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The Basis of Legal Justification
On Law and Reason. Direct download 4 more. Peczenij Reasoning and Adjudication in Philosophy of Law. Direct download 3 more. The main stream of legal theory tends to incorporate unwritten principles into the law. Weighing of principles plays a great role in legal argumentation, inter alia in statutory interpretation. A weighing and balancing of principles and other prima facie reasons is a jump.
The inference is not conclusive. To deal with defeasibility and weighing, a jurist needs both the belief-revision logic and the nonmonotonic logic. The systems of nonmonotonic logic included in the present volume provide logical tools enabling one to speak Nonmonotonic logic is an example of an extension of the alekssnder of logic. But the more far-reaching the extension is, the greater problems it meets. It seems impossible to make logical reconstruction of the totality of legal argumentation.
Formalism about Legal Reasoning in Philosophy of Law. Nonmonotonic Logic in Logic and Philosophy of Logic. Direct download 7 more. Legal Authority in Philosophy of Law. Nature of Law, Misc in Philosophy of Law. Moral Justification in Meta-Ethics. Legal doctrine in Continental European law consists of professional legal writings, e. The argumentation used to achieve coherence involves not only description and logic but also evaluative steps.
However, sceptics criticise juristic doctrine for its normative The author answers this criticism pointing out the following. Normative reason is possible. Liberal ontology, admitting such entities as morally justified law, is possible as well.
The vagueness of legal doctrine can be construed as defeasibility.
Defeasibility is inevitable in the law and in human thinking in general. Fragmentation of legal doctrine is not absolute. Its theories are linked to overarching moral theories. Finally, locality is not absolute either. Though sometimes restricted to a given state, theories of legal doctrine display relevant similarities to corresponding theories in other states. The author adopts a coherentist approach to legal argumentation.
Ceteris paribus, the degree of coherence of argumentation depends on answers to such questions as: How many statements belonging to the justification are supported by reasons, that is, not arbitrary?
A reasonable legal argumentation is a special case of a reasonable moral argumentation. Both contain moral substantive reasons and legal authority reasons. On the other hand, some particularities of legal argumentation must be noticed, as well. Among other things, the lawyers take for granted that legal reasoning is based on valid law and that some sources of law, such as statutes, are binding. There exist various juristic roles and corresponding types of argumentation, e.
Yet, all kinds of legal argumentation must use weighing and balancing in order to make the law coherent and morally acceptable. Consequently, all general principles and criteria of coherence are applicable to all these types but their weight varies between them.
Informal Logic in Logic and Philosophy of Logic. Justice in Social and Political Philosophy. Legal dogmatics in Continental European law scientia iuris, Rechtswissenschaft consists of professional legal writings whose task is to systematize and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in many cases it leads to a change of the law. Among general theories of legal dogmatics, one may mention the theories of negligence, intent, adequate causation and ownership.
The theories produce principles and they also produce defeasible rules. By means of production of general and defeasible theories, legal Legal dogmatics is necessary in the context of constitutional constraints on the majority rule. Only if the courts act on the basis of Reason they can be a legitimate counterpart of the majority rule.
Peczeniik Reason cannot be exhausted by particular decision making. It also needs a more abstract deliberation, given by expert jurists. However, legal dogmatics has been a target of several kinds of criticism: The position taken in this article is to answer such criticism by mutually adjusting philosophy and the practices of the law. Social and Political Philosophy. Direct download 6 more. Ethics in Value Theory, Miscellaneous.
Direct download 2 aleksanddr. International Law in Philosophy of Law. Rights in Social and Political Philosophy. Varieties of Justice in Social and Political Philosophy.
Global Justice in Applied Ethics. Legal Positivism in Philosophy of Law. Using PhilPapers from home?
: Aleksander Peczenik: Books
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