International journal of legal discourse, Apr 1, 2016
This article focuses on methods for studying legal argumentation in civil law case law material, ... more This article focuses on methods for studying legal argumentation in civil law case law material, more specifically argumentation as part of a discourse of subsumption as it is performed in civil procedure case law. The discourse of subsumption is described as revolving around a logic where legal norms are separated from non-legal norms and then matched with facts that are separated from non-(relevant)facts. The article describes theoretical and methodological possibilities of rewriting the discourse of subsumption into a discourse that approaches law as a normative and continuous process of 'becoming' rather than a discourse that revolves around the 'existence' of law. The advantage of such a reconstruction is that the focus on the process of 'becoming' provides answers to 'how-questions' rather than 'what-questions'. By studying case law material, not as an argumentation based on the representation of law but as an expression of legal argumentation, it is possible to gain a deeper understanding on how subsumption is performed and what kind of normative transformation it entails. The theoretical framework of the paper builds upon the notion of a flat ontology and discourse-and narratology-terminology. Methodological concepts such as legal enthymemes, narrative dissonance and overdetermined subject positions are presented as concrete tools to understand problematic aspects within the discourses of subsumption, revealing normative aspects of legal argumentation that is not openly legitimated within a discourse that revolves around the 'existence' of law.
The article addresses the role of legal theory in legal education. Today, a multitude of perspect... more The article addresses the role of legal theory in legal education. Today, a multitude of perspectives is present within legal theory and, as a subject, it is not as distinct as it is sometimes claimed to be. It is evident when considering syllabuses in the Nordic countries that nearly all LLM programmes have ambitions to teach legal theory as embracing a multitude of theoretical and methodological perspectives. This multitude of perspectives promises adaptable content for the subject of legal theory in various legal contexts, and could facilitate a reflection on how knowledge is acquired and why. The challenge addressed in the article is the presence of explicit or implicit ideas from the subject of legal theory as comprising a coherent “legal method” and a specific list of accepted theories. The persistence of such ideas is scrutinised in this article with help of the concepts of “professional knowledge” and “scholarly knowledge”. In order to navigate the complex field of legal the...
En rättsvetenskaplig narratologisk studie om argumentation och rättsliga uttryck inom civilproces... more En rättsvetenskaplig narratologisk studie om argumentation och rättsliga uttryck inom civilprocessen Akademisk avhandling som för avläggande av juris doktorsexamen offentligt framläggs och försvaras torsdagen den 1 juni 2017, kl. 10.00 i Volvo-salen, Handelshögskolan vid Göteborgs universitet, Vasagatan 1, Göteborg av Erik Björling, jur. kand.
Masaryk University Journal of Law and Technology, 2019
The article builds on a pluralistic perspective on law and the understanding that legal research ... more The article builds on a pluralistic perspective on law and the understanding that legal research must take into account the procedural and institutional landscape where legal rights are enforced. In relation to online dispute resolution (ODR), two procedural mechanisms, namely the adversarial principle and the tendency toward settlements, are studied and discussed. The adversarial principle (argued to be integral to most ODR procedures) and tendencies toward settlements (also argued to be integral to most ODR procedures) are considered in relation to the overarching (and possibly contradictory) objectives of protecting individual consumer rights and the interest of increasing economic efficiency within the EU’s internal market.
This article focuses on methods for studying legal argumentation in civil law case law material, ... more This article focuses on methods for studying legal argumentation in civil law case law material, more specifically argumentation as part of a discourse of subsumption as it is performed in civil procedure case law. The discourse of subsumption is described as revolving around a logic where legal norms are separated from non-legal norms and then matched with facts that are separated from non-(relevant)facts. The article describes theoretical and methodological possibilities of rewriting the discourse of subsumption into a discourse that approaches law as a normative and continuous process of ‘becoming’ rather than a discourse that revolves around the ‘existence’ of law. The advantage of such a reconstruction is that the focus on the process of ‘becoming’ provides answers to ‘how-questions’ rather than ‘what-questions’. By studying case law material, not as an argumentation based on the representation of law but as an expression of legal argumentation, it is possible to gain a deeper ...
