Legal Judgment Summarization (LJS) can highly summarize legal judgment documents, improving judicial work efficiency in case retrieval and other occasions. Legal judgment documents are usually lengthy; however, most existing LJS methods are directly based on general text summarization models, which cannot handle long texts effectively. Additionally, due to the complex structural characteristics of legal judgment documents, some information may be lost by applying only one single kind of summarization model. To address these issues, we propose an (...) integrated summarization method which leverages both semantic and structural information to improve the quality of LJS. Specifically, legal judgment documents are firstly segmented into three relatively short parts according to their specific structure. We propose an extractive summarization model named BSLT and an abstractive summarization model named LPGN by adopting Lawformer as the encoder. Lawformer is a new pre-trained language model for long legal documents, which specializes in capturing long-distance dependency and modeling legal semantic features. Then, we adopt different models to summarize the corresponding part regarding its structural characteristics. Finally, the obtained summaries are integrated to generate a high-quality summary involving semantic and structural information. We conduct comparative experiments to evaluate the performance of our model. The results show that our model outperforms the baseline model LEAD-3 by 14.78% on the mean ROUGE score, which demonstrates our method is effective in LJS and is prospected to be applied to assist other tasks in legal artificial intelligence. (shrink)

Many legal theorists see legal judgment as a largely professional or technical task. This is not how law sees itself. When looked at from the perspective of the engaged judge, law requires from us that we arrive at a certain internal governance of our thoughts and emotions. Legal scholarship and legal procedure tell us that law creates true reasons that override other, personal, reasons, even those of the utmost importance to us. A philosophical understanding of law (...) requires a distinct argument that explains how such overriding reasons can be associated with the law and how there can be a personal duty to adapt our reasoning when we make authoritative legal judgments in order to change the lives of others. The philosophy of law needs to explain how legal judgment can be a form of self-mastery. (shrink)

The article addresses three theses on judgment in general and legal judgment in particular, starting from Peirce’s and Dewey’s claims about them. The first thesis, ontological, concerns the content of an act of judgment and says that judgment is about an object instantiating a property (not about a property instantiated by an object). The second, alethic, concerns the relation between judgment and truth and says that judgment is the attribution of a truth value to a proposition. The third, genetic, (...) deals with the moments of judgment claiming it is a process susceptible of being articulated in such moments. Its fundamental moments are 1) hypothesis, 2) inquiry, 3) result. The article claims that the three theses interconnect and hold for both judgment in general and legal judgment, given that the latter is a model of the former; so a complex conception of judgment is articulated, discussing also its relations with assertion and inference. (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.

Is the science of moral cognition usefully modelled on aspects of Universal Grammar? Are human beings born with an innate 'moral grammar' that causes them to analyse human action in terms of its moral structure, with just as little awareness as they analyse human speech in terms of its grammatical structure? Questions like these have been at the forefront of moral psychology ever since John Mikhail revived them in his influential work on the linguistic analogy and its implications for jurisprudence (...) and moral theory. In this seminal book, Mikhail offers a careful and sustained analysis of the moral grammar hypothesis, showing how some of John Rawls' original ideas about the linguistic analogy, together with famous thought experiments like the trolley problem, can be used to improve our understanding of moral and legal judgement. (shrink)

In common law jurisdictions, legal professionals cite facts and legal principles from precedent cases to support their arguments before the court for their intended outcome in a current case. This practice stems from the doctrine of stare decisis, where cases that have similar facts should receive similar decisions with respect to the principles. It is essential for legal professionals to identify such facts and principles in precedent cases, though this is a highly time intensive task. In this (...) paper, we present studies that demonstrate that human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles. We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision and recall figures of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall κ\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$\kappa$$\end{document} of 0.72 with the human-annotated gold standard. (shrink)

