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Legal Reasoning (legal + reasoning)

Distribution by Scientific Domains
Law and Criminology70%

Selected Abstracts

Taking Language Seriously: An Analysis of Linguistic Reasoning and Its Implications in EU Law

EUROPEAN LAW JOURNAL, Issue 4 2010
Elina Paunio
This article discusses legal reasoning at the European Court of Justice (ECJ). The following questions are addressed. First, the authors look at the way linguistic arguments are used in ECJ case-law. Second, they consider whether the requirements of legal certainty, and more specifically that of predictability, may be fulfilled by reference to linguistic arguments in a multilingual legal system. The theoretical starting-point is that of open-endedness of language: no means exists to definitely pin down the meaning of words. Defining the meaning of words in a legal context is necessarily a matter of choice involving evaluative considerations. Consequently, when the ECJ uses linguistic arguments to justify a decision, it is an active agent choosing the meaning of words in a specific case. Essentially, the authors argue that legal reasoning based on linguistic arguments is particularly problematic from the viewpoint of legal certainty and predictability. In this respect, the key importance of systemic and teleological argumentation is emphasised in assuring convincing, acceptable and transparent legal reasoning especially in the context of multilingual EU law. [source]

Appointing and Censuring the European Commission: The Adaptation of Parliamentary Institutions to the Community Context

EUROPEAN LAW JOURNAL, Issue 3 2001
Paul Magnette
The parliamentary model at the heart of European civic cultures has deeply influenced ,Constitutional reforms' in the European Community. But the EC is not a Parliamentary state and the transplant of national institutions in its own political context gives rise to hybrid practices. This paper examines this process of hybridation, and shows that new practices of appointment and censure are emerging in the Community, mixing classic parliamentary institutions with the crucial features of the EC itself. Focusing on recent tensions between the Council, the Commission, and the European Parliament, it shows that they are governed by national divisions, technocratic and legal reasoning rather than by classic majoritarian attitudes. It concludes that, while this new model of accountability might prove efficient in terms of inter-institutional controls, it remains symbolically inefficient, because it does not help citizens understand and accept the Community institutional model. [source]

Karl Olivecrona on Judicial Law-Making

RATIO JURIS, Issue 4 2009
TORBEN SPAAK
The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term "evaluation" in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false. [source]

Legal Validity: An Inferential Analysis,

RATIO JURIS, Issue 2 2008
GIOVANNI SARTOR
Its conceptual function is that of relating certain (alternative sets of) properties a norm may possess to the conclusion that the norm is legally binding, namely, that it deserves to be endorsed and applied in legal reasoning. Legal validity has to be distinguished from other, more demanding, normative ideas, such as moral bindingness or legal optimality. [source]

On "Coherence" and "Law": An Analysis of Different Models

RATIO JURIS, Issue 2 2001
Aldo Schiavello
The aim of this paper is to compare different conceptions of the role of (normative) coherence in the legal field. More precisely, it aims to deepen Neil MacCormick's theory of legal reasoning, in which coherence is essentially considered an interpretative tool, and Ronald Dworkin's legal theory, in which coherence occupies a more crucial place. The main results of this paper can be summarized in two points. A) For Dworkin, coherence is not just an interpretative standard but constitutes the hard core of his theory of law. B) As a consequence of A, Dworkin's reflections on coherence (as an interpretative standard) cannot be separated from his theory of law grounded on the concept of integrity. [source]

Comparative Statutory Interpretation in the British Isles

RATIO JURIS, Issue 4 2000
Kay Goodall
Existing studies of statutory interpretation are often of excellent quality but they have tended either to focus on legal practice to the detriment of comparative jurisprudence, or have examined legal reasoning at a level of abstraction which has made empirical study difficult. The author examines a recent development in this area and considers how it might be used to begin a project to identify any divergences in statutory interpretation among the various legal systems of the United Kingdom. [source]

A brief history of the concept of free will: issues that are and are not germane to legal reasoning

BEHAVIORAL SCIENCES & THE LAW, Issue 2 2007
Phillip Cary Ph.D.
Examining the history of the concept of free will helps distinguish metaphysical issues beyond the interest of a court of law from considerations about the nature of human action germane to legal reasoning. The latter include Plato's conception of the rational governance of the soul and Aristotle's conception of voluntary action, both of which arose before Hellenistic philosophers propounded analogues of modern positions against determinism (Epicureans) or for the compatibility of free will and determinism (Stoics). The concept of will itself also has a history, being first conceived as a distinct power by Augustine. Modern physics raised new problems about free will, as human motivations began to look less like rational perceptions of the good and more like mechanistic causes. Contemporary philosophy has not solved the problem of free will but has spun off analyses of the nature of action and moral responsibility that are of interest for legal reasoning. Copyright © 2007 John Wiley & Sons, Ltd. [source]

AUTONOMY AND AUTHENTICITY OF ENHANCED PERSONALITY TRAITS

BIOETHICS, Issue 6 2009
JAN CHRISTOPH BUBLITZ
ABSTRACT There is concern that the use of neuroenhancements to alter character traits undermines consumer's authenticity. But the meaning, scope and value of authenticity remain vague. However, the majority of contemporary autonomy accounts ground individual autonomy on a notion of authenticity. So if neuroenhancements diminish an agent's authenticity, they may undermine his autonomy. This paper clarifies the relation between autonomy, authenticity and possible threats by neuroenhancements. We present six neuroenhancement scenarios and analyse how autonomy accounts evaluate them. Some cases are considered differently by criminal courts; we demonstrate where academic autonomy theories and legal reasoning diverge and ascertain whether courts should reconsider their concept of autonomy. We argue that authenticity is not an appropriate condition for autonomy and that new enhancement technologies pose no unique threats to personal autonomy. [source]