Balancing as a Guide to Legislative Reasoning

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.

This chapter discusses Alexy’s theory of legal argumentation. The central question in the work on legal argumentation of Robert Alexy is how normative statements, such as legal decisions, can be justified in a rational way. Alexy considers the process of justification of normative statements as a practical discussion or ‘practical discourse’ and the process of justification of legal decisions as ‘legal discourse’. Since a legal discussion in which legal norms are defended is a specific form of general practical discourse, a theory of legal argumentation should be founded on a general theory of this kind.

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.

The article explores the theory of legal argumentation of Scottish philosopher Neil MacCormick, known for its integrative approach. The work is based on a theoretical approach that seeks to harmonize elements of legal positivism with its formal logic with a pragmatic and critical perspective. The methodology adopts a double analysis of legal justification: the internal plan, which uses deductive logic for easy cases; and the external level, which evaluates the coherence and practical consequences of judicial decisions in difficult cases. By connecting both plans, the principle of universality is central to ensure that decisions are fair and democratically applicable to future cases. The main results indicate that MacCormick's integrative theory offers a legal framework capable of justifying decisions in both easy and difficult cases, and contributes to the development of a more robust theory of standard legal argumentation, by emphasizing rationality, pragmatism and justice in judicial decisions, integrating normative principles with the analysis of the assessment of the practical consequences of decisions.

The rationality project offered by the current Theory of Legal Argumentation is marked fundamentally by strong silent about emotions, a subject that has been considered, nowadays, a theoretical indifferent, although traditionally has been linked to the study of speech and ethics since ancient times. This modern theoretical gap has the effect of disturbing inability of the current student and legal professional to identify, evaluate and reflect the presence of emotions in argument and, more broadly, in legal practice. This study aims to understand why emotions left the Legal Argumentation Theory and try to provide reasons for them to be studied again. Thus, it is necessary to investigate whether they would be compatible with a rational legal argumentation and, more broadly, with the explanation of the legal system. To achieve this goal, it is necessary to study ancient philosophy, specifically the thought of Aristotle and the Stoic school in order to understand how both have integrated the theme of emotions in his ethics and his rhetoric. Then, we investigate in which historical context comes the Modern Theory of Argumentation, considering the thought of its founders and the following generations. It aims also search to understand the psychology of our time on emotions. In the end, the objective is to identify the good and bad use of emotions in legal reasoning, enabling the subject to be rescued with serious and critical capacity in order to improve the quality of legal discourse.

A will is a message about a good thing that will be carried out after a person dies. The testament comes from the word washa which means to convey or give a message or forgiveness. In other words, a will is property given by its owner to another person after the giver dies. The concept of a will in Islam refers to the transfer of assets to distant relatives or relatives who do not have inheritance rights as well as to other people. From this concept, a theory of legal reasoning regarding will law emerged, which then developed to include reasoning about its legal posistion. The aim of Islamic law is to realize the benefit of the people. One of the aspects that is the focus of this study is wills, namely the posistion of wills in the inheritance distribution system, the legal impact of testamentary events, and the legal posistion of Islmaic wills in the Indonesian legal system.

As this is an artificial intelligence book, our goal is a computational model of some legal process. The discourse norms from Alexy’s theory of legal argumentation are quite abstractly stated, and it is still less than clear how or whether they can be modeled in a computer program. One result of the previous chapter on legal philosophy is a set of dimensions for classifying discourse games. In this chapter, several existing formal models of argumentation will be described and then classified along these dimensions. The goal is not so much to assess their suitability for modeling legal argumentation as to gather ideas and techniques which can be adapted in a discourse game designed expressly for this purpose.