Legal Judgment Prediction (LJP) is a typical application of Artificial Intelligence in the intelligent judiciary. Current research primarily focuses on automatically predicting law articles, charges, and terms of penalty based on the fact description of cases. However, existing methods for LJP have limitations, such as neglecting document structure and ignoring case similarities. We propose a novel framework called Graph Contrastive Learning with Augmentation (GCLA) for legal judgment prediction to address these issues. GCLA constructs trainable document-level graphs for fact (...) description, capturing local and global context through sentence-level subgraphs. Graph augmentation enhances robustness. We introduce a comparison case relation perspective, using graph contrastive learning to model case-text label relationships effectively. Experimental results on real-world datasets demonstrate the competitive performance of GCLA. (shrink)

Legal Judgment Prediction (LJP) is an essential component of legal assistant systems, which aims to automatically predict judgment results from a given criminal fact description. As a vital subtask of LJP, researchers have paid little attention to the numerical LJP, i.e., the prediction of imprisonment and penalty. Existing methods ignore numerical information in the criminal facts, making their performances far from satisfactory. For instance, the amount of theft varies, as do the prison terms and penalties. The major challenge (...) is how the model can obtain the ability of numerical comparison and magnitude perception, e.g., 400 < 500 < 800, 500 is closer to 400 than to 800. To this end, we propose a judicial knowledge-enhanced magnitude-aware reasoning architecture, called NumLJP, for the numerical LJP task. Specifically, we first implement a contrastive learning-based judicial knowledge selector to distinguish confusing criminal cases efficiently. Unlike previous approaches that employ the law article as external knowledge, judicial knowledge is a quantitative guideline in real scenarios. It contains many numerals (called anchors) that can construct a reference frame. Then we design a masked numeral prediction task to help the model remember these anchors to acquire legal numerical commonsense from the selected judicial knowledge. We construct a scale-based numerical graph using the anchors and numerals in facts to perform magnitude-aware numerical reasoning. Finally, the representations of fact description, judicial knowledge, and numerals are fused to make decisions. We conduct extensive experiments on three real-world datasets and select several competitive baselines. The results demonstrate that the macro-F1 of NumLJP improves by at least 9.53% and 11.57% on the prediction of penalty and imprisonment, respectively. (shrink)

Street art and graffiti are on the rise and their problematic relationship with the law is becoming an increasingly pressing issue. This paper considers a series of high profile street art controversies involving famous street artists Banksy and Alice Pasquini as cases studies for illuminating such a relationship. First, by discussing the “Banksy’s Law” – a “law” protecting street artworks in the style of Banksy while condemning graffiti – and its perceived arbitrariness, I investigate what I call the structural differences (...) between aesthetic and legal judgments. While not denying some continuity in reasoning about the law and the arts, I argue that legal judgments possess a degree of formality that cannot be found in their aesthetic counterpart. Second, in expanding my discussion, I also maintain that aesthetic considerations should not function as overriding reasons in legal determinations. By being illegal, many street artworks and graffiti acquire subversive power. If deprived of the possibility of challenging the law because of their aesthetic value, these art forms would lose much of their political value. And, more generally, a world where artworks cannot challenge the law is a world where the arts are rather superficial forms of entertainment. (shrink)

The aim of the dissertation is to formulate a research program in moral cognition modeled on aspects of Universal Grammar and organized around three classic problems in moral epistemology: What constitutes moral knowledge? How is moral knowledge acquired? How is moral knowledge put to use? Drawing on the work of Rawls and Chomsky, a framework for investigating -- is proposed. The framework is defended against a range of philosophical objections and contrasted with the approach of developmentalists like Piaget and Kohlberg. (...) ;One chapter consists of an interpretation of the analogy Rawls draws in A Theory of Justice between moral theory and generative linguistics. A second chapter clarifies the empirical significance of Rawls' linguistic analogy by formulating a solution to the problem of descriptive adequacy with respect to a class of commonsense moral intuitions, including those discussed in the trolley problem literature originating in the work of Foot and Thomson. Three remaining chapters defend Rawls' linguistic analogy against some of its critics. In response to Hare's objection that Rawls' conception of moral theory is too empirical and insufficiently normative, it is argued that Hare fails to acknowledge both the centrality of the problem of empirical adequacy in the history of moral philosophy and the complexity of Rawls' approach to the problem of normative adequacy. In response to Nagel's claim that the analogy between moral theory and linguistics is false because whatever native speakers agree on is English, but whatever ordinary men agree in condemning is not necessarily wrong, it is argued that the criticism ignores both Rawls' use of the competence-performance distinction and the theory-dependence of the corresponding distinction in linguistics. In response to Dworkin's claim that Rawls' conception of moral theory is incompatible with naturalism and presupposes constructivism, it is argued that Dworkin's distinction between naturalism and constructivism represents a false antithesis; neither is an accurate interpretation of the model of moral theory Rawls describes in A Theory of Justice. The thesis concludes by situating Rawls' linguistic analogy within the context of broader debates in metaethics, democratic theory, natural law theory, and the theory of moral development. (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.

