The paper identifies and assesses the implications of two approaches to the field of artificial intelligence and legal reasoning. The first — pragmatism — concentrates on the development of working systems to the exclusion of theoretical problems. The second — purism — focuses on the nature of the law and of intelligence with no regard for the delivery of commercially viable systems. Past work in AI and law is classified in terms of this division. By reference to The (...) Latent Damage System, an operational system, the paper articulates and responds to conceivable purist (jurisprudential and AI) objections to such a program. The methods of the pragmatist are also called into question and refined. The author concludes that pragmatism within a purist framework is the only sound approach to developing reliable AI systems in law. (shrink)

Referring to foreign legal systems for the sake of producing a convincing judicial argument has been a custom in judicial decision-making for more than a century. However, a generally accepted theoretical framework for this kind of reasoning is yet to be established. The article suggests that such a framework must answer at least the following three fundamental questions: first, what is the normative relationship, as a matter of principle, between domestic and foreign law?; second, what is the primary (...) motive and functioning of comparative legal reasoning?; and third, what methodological approach enables such reasoning to work in practice? Drawing in particular on linguistic philosophy, as well as recent work on the theory of argumentation, the article outlines a theoretical framework that addresses these questions in order to understand, evaluate and rationalise the use of comparative arguments in legal practice. (shrink)

This dissertation develops, justifies, and examines the jurisprudential implications of a non-monotonic theory of common law legal reasoning. Legal rules seem to have exceptions but identifying all of them is difficult. This hinders attempts to formalize legal rules using classical logics. Non-monotonic logics allow defeasible inference, permitting rules that hold generally but can be defeated in the presence of exceptions. This ameliorates the problem of characterizing all exceptions to a rule, because exceptions can be added piecemeal (...) while the rule remains. The first portion of the dissertation rebuts a prominent criticism leveled at a large class of theories of legal reasoning that includes my theory. The charge is that no coherent theory can recognize both the difference between distinguishing and overruling, and the constraint of precedent. The critics argue that is more important than and that can only be explained by monotonic legal rules. Drawing on cognitive psychology as well as legal theory, I show that coherent theories, such as my own, can accommodate both and. The second chapter provides motivation for understanding precedential constraint in terms of non-monotonic default rules and introduces my positive theory, which elaborates on John Horty's work in treating legal rules as prioritized defaults involving reasons. I motivate and implement a relaxation of Horty's restrictions on the form of rules to allow a more fine-grained characterization of precedent. Finally, I explore the relationship between these relaxations and the concept of precedent. The final section explains how my theory fits into the traditional jurisprudential ecosystem. I demonstrate that, contrary to assertions in the legal theory literature, this non-monotonic approach is entirely compatible with positivism's commitment to extracting rules from authoritative legal sources, namely court opinions. I also suggest how it might be attractive to law and economics theorists, pragmatists, and followers of Dworkin. (shrink)

The purpose of this paper is to offer some critical remarks on the so-called pragmatist approach to the regulation of robotics. To this end, the article mainly reviews the work of Jack Balkin and Joanna Bryson, who have taken up such ap- proach with interestingly similar outcomes. Moreover, special attention will be paid to the discussion concerning the legal fiction of ‘electronic personality’. This will help shed light on the opposition between essentialist and pragmatist methodologies. After a (...) brief introduction (1.), in 2. I introduce the main points of the methodological debate which opposes pragmatism and essentialism in the regulation of robotics and I examine how legal fictions are framed from a pragmatist, functional perspective. Since this approach entails a neat separation of ontological analysis and legal rea- soning, in 3. I discuss whether considerations on robots’ essence are actually put into brackets when the pragmatist approach is endorsed. Finally, in 4. I address the problem of the social valence of legal fictions in order to suggest a possible limit of the pragmatist approach. My conclusion (5.) is that in the specific case of regulating robotics it may be very difficult to separate ontological considerations from legal reasoning—and vice versa—both on an epistemological and social level. This calls for great caution in the recourse to anthropomorphic legal fictions. (shrink)