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 problem of separation between the context of discovery and the context of justification of legal decisions is one of the basic themes in legal argumentation theory. Whereas the context of discovery focuses on the process of reaching a legal decision, which concludes a decision-making process, the context of justification is concerned with justification of the legal decision through the application of relevant legal arguments. The majority of legal theorists interested in legal argumentation theory support the position that the mentioned two contextes are rigidly separated, in the framework of which the process of discovery is mainly studied by psychologists while the process of justification is the only area that should be relevant for legal argumentation theory. I oppose such a rigid separation between the two contextes and view it as a position that is too idealist. Instead, I support a more realistic position of their moderate separation, whereby I recognise the importance of the discovery context while still insisting on the major relevance of the justification context.

Book reviewed in this article:Loraine Gelsthorpe, Sexism and the Female OffenderStephen B. Goldberg, Eric D. Green and Frank E.A. Sander, Dispute ResolutionChris Reed (ed), Computer LawColin Bourn and John Whitmore, Discrimination and Equal PayRobert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal JustificationVictor‐Yves Ghebali, The International Labour Organisation. A Case Study on the Evolution of UN Specialised Agencies

Finding Analogies between Cases: On Robert Alexy’s Third Basic Operation in the Application of Law

Book reviewed in this article:Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, translated by Ruth Adler and Neil MacCormickPhilip Soper, A Theory of Law

The article under studies deals with the issue of the evolution of the so-called standard relational technique, which was introduced by H. Daubenspeck at the turn of the XIX and XX centuries. However, this idea was included into the manual, which was published only in 2023 (after a very long break), in the 36th edition, under the title “Civil-Legal Working Technique at the Assessor’s Examination.Votum, Judgement, Presentation of Documents, Attorney’s Opinion”. The purpose of the article is to outline the basic trends of the development of standard relational technique. In order to achieve the above goal, it is necessary to regard the following issues: what standard relational technology used to be before 2013, in 2013 and 2023, or may be later. The article takes into account and continues the analysis of the history of relational technique from 1884 to 2008, carried out by L. Gusseck in 2010. In other words, it traces up the evolution of relational technique from the very first edition by H. Daubenspeck and up to the 34th edition. It is important to take into consideration the fact that H. Daubenspeck has laid the foundations for combining relational technique and philology. P. Sattelmacher has developed relational technique in terms of the civil-legal working method. W. Sirp has reintroduced the subsumption and syllogism to the presentation of a judge’s decision, whereas W. Schuschke has extended relational technique to the profession of an attorney. In addition, particular emphasis has been laid on the following features of relational technique: H. Daubenspeck’s introduction into relational technique of the substantive-legal division of legal norms into basic and auxiliary ones, as well as their doctrinal and / or legal division into law-justifying and 2 types of law-negating norms; P. Sattelmacher’s relying his approach to relational technique on the concept of the so-called “Schlüssigkeit”, i.e., the requirement to consider separately and sequentially first the positive grounds of a claim, and then the negative grounds of a claim (the positive grounds of objections). The 35th edition of H. Daubenspeck’s manual (published in 2013) highlights a quite new structure of relational technique. Hereby, it focuses not so much on the standard division (abstract - expertise opinion (votum) – judgment), but on the preparation of a relation according to a plan: analysis of the circumstances of the case (formerly abstract), general rules of law, civil-legal working technique (votum), and elaboration of a draft judgment. In the latest, 36th edition of 2023 (today), the outlined structure is directly based on the publication plan, with the novelty of this edition being the focus on the law of enforcement of a court decision. As for the future (the tomorrow of relational technique), the article predicts the prospect of combining relational technique and R. Alexy’s theory of legal argumentation. This combination is supposed to manifest itself particularly within general rules of law. Besides, such a combination is possible in terms of, on the one hand, involving in relational technique not only rules as definitive (final) norms, but also principles as optimization imperatives, i.e., norms which have a prima facie character. On the other hand, it is argued that relational technique should be based not only on such a form of application of law as subsumption, but also on the theory of weighing principles.

La presente investigación busca utilizar a la Teoría de la Argumentación Jurídica, como método de verificación de la ciencia jurídica mediante las variables: Verdad, Lenguaje, Teoría, Tiempo y Consciencia.

Recent developments in legal argumentation theory: Dialectical approaches to legal argumentation