This paper presents the first dataset for Japanese Legal Judgment Prediction (LJP), the Japanese Tort-case Dataset (JTD), which features two tasks: tort prediction and its rationale extraction. The rationale extraction task identifies the court’s accepting arguments from alleged arguments by plaintiffs and defendants, which is a novel task in the field. JTD is constructed based on annotated 3477 Japanese Civil Code judgments by 41 legal experts, resulting in 7978 instances with 59,697 of their alleged arguments from the involved (...) parties. Our baseline experiments show the feasibility of the proposed two tasks, and our error analysis by legal experts identifies sources of errors and suggests future directions of the LJP research. (shrink)

Legal judgments are complex in nature and hence a brief summary of the judgment, known as a headnote , is generated by experts to enable quick perusal. Headnote generation is a time consuming process and there have been attempts made at automating the process. The difficulty in interpreting such automatically generated summaries is that they are not coherent and do not convey the relative relevance of the various components of the judgment. A legal judgment can be segmented into (...) coherent chunks based on the rhetorical roles played by the sentences. In this paper, a comprehensive system is proposed for labeling sentences with their rhetorical roles and extracting structured head notes automatically from legal judgments. An annotated data set was created with the help of legal experts and used as training data. A machine learning technique, Conditional Random Field, is applied to perform document segmentation by identifying the rhetorical roles. The present work also describes the application of probabilistic models for the extraction of key sentences and composing the relevant chunks in the form of a headnote. The understanding of basic structures and distinct segments is shown to improve the final presentation of the summary. Moreover, by adding simple additional features the system can be extended to other legal sub-domains. The proposed system has been empirically evaluated and found to be highly effective on both the segmentation and summarization tasks. The final summary generated with underlying rhetorical roles improves the readability and efficiency of the system. (shrink)

This article develops some conceptual correlations between Kant’s theory of aesthetic judgment and the common law tradition of legal judgment. The article argues that legal judgment, like aesthetic judgment, is best conceived in terms of intersubjective validity rather than objective truth. Understanding the parallel between aesthetic and legal judgment allows us to appreciate better the relationship between subjectivity and intersubjectivity, the individual and the community, in the formulation and communication of judgments, which combine a personal response and (...) a reasoned determination intended for a discrete audience. The article frames and pursues these themes in relation to four core concepts in Kant’s aesthetic theory: judgment, communication, community, and disinterestedness. Through sustained comparison and application of these concepts in aesthetic judgment and legal judgment, the article provides a conception of judging that more accurately captures the common law role and relationship of the individual judge and the institutional judiciary as integral parts of the broader legal and political community. (shrink)