This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of concepts (...) of law. A number of examples of such modes are offered, with the focus thereafter being on two such modes: on the one hand, the explanatory paradigm of reason; and on the other hand, the explanatory paradigm of cause. A map of traditions of jurisprudential inquiry is sketched on the basis of these two modes. The third part of the paper goes on to show how combining the prescriptive resources that follow from the two traditions of jurisprudential inquiry classified in such a manner makes our response to certain practical context more robust. The four practical contexts are: the exercise of judicial behaviour; the structure of international law; legal education; and, legal scholarship. It is only by adopting the pluralist pragmatism espoused by the ethics of legal theory that we can avoid theoretical insularity (the belief that any one theoretical picture is capable of corresponding truthfully to the world) and theoretical imperialism (the belief that any one theoretical picture can be used as a foundation for a prescriptive agenda). (shrink)

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of (...) Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

This paper represents the first installment of alarger project devoted to the relevance of pragmatism forbioethics. One self-consciously pragmatist move would be toreturn to the classical pragmatist canon of Peirce, James andDewey in search of substantive doctrines or methodologicalapproaches that might be applied to current bioethicalcontroversies. Another pragmatist (or neopragmatist) move wouldbe to subject the regnant principlist paradigm to Richard Rorty'ssubversive assaults on foundationalism in epistemology andethics. A third pragmatist method, dubbed ``freestandingpragmatism'' by its proponents, embraces (...) a ``pragmatist'' approachto practical reasoning without discernable moorings either to theclassical canon or to Rorty's neopragmatism. This thirdpragmatist approach to method in practical ethics is the subjectof this article. I begin with an examination of freestandingpragmatism in the theory of judicial decision making. I arguethat this version of legal pragmatism – so described on account ofits commitments to contextualism, instrumentalism, eclecticism,and freedom from grand theory – bears a striking resemblance tomuch self-described pragmatist work in bioethics today. Ifurther argue that if this is what we mean by ``pragmatism,'' thenin a certain sense ``we are all pragmatists now.''. (shrink)

This dissertation sets out Dewey's theory of society, as outlined in the lecture notes for his courses on social and political philosophy between 1923 and 1928. I argue that Dewey had tripartite theory of economic processes, political/legal structures and social-moral functions that focuses on the relationship between material/technological forces and the institutions established to direct them. ;The first section presents and then refutes the charge that pragmatic social thought reduces thought to sheer efficiency and is therefore unable to resist (...) ideology. The primary dispute was between the turn toward objectivist methodology in American social science, frequently attributed to Dewey's influence, and those who saw this turn as a decline into crude, instrumental reason. Unlike the objectivists, instrumentalism incorporated ideas of intersubjectivity, value, and reflexivity. He did not believe that democracy could be best served by a managerial elite who sharply divides facts from values and means from ends. ;The second section comprises the positive presentation of Dewey's social theory. Chapter three discusses economic processes. I set out the organic model that guides his early and late economic theory and how Dewey draws from J. A. Hobson's theory of underconsumption to organize a coherent set of specific economic proposals during the Great Depression. Chapter four presents Dewey's theory of political structures, laws, institutions and habits that shape the direction of material life. But these structures may come in time to restrain further economic and technological growth. The final chapter takes up the breakdown of traditional structures, the reconstruction of which Dewey believed to be the fundamental problem of modernity. There is a need for new customs and institutions that continue traditional ideals of liberalism while being grounded in modern material conditions. The need, Dewey believed, was for a social theory that would understand the interplay of forces and institutions and direct them toward a democratic culture. ;I end with an epilogue on uses of Dewey's thought within contemporary social theory. The cheerful pursuit of instrumental reason by the neo-pragmatists Richard Rorty, Stanley Fish and Richard Posner is contrasted with recent work in the communitarianism/liberalism debate. (shrink)

This book explores the cultures of philosophy and the law as they interact with neuroscience and biology, through the perspective of American jurist Oliver Wendell Holmes’ Jr., and the pragmatist tradition of John Dewey. Schulkin proposes that human problem solving and the law are tied to a naturalistic, realistic and an anthropological understanding of the human condition. The situated character of legal reasoning, given its complexity, like reasoning in neuroscience, can be notoriously fallible. Legal and (...) scientific reasoning is to be understood within a broader context in order to emphasize both the continuity and the porous relationship between the two. Some facts of neuroscience fit easily into discussions of human experience and the law. However, it is important not to oversell neuroscience: a meeting of law and neuroscience is unlikely to prove persuasive in the courtroom any time soon. Nevertheless, as knowledge of neuroscience becomes more reliable and more easily accepted by both the larger legislative community and in the wider public, through which neuroscience filters into epistemic and judicial reliability, the two will ultimately find themselves in front of a judge. A pragmatist view of neuroscience will aid and underlie these events. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not (...) conceive of themselves as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

