10.2307/3505144

This book is about legal theory and legal reasoning. In particular,it seeks to examine the relations that obtain between law and a theory of law and legal reasoning and a theory of legal reasoning. Two features of law and legal reasoning are treated as being of particular importance in this regard: law is institutional, and legal reasoning is formal. These two features are so closely connected that it is reasonable to believe that in fact they are simply two ways of looking at the same issue. This becomes clearer as the focus of the book shifts from the institutional nature of law to the consequences of this for legal reasoning, and which is the principal focus of the book. The author received the European Academy of Legal Theory award in 2000 for the doctoral dissertation on which this work was based.

Sadeghi, Behnam. <i>The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition</i>. Cambridge: Cambridge University Press, 2013. 234 pp. $99.99 (cloth).

The LogiKEy workbench and dataset for ethical and legal reasoning is presented. This workbench simultaneously supports development, experimentation, assessment and deployment of formal logics and ethical and legal theories at different conceptual layers. More concretely, it comprises, in form of a dataset (Isabelle/HOL theory files), formal encodings of multiple deontic logics, logic combinations, deontic paradoxes and normative theories in the higher-order proof assistant system Isabelle/HOL. The data were acquired through application of the LogiKEy methodology, which supports experimentation with different normative theories, in different application scenarios, and which is not tied to specific logics or logic combinations. Our workbench consolidates related research contributions of the authors and it may serve as a starting point for further studies and experiments in flexible and expressive ethical and legal reasoning. It may also support hands-on teaching of non-trivial logic formalisms in lecture courses and tutorials.The LogiKEy methodology and framework is discussed in more detail in the companion research article titled “Designing Normative Theories for Ethical and Legal Reasoning: LogiKEy Framework, Methodology, and Tool Support” [5].

This paper analyses1 the claim that legal reasoning is defeasible, which is indeed a hallmark of some major contributions to the theory of legal reasoning in recent times. Before addressing the question of what kind of logical tools are needed to formalize defeasible reasoning, it must be explained why legal reasoning is supposed to be defeasible in the first place. Some arguments to this effect are taken into account (having to do with the allocation of burdens of proof in legal procedures. reasoning with incomplete information and the proper way of individuating norms), but it is held that none of them really proves that legal reasoning cannot be reconstructed as a deductive inference. The strongest argument to justify the claim that legal reasoning is defeasible seems then to be that all legal norms turn out to be defeasible: but here this argument is disputed, trying to show that it would lead us to embrace either wholesale indeterminacy or ‘legal particularism’, which is criticised as an untenable form of conceiving legal justification. Finally, it is suggested that there is indeed some limited sense in which it could be said that legal reasoning is defeasible (having to do with the idea that justification in law is a matter of coherence), but it is not grounded on the possibility that legal norms themselves be defeasible as well, and especially it does not call in question the subsumptive character of legal justification.

The aim of this chapter is to illustrate the point of departure of this book that logic should not be regarded as a model of, but as a tool in legal reasoning. I shall do so mainly by discussing some objections to logical methods which can be found in legal philosophy and AI-and-law. Some of them are an application to the legal domain of more general criticism of logic discussed in Chapter 1. Section 2.1 briefly discusses some basic misunderstandings about the nature of logic, after which Section 2.2 examines in more detail another misunderstanding, the opinion that applying logic to legal reasoning would be the same as regarding law as a coherent system of rules which can somehow be discovered and formalized. Then, Section 2.3 deals with the criticism that logical methods can only model a small part of legal reasoning since most forms of reasoning used in law are nondeductive. Finally, Section 2.4 relates the mainly philosophical discussions of the first three sections to an issue in AI-and-law research, the distinction between ‘rule-based’ and ‘case-based’ reasoning.KeywordsLegal RuleAnalogical ReasoningDeductive ReasoningLegal ReasoningLogical MethodThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Legal philosophy is about the analytical and normative study of law and legal concepts. This includes questions of “what is law?” concerning the nature of law and fundamental questions about the law’s reach and authority. Legal philosophers critique the standard assumptions made by many legal practitioners to move beyond doctrinal legal analysis to reveal new insights and how potential problems might be resolved. This article surveys the major approaches in legal philosophy, such as natural law theory, legal positivism, legal realism, the economic analysis of law, and alternative approaches. The entry then provides an overview of important issues in legal philosophy, such as adjudication, legal reasoning, and the philosophy of criminal law.

The author inquiries into the reasons that many contemporary legal philosophers, regardless of their theoretical disagreements about the nature of law, appear to converge in the claim to objectivity in legal and moral reasoning. This confidence in objectivity of value judgments, however, is sometimes responded with scepticism by some of the most prominent philosophers in meta-ethics, who claim that lawyers are normally not able to handle with competence philosophical arguments about the nature of morality. In response to this scepticism, many lawyers and legal philosophers advocate the possibility of a methodological, instead of metaphysic, conception of objectivity for legal reasoning. In defence of the lawyers, the author argues against Archimedeanism in moral philosophy and defends the position that it makes sense, as authors like Ronald Dworkin and Joseph Raz suggest, to claim objectivity for legal reasoning, inasmuch as the legitimacy of legal judgments depends on the possibility of objective assessment of legal norms.

