Methods of Legal Reasoning

ISBN-13: 9781402049361 / Angielski / Miękka / 2006 / 233 str.

Bartosz Brozek; Jerzy Stelmach

Opis

Anyone reflecting on the methodology of legal reasoning faces a difficult task. The number of methodological theories in jurisprudence and the vast literature on the subject are not the only problems that have to be taken into account. Perhaps the most striking difficulty concerning the methodology of legal argument is the heated debate between jurists, legal theorists and philosophers of law that has been recurring since at least nineteenth century. Therefore a justification is needed for writing yet another book c- cerning the methods of legal reasoning; a book that aims to cover a lot of what has already been proposed in legal theory. We believe that there is such a justification. First, the perspective that we adopt in the present book is unique, at least in some respects. We venture to look at the methodology of legal reasoning "from the outside," i.e. from a more g- eral, philosophical perspective, while taking into account the "hard re- ity" of law. This perspective enables us to ask questions about the justification for the methods of legal argument presented. Second, we do not want to defend one, paradigmatic conception of legal reasoning. On the contrary, we put forward the thesis that there is a plurality of argumentative methods. The plurality, however, does not lead to relativism in legal decision-making. Third, we reject any hierarchy of the methods of legal reasoning, and take the view that one can speak only of the precision and flexibility of different methodologies.

Spis treści

PART I. Controversy over legal methodology in the 19th and 20th centuries.
1. Three stances. 1.1. The rejection of method. 1.2. Methodological heteronomy. 1.3. Methodological autonomy. 2. Methods of legal reasoning. 3. Logic – analysis – argumentation – hermeneutics.
PART II. Logic.
1. Introduction. 2. Classical logic: propositional logic and first order predicate logic. 2.1. Presentation of calculi. 2.2. Paradoxes of material implication. 2.3. Examples. 3. Deontic logic. 3.1. Possible world semantics. 3.2. Deontic logic. 3.3. Paradoxes of deontic logic. 3.4. Examples. 4. Logic of action and logic of norms. 4.1. Two types of obligation. 4.2. Logic of action. 4.3. Jørgensen Dilemma. 5. Defeasible logic. 5.1. The concept of defeasibility. 5.2. Defeasible logic. 5.3. Objections against nonmonotonic logic. 5.4. Examples. 5.5. Two remarks. 6. Summary.
PART III. Analysis.
1. Introduction. 1.1. The notion of analysis. 1.2. History of the concept. 1.3. Analytic philosophy. 2. Linguistic analysis. 2.1. History and basic assumptions of linguistic analysis. 2.2. Legal conceptual scheme. 2.3. Speech acts theory. 2.4. The method and its limits. 3. Economic analysis of law. 3.1. Law & Economics. 3.2. Idea of economisation. 3.3. Limits of the method. 3.4. Conclusions. 4. Summary.
PART IV. Argumentation.
1. Introduction. 1.1. Philosophies of argumentation. 1.2. Criteria of a practical discourse. 2. Two conceptions of a legal discourse. 2.1. The topical-rhetorical conception of legal discourse. 2.2. Procedural conception of legal discourse. 3. Legal argumentation. 3.1. Claim to universality. 3.2. Structure of legal discourse. 3.3. Applications.
PART V. Hermeneutics.
1. Introduction. 1.1. The beginnings of hermeneutics. 1.2. What do we not know about hermeneutics? 2. Hermeneutics as epistemology. 2.1. Methodological current in philosophical hermeneutics. 2.2. Legal receptions. 3. Hermeneutics as ontology. 3.1. Ontology of understanding. 3.2. Legal receptions. 4. The understanding of the law. 4.1. Claim to universality. 4.2. The nature of hermeneutic cognition. 4.3. Applications.
PART VI. Methods of legal reasoning from a post-modern perspective.
1. A summary. 1.1. Arbitrariness. 1.2. Metatheoretical perspective. 1.3. Relationships between the methods: the three theses. 2. Dilemmas of the contemporary philosophy of law. 2.1. Contemporary positivism. 2.2. Conclusions. 3. The epistemological approach. 3.1. The limits of legal cognition. 3.2. Two discourses. 4. Unfinished projects. 4.1. Classicism. 4.2. Modernism. 4.3. Postmodernism.

Blurb

The book attempts to describe and criticize four methods used in legal practice, legal dogmatics and legal theory: logic, analysis, argumentation and hermeneutics. Apart from a presentation of basic ideas connected with the above mentioned methods, the essays contained in this book seek to answer questions concerning the assumptions standing behind these methods, the limits of using them and their usefulness in the practice and theory of law. A specific feature of the book is that in one study four different, sometimes competing concepts of legal method are discussed. The panorama, sketched like this, allows one to reflect deeply on the questions concerning the methodological conditioning of legal science and the existence of a unique, specific legal method. The authors argue that there exists no such method. They claim that the methodologies presented in the book may serve as a basis for constructing a coherent and useful conception of legal thinking. Any such conception, however, must recognize its own assumptions and limitations, resulting from adopting a specific philosophical stance.