HUME, LOGICAL INDUCTION AND LEGAL REASONING-2.pdf

After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of “reasoning from particulars to particulars.” In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification. Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where Peirce addressed the improper use of the syllogism with respect to “occasions,” as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched in the common law.

Law as a regulator of the conduct of social subjects cannot be directly equated with other methods of controlling the behavior in society. The grounds of legally significant actions allow determination of the context of the application of legal rules. The meaning of each legal term, as argued by L. Wittgenstein, depends on its " context of use " and the conventions of use at the moment. Therefore, the interpretation of the rules cannot be based solely on the principles of logic and be completely neutral. On the one hand, " we follow the rule blindly " , but at the same time, the repeatability of the behavior of other people and the ability to observe their behavior (by analogy with the mathematical concepts of addition and sum) encourage " learning " the rules and acting in accordance with the rules. The ascription of the legal language and the " imputation " principle of the legal interpretation of facts allow defining a key concept that cannot exist beyond the constructed social reality. The attempts to analyze non-legal factors appeal not to legal arguments but to other phenomena. The legal term in its nature not only describes empirical facts but also encourages action. The most dismal example of a change in philosophical argumentation and legal reasoning in the philosophy of law is the influence of Quine's arguments. In the context of the methodology of legal explanation, the naturalization of the epistemology of law is possible only when the limitations and specifics of traditional methods of interpretation of legal reality are considered. The article focuses on the analysis of some arguments made by the analytical legal philosophers regarding the linguistic content of legal rules with no reference to any social determination or formulation of the significant judgments about the linguistic nature of legal reality.

Perspectives in Pragmatics, Philosophy & Psychology, 2016

According to Hartian positivists, law is a conventional practice that requires a convergence that includes not only the regularity of behavior but also of certain beliefs and attitudes. It is easy to conclude that in this framework the meaning of terms is determined by shared criteria that are transparent to all parties, a form of semantic descriptivism. This, at least, is the way in which Dworkin and his followers have interpreted Hart's positivist stance. The problem is that disagreements often arise on how to interpret the words of the law, and this fact seems to conflict with the emphasis of positivism on the idea of agreement, or so it is argued. If the meaning of legal terms depends on shared criteria, why do individuals disagree? And if they disagree, what does their disagreement consist in? 2 We use the word "conventional" in a more flexible way than Lewis (1969) and the authors that discuss him. Regarding the conventional nature of law, see (Marmor 2009) and (Vilajosana 2010). 3 There is an important difference, often missed, between interpretive disagreements, disagreements about the concept of law and disagreements about the sources of the law, among others. Here we will analyze only interpretive disagreements, that is, disagreements about the content of the law. 4 Descriptivism finds its inspiration in the semantic theories of Gottlob Frege and Bertrand Russell. Russell (1910-1911 and other works) explicitly defended that referential terms such as proper names are abbreviations of definite descriptions. Frege's commitment to descriptivism is debatable. According to Frege (1892) what determines the reference of expressions is a sense, conceptual

After attending lectures on induction by C.S. Peirce in 1866 and reading J.S. Mill’s System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of “reasoning from particulars to particulars.” But he added an element of the emergence of generals from particular judgments, in the social context of legal disputes. Here, the bearing of particular to general is one of consensual emergence, integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of knowledge through the tension between facts and ideas. Legal and scientific knowledge may be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of intersubjective classification, and the role of concepts and theories in guiding the conduct of professional inquirers, framing and maintaining the coherence of expert and general belief.

International journal for the semiotics of law, 2000

The purpose of this article is to examine how various forms of reasoning both can and should be used to decide cases in the common law tradition. I start by separating positive questions about what the law is from normative questions about what the law ought to be. Next, I present a Peircean account of three main forms of reasoning-deduction, induction and abduction-and examine how they can be used by judges to decide cases in the common law. Finally, I argue that the three forms of reasoning can be used to answer both kinds of questions, but in different ways. All three forms of reasoning can be used to answer questions of positive law, while questions of normative law present a special case that may require the use of aesthetic judgments of taste in the formation of a legal hypothesis.

Acta Juridica Hungarica, 2007

International Journal of Language & Law vol. 13, 2024

This paper examines the interrelation of linguistic precedent and legal precedent, employing the lens of formulaic language as a bridge between these two domains. The first part of the paper is concerned with the argument that linguistic precedent is a form of linguistic replication. This argument is based on the premises that a) language repetition is a form of linguistic replication, b) that language use is a form of repetition and c) that linguistic precedent is a form of language use. The evidence for these premises is provided using insights and findings from Dawkins' meme theory, linguistics, history of law and cognitive science. After that I explore the semantic aspects of linguistic precedent and I propose that linguistic precedent is a form of linguistic replication by means of which two or more situations are represented as being the same. After discussing the theoretical foundations of the notion of linguistic precedent I suggest that linguistic precedent indicates to the reader that there are some more general principles and rules that underlie legal reasoning. I further propose that it is on the basis of such generalized casuistic relations between linguistically chained cases or casebased reasoning, that legal precedent emerges.

2016

Argumentation and the Application of Legal Rules

Reasoning from case to case not only characterizes the heuristics in common law tradition, but also legal adjudication on the basis of statutory rules. Both the interpretation of rules and the weighing and balancing of principles are directed by the plain cases. They serve as the heuristic starting points in legal reasoning, while the decision ensues from mutual comparison of cases rather than from interpretive strategies.

Australian Journal of Linguistics, 2013