Truisms, Heuristics and the Concept of Law

2016

I will focus on legal reasoning in the U.S., addressing Gerd Gigerenzer's conception of heuristics as " fast and frugal " mechanisms that he calls " ecologically rational. " This will be a response to the claim that in legal matters there is not an optimal, logical, approach to decision-making, and thus heuristics are the best option. But the use of such shortcut devices can morph into, or already are, negative racial stereotypes that are never employed in the service of the truth. These mechanisms are implicit yet impactful on the legal system—an institution that prides itself on seeking the truth.

The Nature and the Place of Presumptions in Law and Legal Argumentation

This paper explores two persistent questions in the literature on pre- sumptions: the place and the nature of presumptions in law and legal argumentation. These questions were originally raised by James Bradley Thayer, one of the masters of the Law of Evidence and the author of the classic chapter devoted this subject in A preliminary treatise on Evidence (1898). Like Thayer, I believe that these questions deserve attention. First the paper shows that the connection between presumptions and argumentation is a constant feature in the literature on pre- sumptions, since its foundation in the Middle Ages to modern times. James Bradley Thayer was probably the last jurist who clearly saw that presumptions belong to argumentation. Second, the paper examines two sources of controversy in the language of presumptions. First, ‘‘presumption’’ is an ambiguous word in the legal discourse. As a result, it is almost impossible to provide a clear and succinct answer to the question ‘‘What is a presumption?’’. Second, there are at least four recon- structions of the concept of presumption whose merits and shortcomings are rele- vant to explore. The analysis presented here may be of interest for legal and non- legal scholars and, hopefully, it may help to shed light on the possibilities and limits of an interdisciplinary dialogue about presumptions. The final publication is available at https://link.springer.com/article/10.1007/s10503-016-9417-3

Insights and Feedback Greatly Appreciated! This paper advances a novel hybrid theory addressing a fundamental puzzle in legal philosophy: how legal statements can simultaneously have both cognitive and practical features. Drawing on contemporary developments in metaethics and philosophy of language, we argue that legal statements express both beliefs and desire-like attitudes. My analysis yields three key findings. First, I demonstrate that within any given legal system, the descriptive content of legal statements remains invariant across different contexts of use and assessment – a feature that explains persistent patterns of legal disagreement, retraction and attribution of responsibility for content. Second, I show that the desire-like states expressed by legal statements are uniformly directed at the general property picked out by “It is the law that…” rather than at particular legal norms, regardless of the speaker – thereby preserving their inference-licensing property and evidential function. Third, I identify generalized conversational implicature as the mechanism through which legal statements convey desire-like states explaining their distinctive pragmatic features. This theoretical framework offers a novel solution to the puzzle of legal motivation: rather than positing a necessary conceptual link between legal judgment and motivation, it explains their characteristic connection through the general action-guiding purpose of legal discourse and Gricean conversational principles.

International Journal for the Semiotics of Law, 2018

Please click URL for full text. Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners.

F. Macagno and D. Walton, Ratio Juris, 25(3), 2012, 271-300.

Presumptions simply disappear, like bats in the twilight, once enough evidence comes to be known to dispense with them. In this paper presumption is defined at the inferential and the dialectical level. At the inferential level, a presumption is defined as an inference to the acceptance of a proposition from two other propositions called a fact and a rule. At the dialectical level, a presumption is defined in terms of its use or function in a context of dialogue.

There are two competing views on what makes propositions of law true. The one, legal realism, takes it that propositions of law are true because they reflect an independently existing reality of legal facts. These facts would be generated by legal rules which would operate autonomously, without need for human intervention. The institutional theory of law illustrates this view. On this view it is the function of legal arguments to reconstruct the results of the autonomous rule application. The other view is legal constructivism, according to which propositions of law are true because they are the conclusion of the best (possible) legal argument. On this view the function of legal argumentation is constitutive: argumentation determines the contents of the law. This paper argues that legal realism is not very plausible because it is based on metaphysical assumptions which cannot be verified or falsified. Legal constructivism would be more plausible, in particular in the variant where the law is determined by the best actual legal argument. This position is defended by means of a brief exposition of the so-called ‘Erlanger-approach’ to legal justification.

Suri: Journal of the Philosophical Association of the Philippines, 2021

A general jurisprudential theory explains the essential features of law. The objective of this paper is to provide a comparison of three kinds of jurisprudential theories that have dominated legal philosophy in the last seventy years. First, there are semantic theories that seek to understand the nature of law by digging out shared linguistic criteria that designate the correct use of legal terms. Second, there are interpretive theories that take the perspective of the judge in constructing the most moral interpretation the law to determine what it "really" says on a case. And third, there are conceptual theories which explicate the logical presuppositions, implications, and concepts that underlie legal phenomena and reveal more than what is made obvious by language. This paper shall also defend Legal Positivism-the view that law has social foundations-against Ronald Dworkin's objection known as the "semantic sting", which claims that positivists are unable to account for the existence of deep controversy in legal practice by virtue of allegedly treating law as a trivial linguistic enterprise. It shall argue, alternatively, that deep controversy occurs because law is an "essentially contested concept", which in turn occurs because law is a complex social institution.

2006

I. INTRODUCTION Neil Mac Cormick first put forward his thoughts on legal reasoning in a book entitled Legal Reasoning and Legal Theory (hereinafter Legal Reasoning). 3 MacCormick's aim in Legal Reasoning was to explain the nature of legal argumentation as it manifests itself in court decisions. 4 He focused on the legal systems of the United Kingdom, specifically English and Scots law, although he suggested that the claims he made about UK law deserve to be tested with respect to other legal systems, at least insofar as they are grounded in more general philosophical • 5 1. Regius Professor of Public Law and the Law of Nature and Nations. 2. Associate Professor in Jurisprudence, Department of Law, Uppsala University (Sweden). I would like to thank Brian Bix for helpful comments on this review. 3. NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (2d ed. 1994) (hereinafter, MACCORMICK, LRLTJ. 4. /d. at 7. 5. /d. at 8. 6. /d. at 15. 7. /d. at x.

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.