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  1. The Irish Public Discourse on Covid-19 at the Intersection of Legislation, Fake News and Judicial Argumentation.Davide Mazzi - 2022 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 35 (3):1233-1252.
    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 (...)
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  2. On Universal Relevance in Legal Reasoning.Barbara Levenbook - 1984 - Law and Philosophy 3:1-23.
    The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. 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 (...)
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  3. New Essays on the Nature of Legal Reasoning.James Penner & Mark McBride (eds.) - 2022
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  4. Aa-Rm Wrestling: Comparing Analogical Approaches and Rule Models for Legal Reasoning.Adam Rigoni - 2021 - Legal Theory 27 (3):207-235.
    ABSTRACTLegal reasoning is commonly thought of as being based on either rules or analogies. More specifically, there is ongoing debate regarding whether precedential reasoning is best characterized as rule-based or analogical. This article continues that work by comparing recent and representative approaches from each camp, namely, Stevens's analogical model and the “rule-based” model of Horty and Rigoni. In the course of the comparison improvements on each approach are suggested and the improved models serve as the basis for the ultimate evaluation. (...)
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  5. Scientific Models of Legal Reasoning: Economics, Artificial Intelligence, and the Physical Sciences.Scott Brewer - 1998 - Routledge.
    This volume traces the modern critical and performance history of this play, one of Shakespeare's most-loved and most-performed comedies. The essay focus on such modern concerns as feminism, deconstruction, textual theory, and queer theory.
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  6. A Pluralistic Virtue‐Centered Theory of Judging.Gregory Bassham & Olivia Ostrowski - 2022 - Ratio Juris 35 (1):3-20.
    Ratio Juris, Volume 35, Issue 1, Page 3-20, March 2022.
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  7. The Federal Case for Judicial Review.Erin F. Delaney - forthcoming - Oxford Journal of Legal Studies.
    In ‘The Core of the Case Against Judicial Review’, Jeremy Waldron reset the terms of the debate over judicial review, concluding that a legislature outperformed a court as the institution best suited for resolving rights disagreements. Waldron’s arguments have had influence in both theory and practice, as even now, scholars and politicians in the United Kingdom draw on his work in debates over codifying the British constitution. But Waldron’s project is grounded in an unstated assumption—his political unit is a unitary (...)
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  8. Property, Analogy and Variety.Ben McFarlane & Simon Douglas - 2022 - Oxford Journal of Legal Studies 42 (1):161-186.
    How should a court respond if a party argues that, because her right to an intangible asset is a property right, the defendant is under a strict duty not to interfere with that intangible asset? Our view is that such a conclusion does not follow from the premise, and the argument is really one that the party’s right deserves protection as it is sufficiently analogous to a right to a tangible asset.
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  9. Ombudsmen as Courts.Stephen Thomson - 2022 - Oxford Journal of Legal Studies 42 (1):76-103.
    The non-judicial character of ombudsmen is viewed as their greatest asset, offering a more accessible, informal and flexible channel than courts for expressing grievances. Yet the Pensions Ombudsman has objected vigorously to its characterisation in the Chancery Division as ‘not a court’, pointing to a range of judicial qualities with which it has been statutorily invested. This raises the broader question of whether ombudsmen can be courts; a rarely considered characterisation. It is argued in this article that, although some ombudsmen (...)
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  10. Escepticismo ante las reglas y pedigree democrático de la dificultad contramayoritaria.Sebastián Reyes Molina - 2021 - DOXA 1 (44):219-232.
    The counter majoritarian difficulty is one of the main objections against the judicial review. In this paper, this objection is analyzed from the standpoint of the norm formulation/norm distinction. By stressing the distinc- tion between norm formulations and norms, I claim that when judicial review prevents the application of a norm to an individual case the counter majoritarian difficulty objection does not hold.
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  11. Sobre derecho y averiguación de la verdad.Sebastián Reyes Molina - 2017 - DOXA 1 (40):317-336.
    In the field of Evidence Law the relation between truth and law has been a somewhat non- debated topic in the past years. It is a given that such a connection exists and, it is understood as the notion of the ascertainment of the truth of disputed questions of fact through legal evidence. The thesis that I have reconstructed in this paper has been presented by Prof. Jordi Ferrer who grounds the connection between truth and law in the role of (...)
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  12. Evidential Legal Reasoning: Crossing Civil Law and Common Law Traditions.Jordi Ferrer Beltrán & Carmen Vázquez (eds.) - 2022 - Cambridge University Press.