The aim of this paper is to explore the limits of the constraint satisfaction theory of coherence (CsCS) as a basis for a model of legal argumentation concerning questions about norms. The main thesis defended here is that CaCS is a promising basis for such model, but it has to overcome certain important objections. This paper focuses on objections of a technical nature, related to the problems of representation of arguments and relations between arguments in the framework of CaCS. The paper outlines possible ways of dealing with these difficulties and indicates a perspective of further research on the subject.

Legal socialization researchers have largely ignored the importance of emotion in the legal socialization process and engagement in crime. The purpose of the current study was to argue the potential importance of moral emotions (e.g., guilt) in legal socialization and take a preliminary step to integrate an emotion component into an existing model. The current study investigated whether the moral emotion of guilt, using both proneness and anticipatory measures, would predict rule‐violating behavior (RVB) as part of the integrated cognitive legal socialization model. The study used survey data from 474 participants who were part of a longitudinal study of adolescent rule‐violating behavior. Results showed that guilt proneness functioned as a predictor of RVB in parallel with legal reasoning, while anticipatory guilt served as a mediator in parallel with normative attitude mediators. Enforcement status (i.e., feeling people should be punished for committing RVB) mediated the relation between guilt proneness and RVB, while normative status (i.e., approval for engaging in RVB) and anticipatory guilt mediated the relation between legal reasoning and RVB. These findings help to advance legal socialization by demonstrating the unique contribution of emotion in legal socialization theory and provide a foundation for future research in this area. The implications for the role of emotion in both the integrated cognitive legal socialization model and the procedural justice legal socialization model and future directions for further inquiry are discussed.

Up to the present day, the theories of legal reasoning have been concerned with reasoning in the stages of interpretation and adjudication of laws. However, if a fundamental feature of legal reasoning is that it is actually bound by laws, then the theory of legal argumentation should also consider to what extent legislative argumentation is an assumption of rational legal reasoning: if legal reasoning is, as Alexy states, a special case of the general practical discourse, and the speciality of legal reasoning is a consequence of the requirement of being bound by legal laws, then legislative rationality can be considered a premise of the rationality of law interpretation and adjudication.

SOMMARIO: 1. Il diritto resiste alla scienza - 2. La scienza come criterio di legittimazione della norma giuridica - 3. Diritto come fenomeno normativo: incommensurabilita fra diritto e scienza - 4. Il diritto come super scienza - 4.1. Voracita processuale - 4.2. Verita giuridica e legittimazione dell’organo decidente - 4.3. Verita giuridica e falsificazione - 4.4. Margini del sindacato giudiziario - 5. Diritto come mediazione fra saperi distinti - 6. Conclusioni: diritto, scienza e gestione dell’incertezza.Law as system which incorporates distinct epistemological methods. Why legal reasoning did not retreat before scientific knowledgeABSTRACT: The central claim of this Article is that, despite the frequent references by legal acts to scientific knowledge, the scientific method has not supplanted or overshadowed the proper features of legal reasoning arising from the idea of law as an autonomous system of knowledge. In fact, just the opposite has occurred. It will be argued that the resistance of the legal at the scientific method can be explained on the basis of three distinct theories of law and legal reasoning: a) the first claims that law is a normative system which is incommensurable with science; b) the second qualifies law as a kind of superscience which grounds legitimacy to science itself; c) the third defines law as a normative system which accepts and incorporates forms of knowledges which the scientific method normally rejects.

Editors' Introduction. A Model of Argumentation and Its Application to Legal Reasoning K. Freeman, A.M. Farley. A Theory of Legal Reasoning and a Logic to Match J. Hage. Abstract Argumentation R.A. Kowalski, F. Toni. Jumps and Logic in the Law A. Peczenik. A Dialectical Model of Assessing Conflicting Arguments in Legal Reasoning H. Prakken, G. Sartor.

Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This article argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the use of decided cases to help characterize novel fact situations, and are justified by the rule of law ideal of minimizing the dependence of judicial decisions on the individual views of decision-makers. Close analogies are used to help resolve unsettled issues by reliance on decisions from other branches of the same legal doctrine. They complement the doctrine of precedent, and rest on similar considerations. Distant analogies are also used to help resolve unsettled issues, but by reference to decisions from other legal doctrines. They are the most susceptible to sceptical critique: although they can serve to maintain coherence in the law, they deserve a more modest role in legal reasoning than they are often given. © The Author 2014. Published by Oxford University Press. All rights reserved.

In recent years the process of argumentation has become an important subject of research in various disciplines such as legal philosophy, formal logic and AI and Law. Since many legal activities are governed by procedures, such as passing sentences, drafting legislation, applying for licences, etc., a procedural approach to legal reasoning seems natural. This paper discusses three characteristics of legal justification that justify the choice for a procedural, i.e. a dialogical, model: the difficulty of getting a solid foundation to base decisions on, the defeasible nature of legal reasoning and the open character of law.

On formalisation of the goal concept in law