In this paper we focus on the difficulty in judging what is called covert hate speech. We emphasize the need for a multidimensional framework when analysing covert hate speech in situ, and the need to consider the multifaceted dimension of such speech act to assess its performativity. To explain such need, we apply the test of the Rabat Plan of Action and adopt a pragmatic perspective to analyse a specific covert hate speech act, considering such speech act as both an (...) expressive and potentially performative act. We focus on the prosecution of hate speech against a woman holding a poster during an anti-safe pass demonstration. Her poster inferred a link between conspiracy theory, the government strategy addressing the Covid pandemic and many other collectives, primarily the Jewish community. Our analysis of the sign adopts a radically context-dependent methodology combining a pragmatic approach and the Rabat Plan of Action test. We then contrast our analysis with the legal and media perspective on the issue. We conclude by suggesting the benefit of integrating pragmatic analysis with application of normative set of rules such as the Rabat Plan of Action test, even though the fluidity of meaning always poses a challenge to any authority tasked with judging such communicative events. (shrink)

Are there universally valid moral principles that dictate what's right regardless of what the consensus is within a particular society? Or are moral judgments culturally relative, ultimately dictated by conventions and practices which vary among societies? Practices and Principles takes up the debate between cultural relativists and universalists, and the related debate in political philosophy between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel. Rejecting uncritical deference to social practice, I acknowledge the (...) need for standards for judging existing practices; but, I argue, the fact that there are principles we can use to criticize practices does not mean we can ignore social practice when making ethical and legal judgments. While defending principled criticism,I show the important role social practices have both in selecting and applying principles. I show precisely how both principles and practices interact through three case studies: promises, contract law, and the fourth amendment issue of whether an expectation of privacy is reasonable. When we turn to particular instances of ethical and legal judging we find that it is appropriate sometimes to appeal to principles that seem foreign to a culture to criticize aspects of that culture, sometimes to appeal to principles immanent in a culture and its practices, sometimes to defer to expectations arising from practices without subjecting the practices to critical scrutiny. I reject simplifying dichotomies that force us to choose between either practices or principles, universalism or relativism, and liberalism or communitarianism. (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.

While it seems clear that the shari’ah had a formative influence on property rights, public space and land use, the primary aim of this book is to study what implications the practice of the Maliki school of Islamic law have for the inhabitants of the Islamic city.

The aim of this paper is to reflect and comment on certain scenes from Stanley Kramer’s film Judgment at Nuremberg based in the Case Method methodology used in university lessons to teach Law and Ethics. The judgement which this film addresses is extraordinary, being one in which judges themselves were judged by other judges; as such, it presents a perfect example through which to think about the social responsibility of the legal profession with respect to the application of (...) Law and what relationship this has to broader moral and ethical considerations of the value of human rights. (shrink)

Past research showed that the ability to focus on one’s internal states positively correlates with the self-regulation of behavior in situations that are accompanied by somatic and/or physiological changes, such as emotions, physical workload, and decision-making. The analysis of moral oriented decision-making can be the first step for better understanding the legal reasoning carried on by the main players in the field, as lawyers are. For this reason, this study investigated the influence of the decision context and interoceptive manipulation (...) on the moral decision-making process in the legal field gathering the responses of two groups of lawyers. A total of 20 lawyers were randomly divided into an experimental group, which was explicitly required to focus the attention on its interoceptive correlates, and a control group, which only received the general instruction to perform the task. Both groups underwent a modified version of the Ultimatum Game, where are presented three different moral conditions and three different offers. Results highlighted a significant increase of Acceptance Rate in those offers that should be considered more equal than fair or unfair ones, associated with a general increase of Reaction Times in the equal offers. Furthermore, the interoceptive manipulation oriented the Lawyers toward a more self-centered decision. This study shows how individual, situational, contextual, and interoceptive factors may influence the moral decision-making of lawyers. Future research in the so-called Neurolaw field is needed to replicate and expand current findings. (shrink)

We present an annotation scheme describing the argument structure of judgement documents, a central construct in Japanese law. To support the final goal of this work, namely summarisation aimed at the legal professions, we have designed blueprint models of summaries of various granularities, and our annotation model in turn is fitted around the information needed for the summaries. In this paper we report results of a manual annotation study, showing that the annotation is stable. The annotated corpus we (...) created contains 89 documents. We also designed and implemented the first two stages of an algorithm for the automatic extraction of argument structure, and present evaluation results. (shrink)