Frederic Kellogg has already published several works on legal pragmatism and on Oliver Wendell Holmes in particular.1 In this volume, he focuses on the early history of Holmes' views, on his readings in law and philosophy, and his interests in science in the years of the Metaphysical Club. Drawing on sources like Francis Bacon, John Stuart Mill and Chauncey Wright, Holmes developed an inductive approach to common law reasoning; eventually, as I discuss below, this approach needed refinement when (...) he engaged with constitutional interpretation. Other parts of the book focus on contemporary issues like legal indeterminacy, hard cases, the role of politics in legal interpretation, Rorty's neopragmatism, liberalism and... (shrink)

In Bancoult, a majority of the House of Lords upheld the British government's use of the royal prerogative to expel the population of the Chagos Islands from their homeland. The majority acknowledged that the government's treatment of the Chagossians was disturbing, but held that the law left them with no choice but to hold the orders valid. In this article, I draw a parallel between this decision and the 18th-century judicial response to the Zong affair—where over a hundred slaves were (...) thrown off a ship to drown in the sea. Both decisions are cloaked in formalist rhetoric but, as I show through an examination of the law as it stood prior to each of the decisions, the actual legal reasoning in both decisions is so without basis as to be unsustainable on any formalist or legalist account. Rather, the decision in Bancoult, like the decision in the Zong, shows all the hallmarks of being a purely pragmatic one, prompted by broader concerns as to the practical impact of a contrary decision and the precedent it would set. The inherent limitations of this mode of judicial reasoning make its deployment in Bancoult troubling. (shrink)

ABSTRACTIn this paper I reassess the place of Plato’s Laws in the history of legal thought. The Laws has been traditionally considered to present a natural law theory of law. I argue instead that it presents a positivist account of the nature of law. Through analysis of some key passages of the Laws I argue that in that dialogue law is identified with conclusions of enkratic civic reason that may systematically conflict with precepts of substantive moral reason. I also (...) argue that in the Laws the rule of law is a precondition of a legal system but lacks inherent moral significance. For the rule of law to obtain there needs to be some compromise between the political interests of rulers and subjects which is grounded on political pragmatism and not on moral considerations. (shrink)

ABSTRACT This article explores what the contours of a pragmatist theory of rhetoric would be like in its democratic instantiation. The threat of partisan thought and dogmatism in argument is examined as a threat to the sort of democratic community pragmatists such as John Dewey desired to create. Partisans fail to realize not only their own limitations in pursuing the true and the good but also the fact that solving problems through overly partisan forms of reasoning or argument (...) only creates future obstacles to community life. This provides an extended reading of what Dewey meant by free communication: communication not only free from legal constraints and censorship but also free from the binding habits of thought and interaction that can be identified as “partisan perfect reasoning.”. (shrink)

Williams’s well-known critique of the ‘moralism’ of liberal political philosophy—its disconnect from political reality—holds special significance for the theory and practice of constitutional adjudication, where calls for ‘realism’ increasingly resound. Is constitutional discourse also guilty of moralism—as Williams himself thought—or might it succeed where political philosophy has failed? This paper reconstructs Williams’s critique of political moralism as one that decries the empty idealism of the philosophical project of abstraction: the quest for general, timeless, and universal principles drains theory of its (...) prescriptive force. It then argues that legal-constitutional reasoning, even in its most ambitious ‘forum of principle’ conception, is not a flight to abstraction but precisely a pragmatist negotiation of the concreteness-abstraction tension through acts of justification. But constitutional discourse in its current form remains moralistic in another distinct sense: it idealizes the political, thereby failing to account for the social and political pressures on courts and the proper normative significance of institutional considerations. Constitutional discourse could only offer a solution to the ailments of political philosophy if it cures its own chronic idealization. (shrink)