    This book offers a transnational perspective of evidentiary problems, drawing on insights from different systems and legal traditions. It avoids the isolated manner of analyzing evidence and proof within each Common Law and Civil Law tradition. Instead, it features contributions from leading authors in the evidentiary field from a variety of jurisdictions and offers an overview of essential topics that are of both theoretical and practical interest. The collection examines evidence not only as a transnational field, but in a cross-disciplinary (...)
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  13. Legal Philosophy and the Study of Legal Reasoning.Torben Spaak - 2021 - Belgrade Law Review 69 (4).
    In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...)
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  14. A Probabilistic Analysis of Cross-Examination Using Bayesian Networks.Marcello Di Bello - 2021 - Philosophical Issues 31 (1):41-65.
    The legal scholar Henry Wigmore asserted that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth.’ Was Wigmore right? Instead of addressing this question upfront, this paper offers a conceptual ground clearing. It is difficult to say whether Wigmore was right or wrong without becoming clear about what we mean by cross-examination; how it operates at trial; what it is intended to accomplish. Despite the growing importance of legal epistemology, there is virtually no philosophical work that (...)
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  15. Does Legal Epistemology Rest on a Mistake? On Fetishism, Two‐Tier System Design, and Conscientious Fact‐Finding.David Enoch, Talia Fisher & Levi Spectre - 2021 - Philosophical Issues 31 (1):85-103.
    Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.
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  16. Objective Intentionalism and Disagreement.David Tan - 2021 - Legal Theory 27 (4):316-351.
    Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This paper argues that objectivism faces serious problems as it cannot deal with disagreement: Reasonable and rational people can often disagree as to what the interpretation of a (...)
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  17. Justice, Law, and Argument: Essays on Moral and Legal Reasoning.Ch Perelman - 1980 - Dordrecht and Boston: Reidel.
    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. 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 (...)
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  18. Informatics and the Foundations of Legal Reasoning.Zenon Bankowski, Ian White & Ulrike Hahn (eds.) - 1995 - Dordrecht, Netherland: Kluwer Academic Publishers.
    Informatics and the Foundations of Legal Reasoning represents a close collaboration between a wide range of disciplines and countries. Fourteen papers, together with a long analytical introduction by the editors, were selected from the contributions of legal theorists, computer scientists, philosophers and logicians who were members of an International Working Group supported by the European Commission. The Group was mandated to work towards determining how far the law is amenable to formal modeling, and in what ways computers might assist legal (...)
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  19. How Will I Know? An Epistemology of Lawyering.Emanuel Raul Tucsa - 2021 - Dissertation, York University
    What does anyone know after a trial, after a witness gives testimony, or even after seeking the counsel of a lawyer? Hopefully, the answer to these questions has something to do with the truth. Legal systems claim to have truth-seeking functions. Lawyers have specific roles in the procedures by which legal systems seek the truth and these roles are informed by the norms of legal practice. Yet, lawyers' relationship to truth and knowledge remains underexplored in the philosophy of lawyering. I (...)
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  20. Exclusionary Reasons, Virtuous Motivation, and Legal Authority.Andrew Jordan - 2018 - Canadian Journal of Law and Jurisprudence 31 (2):347-64.
    In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what (...)
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  21. Legal Evidence and Knowledge.Georgi Gardiner - forthcoming - In Clayton Littlejohn & Maria Lasonen Aarnio (eds.), The Routledge Handbook of the Philosophy of Evidence.
    This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does not suffice for legal (...)
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  22. Legal Rules, Legal Reasoning, and Nonmonotonic Logic.Adam W. Rigoni - 2015 - Dissertation, University of Michigan
    This dissertation develops, justifies, and examines the jurisprudential implications of a non-monotonic theory of common law legal reasoning. Legal rules seem to have exceptions but identifying all of them is difficult. This hinders attempts to formalize legal rules using classical logics. Non-monotonic logics allow defeasible inference, permitting rules that hold generally but can be defeated in the presence of exceptions. This ameliorates the problem of characterizing all exceptions to a rule, because exceptions can be added piecemeal while the rule remains. (...)
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  23. Proportionality as Procedure: Strengthening the Legitimate Authority of the UN Committee on Economic, Social and Cultural Rights.Antoinette Scherz & Alain Zysset - 2021 - Global Constitutionalism 10 (3):524-546.
    The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve (...)
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  24. Virtue, Emotion and Imagination in Law and Legal Reasoning.Amalia Amaya & Maksymillian Del Mar (eds.) - 2020 - Hart Publishing.
    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 (...)
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  25. Arguments and Stories in Legal Reasoning.Gianluca Andresani & Tony Ward - 2020 - Archiv für Rechts- Und Sozialphilosophie 106 (1):75-90.
    We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies, has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. (...)