Consumers’ engagement in morally-questionable behaviors poses a serious threat to firms. To further the understanding of consumers’ behavior, this study explores the association and conflicts between their ethical and legal judgments. In addition, it examines the way consumers’ judgments depend on their mind-sets and the legal liability criterion of action. In two experiments, participants were asked to judge the ethicality and legality of consumers’ morally-questionable behaviors. Behavior activity and participants’ mind-sets were manipulated. The results show that consumers are (...) more likely to judge a behavior to be legal when they consider it ethical than when they consider it unethical. Nevertheless, conflicts between ethical and legal judgments are prevalent. Furthermore, ethical judgments, legal judgments, and the occurrence of conflicts between them depend on activity and on consumers’ mind-sets. Finally, consumers report uncertainty about the ethicality and legality of a wide range of morally-questionable behaviors. Thus, the results paint a picture of individuals who perceive the law to be often beyond their reach or in conflict with their ethical principles. They portray both ethical and legal judgments as dynamically-changing, subjective, and context-dependent. Theoretical contribution and business applications are discussed. (shrink)

The automatic prediction of court case judgments using Deep Learning and Natural Language Processing is challenged by the variety of norms and regulations, the inherent complexity of the forensic language, and the length of legal judgments. Although state-of-the-art transformer-based architectures and Large Language Models (LLMs) are pre-trained on large-scale datasets, the underlying model reasoning is not transparent to the legal expert. This paper jointly addresses court judgment prediction and explanation by not only predicting the judgment but also providing (...) legal experts with sentence-based explanations. To boost the performance of both tasks we leverage a legal named entity recognition step, which automatically annotates documents with meaningful domain-specific entity tags and masks the corresponding fine-grained descriptions. In such a way, transformer-based architectures and Large Language Models can attend to in-domain entity-related information in the inference process while neglecting irrelevant details. Furthermore, the explainer can boost the relevance of entity-enriched sentences while limiting the diffusion of potentially sensitive information. We also explore the use of in-context learning and lightweight fine-tuning to tailor LLMs to the legal language style and the downstream prediction and explanation tasks. The results obtained on a benchmark dataset from the Indian judicial system show the superior performance of entity-aware approaches to both judgment prediction and explanation. (shrink)

이 글은 의료 행위의 중요한 경우에서 합리적인 의사결정을 내리기 위해서는 법적 판단과 함께 도덕적 판단 또한 반드시 고려되어야 하는 이유를 논증한다. 이러한 목적을 이루기 위해 먼저 한 사고실험을 통해 의료 행위에서 초래될 수 있는 업무상 과실치사상죄 적용에 대한 법적 판단을 분석함으로써 행위자의 법적 책임을 최소화할 수 있는 결정이 무엇인지 논증한다. 다음으로 도덕의 관점에서 그 문제를 분석할 경우 법적 판단과 다른 결론을 도출할 수 있음을 논증함으로써 중요한 의료적 결정을 내릴 때 법적 판단과 함께 도덕적 판단을 함께 고찰해야 하는 이유를 논증한다. 우리가 (...) 가진 도덕 감정은 일반적으로 도덕적으로 선하거나 옳은 행위를 권장하고 도덕적으로 악하거나 그른 행위를 금지한다. 하지만 우리가 몸담고 있는 현실 세계에서 일어나는 다양한 사건들 중에는 도덕적으로 최선의 행위를 선택하는 것이 아닌, 도덕적인 ‘차악’의 행위를 선택해야 할 처지에 놓이기도 한다. 이러한 경우는 ‘나를 보호하기 위한 실천적 선택’의 기로에 놓인 경우로 나타난다. 즉 우리는 그러한 순간에 자신의 현실적인 이익에는 부합하지만 도덕적인 부담을 감수해야 하는 선택을 하거나, 반대로 도덕적인 부담으로부터 벗어나기 위해 자신의 현실적인 이익을 포기해야 할 수 있다. 그리고 행위자가 행한 행위를 오직 법과 도덕에 의해서만 평가한다면, 그 행위자가 중대한 결정을 내려야 하는 경우는 법적 판단과 도덕적 판단이 충돌하는 경우라고 할 수 있다. 즉 그 행위자는 도덕적으로 문제될 것은 없지만 법적으로 처벌을 받을 수 있는 경우, 반대로 도덕적으로 비난받을 수 있지만 법적으로 문제가 없는 경우 중에서 한 행위를 선택해야 할 경우 중대한 결정을 내려야 한다. 법적 책임을 최소화하는 결정이 도덕적으로는 정당화될 수 없는 비판적인 사례를 분석함으로써 의료 행위에서 윤리적 분석과 숙고가 요청되는 이유를 강조할 수 있다. (shrink)