The paper argues for a pragmatist understanding of the reasonable doubt standard in law. It builds on the idea that our dispositions to act signal the epistemic states we are in. This helps clarify the notion of a reasonable doubt and the idea of being certain beyond it. More specifically, the paper points out three major standards of proof used in legal contexts and the rationale of their distinction. It articulates the received view according to which the reasonable (...) doubt standard is superior to allegedly subjective standards as the French “intime conviction”; then it addresses what I call the “rampant critique” of the reasonable doubt standard, namely the view that, as the notion of a reasonable doubt is obscure and undetermined, the standard is irremediably subjective. The paper finally presents a pragmatist understanding and defense of the standard, building on the idea of beliefs as dispositions to act. (shrink)

Poetic Interaction presents an original approach to the history of philosophy in order to elaborate a fresh theory that accounts for the place freedom in the Western philosophical tradition. In his thorough analysis of the aesthetic theories of Hegel, Heidegger, and Kant, John McCumber shows that the interactionist perspective recently put forth by Jürgen Habermas was in fact already present in some form in the German Enlightenment and in Heidegger's hermeneutic phenomenology. McCumber's historical placement of the interactionist perspective runs counter (...) to both Habermas's own views and to those of scholars who would locate the origin of these developments in American pragmatism. From the metaphysical approaches of Plato and Aristotle to the interactionist approaches of Habermas and Albrecht Wellmer, McCumber provides an original narrative of the history of philosophy that focuses on the ways that each thinker has formulated the relationships between language, truth, and freedom. Finally, McCumber presents his critical demarcation of various forms of freedom to reveal that the interactionist approach has to be expanded and enlarged to include all that is understood by "poetic interaction." For McCumber, freedom is inherently pluralistic. Poetic Interaction will be invaluable to political philosophers, historians of philosophy, philosophers of language, and scholars of legal criticism. (shrink)

Many irreconcilable accounts of ratio legis in legal science, often concerned with legal interpretation, suffer from being disconnected from practical reasoning. Different theories of legal interpretation which result in one-sided views of ratio legis are by-products of one-sided semantics. The first part of the chapter diagnoses this problem by providing a model of three types of one-sided semantics—upstream, midstream and downstream—and explaining how they translate into respective accounts of legal interpretation and ratio legis. The second (...) part of the chapter presents an alternative to one-sided semantics in legal theory. The alternative account which combines semantics and practical reasoning in legal theory is based on Brandom’s inferential pragmatism. The usefulness of inferential pragmatism in legal theory with regard to the problem of ratio legis is tested and followed by extending an inferentialist account of ratio legis provided by Canale and Tuzet. A model of agent’s actions and reasons, and their impact on the reasoning of interpreters and decision-makers is the essential part of this extension. (shrink)

Legal reasoning is an engaging field for cognitive science, since it raises so many fundamental questions, such as the representation and evolution of complex concepts. This article focuses on aspects of legal reasoning that require reasoning with cases, often in concert with other modes of reasoning.

This book considers the seminal debate in jurisprudence between Ronald Dworkin and Stanley Fish. It looks at the exchange between Dworkin and Fish, initiated in the 1980s, and analyses the role the exchange has played in the development of contemporary theories of interpretation, legal reasoning, and the nature of law. The book encompasses 4 key themes of the debate between these authors: legal theory and its critical role, interpretation and critical constraints, pragmatism and interpretive communities, and some (...) general implications of the debate for issues like the nature of legal theory and the possibility of objectivity. The collection brings together prominent legal theorists and one of the protagonists of the debate: Professor Stanley Fish, who concludes the collection with an interview in which he discusses the main topics discussed in the collection. (shrink)

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and (...) against judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law. (shrink)