International journal of legal discourse, Apr 1, 2016
This article focuses on methods for studying legal argumentation in civil law case law material, ... more This article focuses on methods for studying legal argumentation in civil law case law material, more specifically argumentation as part of a discourse of subsumption as it is performed in civil procedure case law. The discourse of subsumption is described as revolving around a logic where legal norms are separated from non-legal norms and then matched with facts that are separated from non-(relevant)facts. The article describes theoretical and methodological possibilities of rewriting the discourse of subsumption into a discourse that approaches law as a normative and continuous process of 'becoming' rather than a discourse that revolves around the 'existence' of law. The advantage of such a reconstruction is that the focus on the process of 'becoming' provides answers to 'how-questions' rather than 'what-questions'. By studying case law material, not as an argumentation based on the representation of law but as an expression of legal argumentation, it is possible to gain a deeper understanding on how subsumption is performed and what kind of normative transformation it entails. The theoretical framework of the paper builds upon the notion of a flat ontology and discourse-and narratology-terminology. Methodological concepts such as legal enthymemes, narrative dissonance and overdetermined subject positions are presented as concrete tools to understand problematic aspects within the discourses of subsumption, revealing normative aspects of legal argumentation that is not openly legitimated within a discourse that revolves around the 'existence' of law.
The article addresses the role of legal theory in legal education. Today, a multitude of perspect... more The article addresses the role of legal theory in legal education. Today, a multitude of perspectives is present within legal theory and, as a subject, it is not as distinct as it is sometimes claimed to be. It is evident when considering syllabuses in the Nordic countries that nearly all LLM programmes have ambitions to teach legal theory as embracing a multitude of theoretical and methodological perspectives. This multitude of perspectives promises adaptable content for the subject of legal theory in various legal contexts, and could facilitate a reflection on how knowledge is acquired and why. The challenge addressed in the article is the presence of explicit or implicit ideas from the subject of legal theory as comprising a coherent “legal method” and a specific list of accepted theories. The persistence of such ideas is scrutinised in this article with help of the concepts of “professional knowledge” and “scholarly knowledge”. In order to navigate the complex field of legal the...
En rättsvetenskaplig narratologisk studie om argumentation och rättsliga uttryck inom civilproces... more En rättsvetenskaplig narratologisk studie om argumentation och rättsliga uttryck inom civilprocessen Akademisk avhandling som för avläggande av juris doktorsexamen offentligt framläggs och försvaras torsdagen den 1 juni 2017, kl. 10.00 i Volvo-salen, Handelshögskolan vid Göteborgs universitet, Vasagatan 1, Göteborg av Erik Björling, jur. kand.
Masaryk University Journal of Law and Technology, 2019
The article builds on a pluralistic perspective on law and the understanding that legal research ... more The article builds on a pluralistic perspective on law and the understanding that legal research must take into account the procedural and institutional landscape where legal rights are enforced. In relation to online dispute resolution (ODR), two procedural mechanisms, namely the adversarial principle and the tendency toward settlements, are studied and discussed. The adversarial principle (argued to be integral to most ODR procedures) and tendencies toward settlements (also argued to be integral to most ODR procedures) are considered in relation to the overarching (and possibly contradictory) objectives of protecting individual consumer rights and the interest of increasing economic efficiency within the EU’s internal market.
This article focuses on methods for studying legal argumentation in civil law case law material, ... more This article focuses on methods for studying legal argumentation in civil law case law material, more specifically argumentation as part of a discourse of subsumption as it is performed in civil procedure case law. The discourse of subsumption is described as revolving around a logic where legal norms are separated from non-legal norms and then matched with facts that are separated from non-(relevant)facts. The article describes theoretical and methodological possibilities of rewriting the discourse of subsumption into a discourse that approaches law as a normative and continuous process of ‘becoming’ rather than a discourse that revolves around the ‘existence’ of law. The advantage of such a reconstruction is that the focus on the process of ‘becoming’ provides answers to ‘how-questions’ rather than ‘what-questions’. By studying case law material, not as an argumentation based on the representation of law but as an expression of legal argumentation, it is possible to gain a deeper ...
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