Abstract.Legal philosophy must consider the way in which laws function as reasons for action. “Simple positivism” considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of “sophisticated positivism,” argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how (...) character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti‐positivistic legal theory. (shrink)

The article considers two different interpretations of the reason model of precedent pioneered by John Horty. On a plausible interpretation of the reason model, past cases provide reasons to prioritize reasons favouring the same outcome as a past case over reasons favouring the opposing outcome. Here I consider the merits of this approach to the role of precedent in legal reasoning in comparison with a closely related view favoured by some legal theorists, according to which past cases provide reasons for (...) undercutting (or ‘excluding’) reasons favouring the opposing outcome. After embedding both accounts within a general default logic, I note some important differences between the two approaches that emerge as a result of plausible distinctions between rebutting and undercutting defeat in formal models of legal reasoning. These differences stem from the ‘preference independence’ of undercutting defeat. Undercutting reasons succeed in defeating opposing reasons irrespective of their relative strength. As a result, the two accounts differ in their account of the way in which precedents constrain judicial reasoning. I conclude by suggesting that the two approaches can be integrated within a single model, in which the distinction between undercutting and rebutting defeat is used to account for the distinction between strict and persuasive forms of precedential constraint. (shrink)

Surgical innovation involves practices, such as new devices, technologies, procedures, or applications, which are novel and untested. Although innovative practices are believed to offer an improvement on the standard surgical approach, they may prove to be inefficacious or even dangerous. This article considers how surgeons considering innovation should reason in the conditions of uncertainty that characterize innovative surgery. What attitude to the unknown risks of innovative surgery should they take? The answer to this question involves value judgments about the acceptability (...) of risk taking when satisfactory scientific information is not available. This question has been confronted in legal contexts, where risk aversion in the form of the precautionary principle has become increasingly influential as a regulatory response to innovative technologies that pose uncertain future hazards. This article considers whether it is appropriate to apply a precautionary approach when making decisions about innovative surgery. (shrink)

The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft (...) or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called “Positivists” or merely “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism. (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)

I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. (...) I explain why under the holistic approach the common law contains principles as well as rules, and I consider the two approaches in the light of the requirement of the rule of law, and I show how the holistic approach explains a version of the policy/principle distinction. (shrink)

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

Background/ObjectiveJudicial decisions must rest on formal reasoning. Nevertheless, informal reasoning sources were observed in judicial judgment making. Literature has identified sexual aggression cases as the most favorable for informal reasoning. Thus, a field study was designed with the aim of assessing the incidence and effects of cognitive and motivational biases in judicial agents in a case to rape to a woman.MethodsAs for this, Chilean judicial agents assessed an allegation of sexual assault in a case where the perpetrator was known or (...) unknown to the victim. The judicial agents answered to a measure of the myths about sexual aggression, the attribution of responsibility to complainant, the attribution of responsibility to accused, the attribution of credibility to the complainant testimony, the attribution of a nature of a rape to the alleged facts and an estimation of the probability of false/unfounded accusations.ResultsThe results revealed an estimation of false/unfounded accusations of sexual aggression significantly higher than the mean of the best estimates, but into the upper limit of the best estimates; that the studied population did not share, in general, the myths about sexual aggression; and that the sources of attributional biases were driven in favor and against the complainant. Nevertheless, the case study showed that a large number of judicial agents participated of an overestimation of the probabilities of false or unfounded allegations, and of the myths about sexual aggressions and of attributional biases against the complainant.ConclusionIn conclusion, informal reasoning sources were observed in judicial agents when only formal reasoning should prevail. Thus, judicial agents should be trained to control these sources of bias substituting them by formal reasoning. (shrink)

In this chapter, we begin by sketching in the broadest possible strokes the ideas behind two formal systems that have been introduced with to goal of explicating the ways in which reasons interact to support the actions and conclusions they do. The first of these is the theory of defeasible reasoning developed in the seminal work of Pollock; the second is a more recent theory due to Horty, which adapts and develops the default logic introduced by Reiter to provide an (...) account of reasons. However, the implementations are complex enough, in both cases, to prevent anything more than this sketch. And we would not want to give the impression that we think that work on the logic of reasons must follow the path mapped out in either of these theories—indeed, we feel that the field is wide open. In the remainder of the chapter, therefore, will concentrate on a number of issues bearing on the logic of reasons that are either not treated in the work of Pollock and Horty, or whose treatment there is, we feel, either inadequate or incomplete. These are: first, the question of whether it is necessary to understand logical interactions among reasons themselves, rather than simply between reasons and the actions or conclusions they support, and if so, what principles might govern these interactions; second, priority relations among reasons and the notion of reason accrual; and third, some problems posed by undercutting defeat. (shrink)