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  26. Finding Written Law.Benjamin L. S. Nelson - manuscript
    In this paper I argue that textualism is far less attractive as a theory of written law than some of its modern proponents think. For it is not usually sensible to expect the grammatical meaning of a provision to determine its appropriate legal meaning. Factors that are unrelated to grammar in the identification of law (e.g., legal theory, context) do too much of the work. **Draft -- acknowledgments welcome, but please do not cite.**.
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  27. El lugar de la lógica en el razonamiento jurídico.Miguel Garcia-Godinez - 2019 - In Gerardo Ramirez & Manuel Jimenez (eds.), Ensayos de retórica jurídica. Mexico City, CDMX, Mexico: pp. 171-180.
  28. Asimetría constitucional y los límites del balanceo. Una nota crítica a la postura de Matthias Klatt.Miguel Garcia-Godinez - forthcoming - In Diana Gonzalez & Ruben Sanchez (eds.), El test de proporcionalidad, convergencias y divergencias. Mexico City, CDMX, Mexico:
  29. Bentham: Our Contemporary?Gianluca Andresani & Natalina Stamile - 2020 - Revista da Faculdade de Direito UFPR 65 (3):173-189.
    This article aims to evaluate the contribution of Bentham’s ideas to the jurisprudential debate in view of their relevance vis a vis their contemporary reception. The focus is on Bentham’s revolutionary idea of publicity with its spill-over effects on contemporary debates on the rule of law and accountable and transparent governance. As far as the method is concerned, after having examined Bentham’s ideas on the rule of law and the debate they raised, the focus in the second section of this (...)
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  30. Precedent, Rules and the Standard Picture.David Tan - 2016 - Australian Journal of Legal Philosophy 41:81-115.
    In 'The Standard Picture and its Discontents', Mark Greenberg remarks that the typical way that legal theorists think about legal obligations does not sit well with the way the common law works. I argue that Alexander's and Sherwin’s Rule Model of precedent can deal with all the problems that Greenberg accuses the Standard Picture of having. Nonetheless, I further argue that combining the Standard Picture and the Rule Model ultimately leads to another problem: the inability of the Standard Picture – (...)
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  31. Rebooting the New Evidence Scholarship.John R. Welch - 2020 - International Journal of Evidence and Proof 24 (4):351-373.
    The new evidence scholarship addresses three distinct approaches: legal probabilism, Bayesian decision theory and relative plausibility theory. Each has major insights to offer, but none seems satisfactory as it stands. This paper proposes that relative plausibility theory be modified in two substantial ways. The first is by defining its key concept of plausibility, hitherto treated as primitive, by generalising the standard axioms of probability. The second is by complementing the descriptive component of the theory with a normative decision theory adapted (...)
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  32. "Pragmatism and Jewish Thought: Eliezer Berkovits’s Philosophy of Halakhic Fallibility".Nadav Berman S. - 2019 - Journal of Jewish Thought and Philosophy 27 (1):86-135.
    In classical American pragmatism, fallibilism refers to the conception of truth as an ongoing process of improving human knowledge that is nevertheless susceptible to error. This paper traces appearances of fallibilism in Jewish thought in general, and particularly in the halakhic thought of Eliezer Berkovits. Berkovits recognizes the human condition’s persistent mutability, which he sees as characterizing the ongoing effort to interpret and apply halakhah in shifting historical and social contexts as Torat Ḥayyim. In the conclusion of the article, broader (...)
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  33. Probabilistic Knowledge.Sarah Moss - 2018 - Oxford University Press.
    Traditional philosophical discussions of knowledge have focused on the epistemic status of full beliefs. In this book, Moss argues that in addition to full beliefs, credences can constitute knowledge. For instance, your .4 credence that it is raining outside can constitute knowledge, in just the same way that your full beliefs can. In addition, you can know that it might be raining, and that if it is raining then it is probably cloudy, where this knowledge is not knowledge of propositions, (...)
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  34. Constitutional Directive Principles.Lael K. Weis - 2017 - Oxford Journal of Legal Studies 37 (4):916-945.
    This article is the first step toward developing a general and systematic account of constitutional directive principles. Directive principles are an increasingly common way of constitutionally entrenching social values and provide an alternative to conventional rights provisions that has yet to be adequately understood. They place binding but typically non-justiciable obligations on the state to promote social values, and they are designed to be given effect by means other than direct judicial enforcement—predominantly, by legislation. This innovative design inserts an element (...)
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  35. Ignorance and Semantic Tableaux: Aliseda on Abduction.John Woods - 2007 - Theoria: Revista de Teoría, Historia y Fundamentos de la Ciencia 22 (3):305-318.