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision (...) makers practise special forms of reasoning is false. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Utilitarianism in the Early American Republic by James E. CrimminsAndrew GustafsonUtilitarianism in the Early American Republic James E. Crimmins. Routledge, 2022.There are many important influences on American Pragmatism, but one which is frequently overlooked is the influence of Utilitarianism, both on American thought in general, and American Pragmatism in particular. It is difficult to imagine anyone better to write this book than James Crimmins. As a leading Bentham (...) scholar, among his twelve previously published books on utilitarianism, he is editor of the Bloomsbury Encyclopedia of Utilitarianism (Bloomsbury, 2013) and the four-volume set Utilitarians and Their Critics in America, 1789–1914 (Thoemmes Continuum, 2005). His vast knowledge of the history of utilitarianism, which he has spent his entire career investigating, makes him the perfect author for this very helpful book on the influences of utilitarianism in early American thought. It is a rich sourcebook that can help direct anyone looking to do more research in this area. Here, Crimmins provides a thorough historical account of the influence of utilitarianism on the development of early American thought and the rise of pragmatism, giving reason to believe that utilitarianism was more impactful on American pragmatism than is often realized.The first chapter highlights why utilitarian influence on American law and politics is overlooked and why it should not be. Chapters 2 and 3 explain how American thought leaders came to know of Bentham's work, and chapters 4–7 discuss concrete examples of thinkers who brought utilitarianism to bear on issues in America (for example, Hoffman on legal studies in chapter 4, Livingston on legislative law in chapter 5, the death penalty debate in chapter 6, and Thomas Cooper's wide-ranging influences in chapter 7). The epilogue provides a specific set of arguments for why the utilitarians' influence on American Pragmatism should be more widely recognized and investigated.Crimmins begins the book by explaining why utilitarianism, as an influence in early American politics, is typically excluded and ignored by thinkers from John Dewey to Élie Halévy. One reason is that William Paley's Principles of Political and Moral Philosophy (which was used widely as a moral text in US universities throughout the 1800s) was published in 1785, and Bentham's An Introduction to the Principles of Morals and Legislation was published in 1789, and even then Bentham's ideas didn't gain public circulation (and then only in French) until Etienne Dumont published the three-volume Traités de législation civile et pénale in 1802. But the more important reason utilitarianism [End Page 106] has not received attention, according to Crimmins, is due to the dominant focus placed on Locke's natural law and rights view being the lens by which American politics has been understood. Some have challenged this Lockean consensus and pointed out that republican virtues drawn from the ancient Greeks and others show up in ideas such as the "right to happiness" (which is a right that is found nowhere in Locke) (20). Crimmins shows that there was a very strong emphasis on "public utility," "general welfare," and happiness, and this frequently outweighed concerns for natural rights for thinkers like Thomas Paine, John Adams, Nathaniel Chipman, Joseph Haven, and many other early American thinkers. Furthermore, utilitarian considerations can be found in the Constitution and federalist papers, and even Tocqueville explained American thinking through the lens of utilitarian concerns.Bentham was ambitious in attempting to promote codification of law in many countries worldwide. While Bentham had made offers (some accepted, some rejected) to help in the codification of law to various countries, ranging from Catherine the Great's Russia to France, Portugal, Spain, and numerous South American countries, he spent much of the last quarter of his life focused on trying to provide his services to the new United States. In chapter 2, Crimmins provides a history of the dissemination of Bentham's ideas in the United States, highlighting some of the key promoters of his ideas in the United States, including Richard Hildreth and John Neal, as well as John O'Sullivan, Gilbert Vale, and, of course, Thomas Cooper. Crimmins also provides a meticulous account of Bentham's personal attempts... (shrink)

Automated legal reasoning and its application in smart contracts and automated decisions are increasingly attracting interest. In this context, ethical and legal concerns make it necessary for automated reasoners to justify in human-understandable terms the advice given. Logic Programming, specially Answer Set Programming, has a rich semantics and has been used to very concisely express complex knowledge. However, modelling discretionality to act and other vague concepts such as ambiguity cannot be expressed in top-down execution models based on (...) Prolog, and in bottom-up execution models based on ASP the justifications are incomplete and/or not scalable. We propose to use s(CASP), a top-down execution model for predicate ASP, to model vague concepts following a set of patterns. We have implemented a framework, called s(LAW), to model, reason, and justify the applicable legislation and validate it by translating (and benchmarking) a representative use case, the criteria for the admission of students in the “Comunidad de Madrid”. (shrink)

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important (...) implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. (shrink)