Summarization of legal case judgement documents is a practical and challenging problem, for which many summarization algorithms of different varieties have been tried. In this work, rather than developing yet another summarization algorithm, we investigate if intelligently ensembling (combining) the outputs of multiple (base) summarization algorithms can lead to better summaries of legal case judgements than any of the base algorithms. Using two datasets of case judgement documents from the Indian Supreme Court, one with extractive gold (...) standard summaries and the other with abstractive gold standard summaries, we apply various ensembling techniques on summaries generated by a wide variety of summarization algorithms. The ensembling methods applied range from simple voting-based methods to ranking-based and graph-based ensembling methods. We show that many of our ensembling methods yield summaries that are better than the summaries produced by any of the individual base algorithms, in terms of ROUGE and METEOR scores. (shrink)

Carl Schmitt and the Problem of the Realization of Law 1. The famous pithy aphorisms that Carl Schmitt used to open his major works - 'the sovereign is he who decides on the exception', 'the concept of the state presupposes the concept of the political', etc. - have become a part of the common discourse of contemporary scholarship on politics and the law. The theoretical framework that animates these slogans, however, has remained somewhat opaque. It has often been argued that (...) there is no such framework, that Schmitt was a situational thinker whose works are best understood as interventions in concrete political debates that do not add up to a grand theoretical vision. (shrink)

In the legal judgement reason demands that it extend itself beyond the mere subjective limits of the self in order that it might fashion a judgement that speaks for the other. This is the universal necessity of the judgement. No claim of truth or the moral law can guarantee that others will agree with this judgement: thus disputation is the risk which reason takes in order to judge at all. The author examines this audacity of (...) judgement by reference to Kant's autonomy of reason, which risks itself in the thought that thinks. (shrink)

Randomization procedures are used in legal and statistical applications, aiming to shield important decisions from spurious influences. This article gives an intuitive introduction to randomization and examines some intended consequences of its use related to truthful statistical inference and fair legal judgment. This article also presents an open-code Java implementation for a cryptographically secure, statistically reliable, transparent, traceable, and fully auditable randomization tool.

The principle of legal paternalism justifies state coercion to protect individuals from self-inflicted harm, or in its extreme version, to guide them, whether they like it or not, toward their own good. Parents can be expected to justify their interference in the lives of their children on the ground that “daddy knows best.” legal paternalism seems to imply that since the state often can know the interests of individual citizens better than the citizens know them themselves, it stands (...) as a permanent guardian of those interests in loco parentis. Put in this blunt way, paternalism seems a preposterous doctrine. If adults are treated as children they will come in time to be like children. Deprived of the right to choose for themselves, they will soon lose the power of rational judgment and decision. Even children, after a certain point, had better not be “treated as children,” else they will never acquire the outlook and capability of responsible adults. (shrink)

Since several landmark legal decisions in the 1970s and 1980s, substituted judgment has become widely accepted as an approach to decision‐making for incapacitated patients that incorporates their autonomy and interests. Two notable exceptions have been cases involving minors and those involving cognitively or psychiatrically impaired individuals who never previously possessed the ability to contemplate the medical decisions involved in their care. While a best interest standard may have universal merit in pediatric cases, this paper argues that substituted judgement (...) has been rejected too broadly for “never‐capacitated” patients. It then lays out a three‐condition test for using substituted judgment in these cases. For a subset of “never‐capacitated” patients who belong to distinctive religious or cultural communities with clear medical values and have an appropriate surrogate, these values may prove helpful in vindicating the interests of the never‐capacitated and should not be blanketly dismissed. (shrink)

In this paper the thesis is argued that there is no need for a special legal logic to deal with the defeasibility of legal arguments. An important argument for this thesis is that legal judgements ask for a complete justification and that such a complete justification requires a deductively valid argument.