    This is an examination of similarities and differences between two recent models of abductive reasoning. The one is developed in Atocha Aliseda’s Abductive Reasoning: Logical Investigations into the Processes of Discovery and Evaluation. The other is advanced by Dov Gabbay and the present author in their The Reach of Abduction: Insight and Trial. A principal difference between the two approaches is that in the Gabbay-Woods model, but not in the Aliseda model, abductive inference is ignorance-preserving. A further differ-ence is that (...)
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  36. The Medicolegal Physical Examination.Elliot L. Sagall - 1980 - Journal of Law, Medicine and Ethics 8 (5):10-12.
  37. It Must Have Been Him: Coherence Effects Within the Legal System.Jonathan N. Carbone - unknown
    The present series of studies examine how jurors and public defenders evaluate different pieces of evidence and integrate them into a coherent conclusion within the context of a criminal case. Previous research has shown that in situations where both sides of the case are compelling, decision-makers nevertheless come to highly confident and polarized decisions, called coherence shifts. The present research sought to expand on coherence effects, improve upon the methodology of previous studies, and explore potential moderators of coherence. In Study (...)
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  38. Conflicting Evidence and Decisions by Agency Professionals: An Experimental Test in the Context of Merger Regulation.Bruce Lyons, Gordon Douglas Menzies & Daniel John Zizzo - 2012 - Theory and Decision 73 (3):465-499.
    Many important regulatory decisions are taken by professionals employing limited and conflicting evidence. We conduct an experiment in a merger regulation setting, identifying the role of different standards of proof, volumes of evidence, cost of error and professional or lay decision making. The experiment was conducted on current practitioners from 11 different jurisdictions, in addition to student subjects. Legal standards of proof significantly affect decisions. There are specific differences because of professional judgment, including in how error costs and volume of (...)
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  39. Fa Lü Luo Ji Xue.Qi Yong - 2009 - Wu Nan Tu Shu Chu Ban Gu Fen You Xian Gong Si.
    本书讲述了逻辑基础知识和有关逻辑知识在法学领域的应用。内容包括概念的一般逻辑知识及其应用、命题的一般特征、性质命题、复合命题、规范命题、推理的概述等等.
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  40. D-Theories, Discretion, and the Justification of Adjudication.Barbara Baum Levenbook - 1980 - Social Theory and Practice 5 (3-4):331-345.
    This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune to (...)
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  41. Probability: The Logic of the Law—a Response.David Hodgson - 1995 - Oxford Journal of Legal Studies 15 (1):51-68.
Descriptive Accounts of Legal Reasoning
  1. Legislation as Legal Interpretation: The Role of Legal Expertise and Political Representation.Attila Mráz - 2022 - In Francesco Ferraro & Silvia Zorzetto (eds.), Exploring the Province of Legislation: Theoretical and Empirical Perspectives in Legisprudence. Dordrecht: pp. 33-56.
    While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to explore some implications of (...)
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  2. On Universal Relevance in Legal Reasoning.BarbaraBaum Levenbook - 1984 - Law and Philosophy 3 (1):1 - 23.
    The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. 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 (...)
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  3. Legal Reasoning and Legal Theory Revisited.Fernando Atria - 1999 - Law and Philosophy 18 (5):537-577.
    This article deals with the relation between a theory of law and a theory of legal reasoning. 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 legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, (...)
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  4. Emotional Legal Arguments and a Broken Leg.Damasceno-Morais Rubens - unknown
    We intend to examine ways that emotions may be intertwined within argumentative legal discourses. From the transcript of a brief trial in a Court of Appeal in Brazil we have the opportunity to observe how the emotional and rational reasoning live together in a deliberation among magistrates. “The leg broken case” allow us to examine how judges define the value of compensation to be paid in cases of moral damage. We show that not only technical arguments are the compounds of (...)
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  5. Law and Exclusionary Reasons.Larry Alexander - 1990 - Philosophical Topics 18 (1):5-22.
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  6. Moral and Legal Reasoning.L. Jonathan Cohen & Samuel Stoljar - 1982 - Philosophical Review 91 (1):141.
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  7. Persuasive Authority in the Law.Grant Lamond - 2010 - The Harvard Review of Philosophy 17 (1):16-35.
    This article discusses the nature of persuasive authorities in the common law, and argues that many of them are best understood in terms of their (being regarded) as having theoretical rather than practical authorities for the courts that cite them. The contrast between theoretical and practical authority is examined at length in order to support the view that the treatment of many persuasive authorities by courts is more consistent with this view. Finally, it is argued that if persuasive authorities are (...)
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  8. Legal Reasoning and Legal Theory.Neil MacCormick - 1994 - Clarendon Press.
    What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.
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  9. The Judicial Community.Christopher Kutz - 2001 - Philosophical Issues 11 (1):442-469.
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1 — 50 / 990