Presidential pardon has always existed in criminal law and continues to constitute a very important competence of the head of state in many modern day countries. In the past, the clemency given by the sovereign represented an act which showed his/her mercy upon their subjects. It was often used as a tool to show the arbitrary will of the sovereign that constituted the law, rather than the law itself. Therefore, the classical school of criminal law that appeared in the 18th (...) century and emphasized the importance of the principle of legality, opposed harshly every kind of arbitrary deciding that excluded the law at the interest of the sovereign. This school is among the only interpretations of criminal law that engages for a complete abandonment of institutes such as pardon or amnesty. The revolutionary French Penal Code of 1791, which was strongly influenced by the classical school, excluded clemency for the proved wrongs that were severely punished. However, due to imperfections of the criminal justice system, amnesty and pardon or clemency, continue to exist and to be used in modern day criminal law. They are no longer considered acts of arbitrary decisions of the sovereign, instead they should represent important instruments of criminal law, used rarely and wisely with specifically designed goals that aim to bring justice rather than deny it. However, there are many cases when these institutes have been inappropriately used in a very arrogant way which shows that the ancient regime is not yet over for some countries in which the highest institutions continue to act as old and middle age despots. This article will analyze the legal reasoning of the institution of presidential pardon. It will try to establish why the classical school was so strictly opposed to this institute making use of the studies and interpretations found in the writings of Cesare Beccaria. It will explain the philosophy of modern day institutions of amnesty and pardon and the way in which they are regulated in the legal theory and practice. The article will explain the recent developments in Macedonia in regard to the use of presidential pardon. The methods to be used consist of desk research, historical and comparative methods and analysis of legal texts, laws and judicial decisions. (shrink)

This is a reply to Alex Guerrero’s, Erin Kelly’s and Gabe Mendlow’s commentaries on Gideon Yaffe’s The Age of Culpability: Children and the Nature of Criminal Responsibility. The reply focuses on their objections concerning the nature of legal reasons, desert, and the political arrangements that make a difference to criminal culpability.

This paper attempts to shed light on the dynamics of criminal adjudication. It starts by exploring some significant—and often ignored—similarities and dissimilarities between the practices and disciplines of, respectively, legal reasoning and fact finding. It then discusses the problem of defining the nature of these processes—legal reasoning, in particular—in terms of their being instances of practical or theoretical reasoning. Thus understood, the problem is shown to be distinct from two traditional questions of jurisprudence, namely whether (...) law consists of facts and, if so, whether these facts are social or moral. Two theses are proposed as solutions to the problem: 'in the majority of cases legal reasoning is theoretical', and 'when legal reasoning is practical it generally involves complex theoretical operations'. Finally, the paper shows how T1 and T2 can make sense of the phenomena presented at the outset. (shrink)

The first part of this work analyses the universalist and the particularist conceptions of reasons. The second part projects this analysis to the legal domain. The author stresses that universalism and particularism regarding reasons are mutually exclusive theories linked to incompatible conceptions of norms, i.e. norms as strict universal conditionals and norms as defeasible conditionals. In giving an account of this tenet, different meanings of universality and defeasibility are explored. A parallel debate regarding reasons can be found in the (...) legal domain, where two contrasting categories of norms are usually distinguished: rules and principles. On this issue the author argues that the conception of legal reasons depends on the way in which this contrast between different kinds of legal norms is shaped. (shrink)

This paper suggests a way of thinking about the legal reasoning done by conscientious judges working in a legal system during periods when those judges believed that their Supreme Court was malfunctioning. Seeing a legal system as a shared cooperative activity allows us to best understand how legal decision-making can remain consistent when it contains elements at the highest level which are believed not to be functioning properly.

What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.

The first part of this article contains an analysis of the concept of a right, which implies a rational structure of reasoning about rights, elaborated in the second part. In the third part both the concept of a right and reasoning about rights are connected with the theory of rational discourse. The author's thesis is that there exists an internal relation between the theory of rights and the theory of legal reasoning.