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), 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 (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through (...) the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

As Hong Kong is the only common law jurisdiction operating in Chinese, alongside English, writing a common law judgment in Chinese is like exploring an uncharted domain in legal discourse. Apart from those judgments originally written in Chinese, Chinese judgments have also been prepared by way of translation from English. Besides, there are also English translations of Chinese judgments of jurisprudential value. Judgments in Hong Kong therefore present an interesting case for study both from a legal point of (...) view and from the perspective of discourse analysis. As Chinese judgments in Hong Kong to a large extent mirror images of their English counterparts, they provide us with insights into how judicial thinking embodied in one language is carried over to another. As the translation of court judgments can serve as a clue to the understanding of how judicial thinking is transferred and reflected in another language, this study looks into some of the fundamental problems of legal translation in general and translation of court judgments in particular, showing how the sociosemiotic approach can shed light on those problems. (shrink)

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in the “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the (...) plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations—developing attributes of corrigibility, temporality, judgment, and publicity—by learning from law. Manderson finds that modern legal judgment is bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an interdisciplinary engagement provides. (shrink)

Overgeneralizations by psychologists of the research evidence on memory and eyewitness testimony, such as “memory decays with time” or “memories are fluid and malleable,” are beginning to appear in legal judgements and guidance documents, accompanied by unwarranted disparagement of lay beliefs about memory. These overgeneralizations could have significant adverse consequences for the conduct of civil and criminal law.

In the ground-breaking 2018 judgment of Navtej Singh Johar v. Union of India, the Hon'ble Supreme Court of India ushered in a new era by decriminalizing homosexuality, marking a pivotal moment in the country's legal history. However, this progressive stride was accompanied by persistent questions concerning homosexual rights that remained unexplored within both cultural and legal frameworks. Despite the legal acknowledgment, members of the homosexual community are often professed merely as 'individuals' and not fully integrated into mainstream (...) society. This perception is aggravated by the absence of a societal 'stamp of marriage,' reinforcing their marginalization. In the realm of Hindu law, the sanctity of marriage is deeply rooted in the scriptures, which explicitly define it as the union of 'two souls.' Remarkably, these very scriptures also assert that a soul is inherently without gender, elucidating that gender is a characteristic exclusive to the human body. It is crucial to recognize that Hindu law, including the relevant Acts, draws extensively from these scriptures, making them a fundamental source of legal principles. The legislation, such as the Hindu Marriage Act, essentially serves to codify and organize the pre-existing Hindu law without seeking to undermine the intrinsic values enshrined within the Holy Scriptures. This article aims to delve into the unaddressed aspects of homosexual rights within the contemporary legal framework, shedding light on the denied rights that persist. While global attitudes are progressing towards recognizing and safeguarding homosexual rights, the Indian government and cultural factors appear hesitant to renounce orthodox and conservative stances. This article seeks to analyse and critique these aspects, exploring the challenges hindering the full acceptance and integration of homosexual individuals into the broader societal fabric despite the transformative legal landscape initiated by the Navtej Singh Johar case. (shrink)

