrates rule based and case based reasoning with intelligent information retrieval.When using the case based reasoning methodology, or in our case the specialisation of case based retrieval, we need to be aware of how to retrieve relevant experience. Our research, in the legal domain, specifies an approach to the retrieval problem which relies heavily on an (...) extended object oriented/rule based system architecture that is supplemented with causal background information. We use a distributed agent architecture to help support the reasoning process of lawyers. (shrink)
In recent years several proposals to view reasoning with legal cases as theory construction have been advanced. The most detailed of these is that of Bench-Capon and Sartor, which uses facts, rules, values and preferences to build a theory designed to explain the decisions in a set of cases. In this paper we describe CATE (CAse Theory Editor), a tool intended to support the construction of theories as described by Bench-Capon and Sartor, and which produces executable code corresponding (...) to a theory. CATE has been used in a series of experiments intended to explore a number of issues relating to such theories, including how the theories should be constructed, how sets of values should be compared, and the representation of cases using structured values as opposed to factors. (shrink)
(2013). Legal idioms: a framework for evidential reasoning. Argument & Computation: Vol. 4, Formal Models of Reasoning in Cognitive Psychology, pp. 46-63. doi: 10.1080/19462166.2012.682656.
This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
These critiques and the ways of thinking made possible in their wake tend to be called post-modern, a term which is vague and even a little irritating. It would be more precise and descriptive to speak instead of post- Enlightenment critiques of reason. Hume is arguably the first post-Enlightenment thinker, and after Hume these critiques of reason developed further in Hegel, Marx, Kierkegaard, and Nietzsche, and were then taken up by many lesser, 20th century thinkers. If the Enlightenment was the (...) age in which human reason in the form of argument and evidence superseded authority in the form of church and state, in the grounding of scientific, philosophical, moral, and political claims, then the critiques of reason I want to talk about are all post-Enlightenment. (shrink)
Judges and jurors must make decisions in an environment of ignoranceand uncertainty for example by hearing statements of possibly unreliable ordishonest witnesses, assessing possibly doubtful or irrelevantevidence, and enduring attempts by the opponents to manipulate thejudge''s and the jurors'' perceptions and feelings. Three importantaspects of decision making in this environment are the quantificationof sufficient proof, the weighing of pieces of evidence, and therelevancy of evidence. This paper proposes a mathematical frameworkfor dealing with the two first aspects, namely the quantification ofproof (...) and weighing of evidence. Our approach is based on subjectivelogic, which is an extension of standard logic and probability theory,in which the notion of probability is extended by including degrees ofuncertainty. Subjective Logic is a framework for modelling humanreasoning and we show how it can be applied to legalreasoning. (shrink)
This study focuses on current jurisprudential debate between the "positivist" views of Herbert Hart and the "rights thesis" of Ronald Dworkin. MacCormick provides a critical analysis of the Dworkin position while also modifying Hart's. It stands firmly on its own as a contribution to an extensive literature.
Reasoners compare problems to prior cases to draw conclusions about a problem and guide decision making. All Case-Based Reasoning (CBR) employs some methods for generalizing from cases to support indexing and relevance assessment and evidences two basic inference methods: constraining search by tracing a solution from a past case or evaluating a case by comparing it to past cases. Across domains and tasks, however, humans reason with cases in subtly different ways evidencing different mixes of and mechanisms for these (...) components.In recent CBR research in Artificial Intelligence (AI), five paradigmatic approaches have emerged: statistically-oriented, model-based, planning/design-oriented, exemplar-based, and adversarial or precedent-based. The paradigms differ in the assumptions they make about domain models, the extent to which they support symbolic case comparison, and the kinds of inferences for which they employ cases. (shrink)
This is a book about moral reasoning: how we actually reason and how we ought to reason. It defends a form of "rule" utilitarianism whereby we must sometimes judge and act in moral questions in accordance with generally accepted rules, so long as the existence of those rules is justified by the good they bring about. The author opposes the currently more fashionable view that it is always right for the individual to do that which produces the most good. (...) Among the salient topics covered are: an account of the utilitarian function in society of generally accepted moral rules; a discussion of how we interpret existing moral rules and create new ones; and a defense of "rule" utilitarianism against the charge that it either commits one to irrational rule worship, or collapses into a form of "act" utilitarianism. (shrink)
In the United States, judicialrulings that unrealistically addressed the complexityof cases and demonstrated limited understanding ofprinciples, helped to create a legal quagmire whichlegislatures had to confront. Moreover, thelegislative response was often slow and inadequate interms of both the scope and clarity of the laws. However, since the 1970s, progress has been made onmany fronts, particularly in regard to advancedirectives dealing with end-of-life decisions. Thedebate over physician-assisted suicide has spawned arepetition of moral and legal arguments. Thoseagainst legalization have failed (...) to make a realisticappraisal of the dilemmas facing patients and theirfamilies in an age of technological medicine deliveredin the context of the marketplace. The underlyingproblem is a system in dire need of reform that willno longer treat health care as a commodity of themarketplace and provide universal health care. Terminal care as an integral part of health care willsubstantially benefit from such reforms because amajor obstacle to comprehensive palliative care is thecondition of the present system. (shrink)
In this paper I attempt to bring together (at least) two very different debates: one on justice, mercy and particularity, the other on the play of exclusionary reasons. My aim is to show how the discussion of the uneasy co-existence of justice and mercy pivots on the question of particularity. And, secondly, that the debate on exclusionary reasons can show us why law may fail to do justice in this context.
