Essays on the nature of law and legal reasoning

This dualism would seem to indicate that in interpreting the law, judges both seek to capture and be faithful to the content of the law as it currently exists, and to supplement, modify, or bring out something new in the law, in the course of reasoning from the content of the law to a decision in a particular case.

For Raz, legal institutions claim to express binding and authoritative judgements regarding what ought to be done which are designed to allow people to better conform to reason if they follow the decisions of the authority than if they try to follow those other reasons which apply to them directly see Razch.

So for Dworkin, we must interpret law as coherent, in the sense of speaking with one voice, because by so doing, we understand law as the voice of a community of principle, and so as capable of providing a general justification for the exercise of state coercion see Dworkin In considering the role of coherence in legal reasoning, a final point to mention is that of how much of the law is to be made coherent according to various jurisprudential accounts granting a role to considerations of coherence.

In my opinion, I think that deductive reasoning is better than inductive reasoning because deductive reasoning is the reasoning logically understanding by peoples.

The classical formula of logic: To give an American example: This means that, according to Dworkin, when judges reason about the law in sense bwhat they are doing amounts to no more nor less than reasoning about the law in sense ai.

For Raz, then, it is the authoritative nature of law which explains why legal reasoning is interpretive, whereas, for example, moral reasoning is not. Interpretation appears to blur or even erase the line between the separate law-finding and law-creating roles which many legal positivists ascribe to judges, and the fact that courts always seem to be able to decide cases by interpreting the law may also seem to cast doubt on the idea that the law is incomplete, and hence that judges sometimes have to reach outside of the law in the adjudication process.

Interpretation and Coherence in Legal Reasoning

Moreover, the idea of coherence as a special virtue of interpretation in legal reasoning plays an important role in the work of several major continental legal philosophers see e. Legal rhetoric, in turn, is a form of legal discourse, whose functions go beyond that of influencing immediate thought and action and include the preservation and development of the legal traditions and values of the entire political—legal community as well as the traditions and values of the legal profession itself in societies where a legal profession exists.

A few of these disagreements will be surveyed here in order to give a fuller picture of some of the issues and views which are relevant to this topic.

The specific, unique qualities of the dispute are named in general terms. MacCormick views coherence in terms of unity of principle in a legal system, contending that the coherence of a set of legal norms consists in their being related either in virtue of being the realisation of some common value or values, or in virtue of fulfilling some common principle or principles.

In other words, an interpretation of something is an interpretation of something—it presupposes that there is a something, or an original, there to be interpreted, and to which any valid interpretation must be faithful to some extent, thus differentiating interpretation from pure invention—but it is also an interpretation of something, i.

Interest in the pervasiveness of interpretation in legal reasoning, and in the Janus-faced nature of interpretation may thus form part of the background which has led legal theorists like Dworkin to deny that the distinction between identifying existing law, and developing and changing the law, as understood by certain legal positivists, is a tenable or coherent one.

Essays on the nature of law and legal reasoning

It should be noted that some legal theorists, most notably for present purposes Ronald Dworkin, do not carve up the questions and issues on this topic in the way outlined above. Raz c contends that while some conventions of legal interpretation vary according to time and place, there are other features which legal interpretation necessarily exhibits, owing to the nature of law itself.

In the case of a coherence account of law, the whole of what the law is is determined by applying a coherence test to those court decisions and legislative and regulatory acts of a given jurisdiction.

It is generally recognized that each of these three steps is dependent upon the other two. The court should then use this view of the law in order to justify its decision in a new case which comes before it.

He would end differently because he would take leave of Hercules, following his own lights, at some branching point sooner or later in the argument.Professor Lon L. Fuller's jurisprudence and America's dominant philosophy of law -- II. Law and legal reasoning. 7. Working conceptions of "the law" -- 8.

Two types of substance in common law cases -- 9. Resolving conflicts between substantive reasons -- Form and substance in legal reasoning -- As the logical aspect of legal reasoning focuses attention on legal rules and on the principles to be derived from decisions in analogous cases, so the rhetorical aspect of legal reasoning focuses attention on legal activities.

As many writers have emphasized, law itself is not simply, or primarily, a body of rules but an activity, an enterprise. Explain your reasoning, using legal authority (Case law, statutory law, for instance) to back up your answer.

Essays on the Nature of Law and Legal Reasoning

Consider how Rix deals with the submissions by counsel, the statutory and case law authority he bases the argument on and the reasons for the decisions he comes to on a point by point basis to create a clear analysis.

Essays on the nature of law and legal reasoning (Schriften zur Rechtstheorie) [Robert S Summers] on *FREE* shipping on qualifying offers. Rare Book Essays on the nature of law and legal reasoning (Schriften zur Rechtstheorie) Perfect Paperback – Legal Reasoning Essay Sample.

Legal Reasoning is a reasonable reasoning before the decision had been made.

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Legal reasoning required us to consider the criteria beyond those imposed by the strict necessity of logic. Legal theory, formalism and the making of the textbook tradition: some aspects of the intellectual history of modern legal education and thought / by David Sugarman.

K S84 Essays on the nature of law and legal reasoning / by Robert S.

Legal Reasoning Essay Sample


Essays on the nature of law and legal reasoning
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