Ordinary people make moral judgments that are consistent with philosophical and legal principles. Do those judgments derive from the controlled application of principles, or do the principles derive from automatic judgments? As a case study, we explore the tendency to judge harmful actions morally worse than harmful omissions (the ‘omission effect’) using fMRI. Because ordinary people readily and spontaneously articulate this moral distinction it has been suggested that principled reasoning may drive subsequent judgments. If so, people who exhibit the (...) largest omission effect should exhibit the greatest activation in regions associated with controlled cognition. Yet, we observed the opposite relationship: activation in the frontoparietal control network was associated with condemning harmful omissions—that is, with overriding the omission effect. These data suggest that the omission effect arises automatically, without the application of controlled cognition. However, controlled cognition is apparently used to overcome automatic judgment processes in order to condemn harmful omissions. (shrink)

An assessment of decision-making capacity is the accepted procedure for determining when a person is not competent. An inferential gap exists between the criteria for capacity specific abilities and the legal requirements to understand relevant information and appreciate the consequences of a decision. This gap extends to causal influences on a person'scapacity to decide. Using a published case of depression, we illustrate that assessors' uses of diagnostic information is frequently not up to the task of bridging this inferential gap (...) in a justifiable way. We then describe cases of faulty judgement which challenge the understanding of diagnostic causal influences. These cases help to clarify the nature of the expertise required for capacity assessments. In practice, the requirements of decision-making capacity are often abandoned to other considerations due to a lack of requisite expertise. The legal policy supporting decision-making capacity as a means to protective intervention is justified only if the requisite expertise is developed. We propose the requisite expertise to be developed in the long term as a distinct multidisciplinary endeavour. (shrink)

Moral and legal judgments sometimes depend on personal traits in this sense: the subject offers good reasons for her judgment, but if she had a different social or ideological background, her judgment would be different. If you would judge the constitutionality of restrictions on abortion differently if you were not a secular liberal, is your judgment really based on the arguments you find convincing, or do you find them so only because you are a secular liberal? I argue that (...) a judgment can be based on the considerations the subject claims as justification even when it depends on personal traits. (shrink)

This chapter contains sections titled: Legal Enforcement of Moral Norms against Causing Harm Legal Requirements to Perform Acts That Benefit Others Requirements to Refrain from Acts that Cause Indirect Harm to Others Requirements to Refrain from Actions That Hurt Oneself Requirements to Refrain from Acts That Offend Others Requirements to Refrain from Acts Others Believe Are Immoral References.

This paper explores what is apparently a non-topic for Luhmann. Luhmann is preoccupied with decision-making rather than with judgment. The paper argues that Luhmann, attempting to find a way out of the dilemma between the fundamentalism of positivistic legal theory and the relativism of anti-foundationalist post-modern thinking, presents the epistemological–ethical doublet of a “self-binding” of the law. In this bootstrapping manoeuvre decision plays the central part. The paper begins by examining judgment in its relation to decision as considered by (...) non-system-theoretical thinking. Against that background it unfolds the distinction between distinction, form and decision in systems theory and in the system-theoretical observation of the law. The article then discusses Luhmann’s description of the functioning of decision(-making) within the legal system. The hypothesis is that Luhmann blends here cognitive with ethical aspects. Finally, the article addresses Luhmann’s polemics against alternative approaches to his own. The suggestion is that ‘judgment’, in Luhmann’s systems theory, re-enters by the back door as an ethical–theoretical imperative that commands theory’s responsibility for society and law. (shrink)

This paper develops a virtue-account of legal reasoning which significantly differs from standard, principle-based, theories. A virtue approach to legal reasoning highlights the relevance of the particulars to sound legal decision-making, brings to light the perceptual and affective dimensions of legal judgment, and vindicates the relevance of description and specification to good legal reasoning. After examining the central features of the theory, the paper proposes a taxonomy of the main character traits that legal decision-makers (...) need to possess to successfully engage in legal reasoning. The paper concludes by discussing an array of strategies in legal education, institutional design, and legal culture that can be put in place to work virtue in legal decision-making. (shrink)

According to Immanuel Kant, legality means the quality of an action being merely and simply in conformity with a law. The article defends the significance of this notion and explains how it indicates the existence of a legal relation. The legal relation, in turn, is the result of resolving an antinomy between the social and the substantive dimension of moral judgment.

In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges (...) try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality. (shrink)