Wigmore thought that there was a science of proof underlying legal reasoning that could be displayed in any given case as a graphic sequence of argumentation from the evidence in the case leading to the ultimate probandum. Argumentation technology has now vindicated this approach by providing useful qualitative methods that can be applied to identifying, analyzing, and evaluating the pro and con arguments put forward by both sides in a trial. In this chapter, it is shown how to (...) apply argumentation schemes, such as argument from witness testimony, using argument diagrams applied to typical sequences of evidence-based legal reasoning in which there is a successive refinement of arguments displayed as the evidence comes into a case. It is shown how argument from applying rules to cases, teleological, argument from expert witness testimony, and abductive reasoning are centrally important for this purpose. (shrink)

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal (...) class='Hi'>reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them. (shrink)

The First World Congress on Evidential Legal Reasoning, organised by the Legal Culture Chair of the University of Girona, was held between June 6 and 8, 2018. The Congress was attended by 350 participants and featured 18 speakers from four continents. The three days of formal and informal presentations and discussions yielded excellent results, strengthening the interrelation between the legal communities and specialists of different traditions. The 18 papers from the Congress, reviewed by their authors based (...) on the discussions and the suggestions made at the Congress, have been compiled in this book. (shrink)

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive (...) moral doctrines. The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public. (shrink)

This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The paper consists of three parts. The first part describes a model of legal reasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal (...) rules which in a sense summarise the outcome of the interaction of the principles and goals for a number of case types. Both principles, goals and rules can be used in legal arguments, but their logical roles are different. One characteristic of the model of legal reasoning described in the first part of the paper is that it takes these logical differences into account. Another characteristic is that it pays serious attention to the phenomena of reasoning about the validity and acceptance of rules, respectively principles and goals, and about the application of legal rules, and the implications of these arguments for the use of rules, principles and goals in deriving legal conclusions for concrete cases.The second part of the paper first describes a logic (Reason-Based Logic) that is especially suited to deal with legal arguments as described in terms of the previously discussed model. The facilities of the logic are illustrated by means of examples that correspond to the several aspects of the model. (shrink)

Legal Reason describes and explains the process of analogical reasoning, which is the distinctive feature of legal argument. It challenges the prevailing view, urged by Edward Levi, Cass Sunstein, Richard Posner and others, which regards analogical reasoning as logically flawed or as a defective form of deductive reasoning. It shows that analogical reasoning in the law is the same as the reasoning used by all of us routinely in everyday life and that it (...) is a valid form of reasoning derived from the innate human capacity to recognize the general in the particular, on which thought itself depends. The use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. Written for scholars as well as students and persons generally who are interested in law, Legal Reason is written in clear, accessible prose, with many examples drawn from the law and from everyday experience. (shrink)

Reasoning with cases has been a primary focus of those working in AI and law who have attempted to model legal reasoning. In this paper we put forward a formal model of reasoning with cases which captures many of the insights from that previous work. We begin by stating our view of reasoning with cases as a process of constructing, evaluating and applying a theory. Central to our model is a view of the relationship between (...) cases, rules based on cases, and the social values which justify those rules. Having given our view of these relationships, we present our formal model of them, and explain how theories can be constructed, compared and evaluated. We then show how previous work can be described in terms of our model, and discuss extensions to the basic model to accommodate particular features of previous work. We conclude by identifying some directions for future work. (shrink)

I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in the (...) idea of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws. (shrink)

Legal reasoning is not the same as the reasoning in mathematics or the physical sciences. It is like them. Specifying the likeness in more detail, and deciding whether there is more likeness than unlikeness, are the kinds of tasks that legal reasoning is better adapted to do than mathematical or scientific reasoning.

In this paper, I consider and question an influential position in Anglo-American philosophy of action which suggests that reasons for action must be internal, in other words that statements about reasons for actions must make reference to some fact or set of facts about the agent and her desires. I do so by asking whether legal requirements could be considered as reasons for actions and if in so considering them one must translate statements about legal requirements into statements (...) about the psychological state of the agent fulfilling those requirements. Since such a process of translation seems neither necessary nor desirable, I suggest that the crudest forms of the internalist position are found wanting. I discuss a more sophisticated form of internalism put forward by Bernard Williams and criticised by John McDowell. I extend McDowells argument to cover legal reasons and suggest that Williams argument fails to recognise that reasons for action entail standards of correctness that are irreducible to facts about individual character and motivation. I conclude with a brief description of the justificatory status of legal requirements. (shrink)