In this paper I attempt to bring together (at least) two very different debates: one on justice, mercy and particularity, the other on the play of exclusionary reasons. My aim is to show how the discussion of the uneasy co-existence of justice and mercy pivots on the question of particularity. And, secondly, that the debate on exclusionary reasons can show us why law may fail to do justice in this context.
Legal argumentation, like argumentation generally, occurs against a background of shared understanding and competence. This view, inspired by Kuhn's understanding of scientific reasoning, is in stark contrast to more traditional ârule-followingâ accounts of legal argumentation. Below I consider reasons to reject the more traditional view of legalreasoning in favor of a roughly Kuhnian account of legalreasoning and conclude by raising skeptical questions about the cogency of legalreasoning when the (...) tacitly accepted background conditions that make it possible are not critically examined. (shrink)
This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will." It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality (...) must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult. The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries? There are obvious complilcations in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes. (shrink)
I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an (...) ethics of adjudication. I offer an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)
This volume surveys the current state of the critical Legal Studies movement- a fifteen year old initiative whose proponents are committed to building a strong progrsseve community inside law schools and the legal profession. In his introduciton, Boyle argues that CLS has succeeded because it analyzes the inadequacies of rights talk, technocracy, and law and economics, and because it connects theory with the everyday experiences of lawyers and legal scholars. Articles present the CLS perspective on legal (...)reasoning, legal hisory, substantive law, legal practice, and social theory. (shrink)
The first part of this work analyses the universalist and the particularist conceptions of reasons. The second part projects this analysis to the legal domain. The author stresses that universalism and particularism regarding reasons are mutually exclusive theories linked to incompatible conceptions of norms, i.e. norms as strict universal conditionals and norms as defeasible conditionals. In giving an account of this tenet, different meanings of universality and defeasibility are explored. A parallel debate regarding reasons can be found in the (...)legal domain, where two contrasting categories of norms are usually distinguished: rules and principles. On this issue the author argues that the conception of legal reasons depends on the way in which this contrast between different kinds of legal norms is shaped. (shrink)
In this paper, I consider and question an influential position in Anglo-American philosophy of action which suggests that reasons for action must be internal, in other words that statements about reasons for actions must make reference to some fact or set of facts about the agent and her desires. I do so by asking whether legal requirements could be considered as reasons for actions and if in so considering them one must translate statements about legal requirements into statements (...) about the psychological state of the agent fulfilling those requirements. Since such a process of translation seems neither necessary nor desirable, I suggest that the crudest forms of the internalist position are found wanting. I discuss a more sophisticated form of internalism put forward by Bernard Williams and criticised by John McDowell. I extend McDowells argument to cover legal reasons and suggest that Williams argument fails to recognise that reasons for action entail standards of correctness that are irreducible to facts about individual character and motivation. I conclude with a brief description of the justificatory status of legal requirements. (shrink)
This essay partly builds on and partly criticizes a striking idea of Dieter Henrich. Henrich argues that Kant's distinction in the first Critique between the question of fact (quid facti) and the question of law (quid juris) provides clues to the argumentative structure of a philosophical "Deduction". Henrich suggests that the unity of apperception plays a role analogous to a legal factum. By contrast, I argue, first, that the question of fact in the first Critique is settled by the (...) Metaphysical Deduction, which establishes the purity of origin of the Categories, and, second, that in the second Critique, the relevant factum is the Fact of Reason, which amounts to the fact that the Moral Law is pure in origin. (shrink)
Reasoning Practically deals with a classical philosophical topic, the link between thought and action--how we think about what we do or ought to do, and how we move from thinking to doing. The essays by such renowned contributors as Donald Davidson, Barry Stroud, Cass R. Sunstein, Seyla Benhabib, and Gerald Dworkin, cover a range of issues raised when we link reason and practice. This collection connects state-of-the-art philosophical work with concrete issues in social life and political practice, making it (...) of interest not only to philosophers, but to political theorists, legal scholars, and any researcher interested in the practical application of reason. (shrink)
