Can legal reasoning be demystified?

The Cambridge Law Journal, 2009

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.

Philosophy in Review, 2010

SSRN Electronic Journal, 2021

In this paper, I argue that legal philosophers ought to focus more on problems of legal reasoning. This is a field with many philosophically interesting questions to consider, but also, a field in which legal philosophers can contribute the most to the study and the practice of law. Neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the relevance of the theory of reasons holism to legal reasoning. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, inductive arguments, or both, and if so how.

Cambridge University Press, 2020

How does a lawyer think? Does legal intuition exist? Do lawyers need imagination? Why is legal language so abstract? It is no longer possible to answer these questions by applying philosophical analysis alone. Recent advances in the cognitive sciences have reshaped our conceptions of the human mental faculties and the tools we use to solve problems. A new picture of the functioning of the legal mind is emerging. In The Legal Mind, Bartosz Brożek uses philosophical arguments and insight from the cognitive sciences to depict legal thinking as a close cooperation between three cognitive mechanisms - intuition, imagination, and language - and addresses the question of how to efficiently use these mental tools. This novel and provocative approach provides a fresh perspective on legal thinking and gives rise to important questions pertaining to the limits of legal interpretation and rationality in the law.

Archiwum Filozofii Prawa i Filozofii Społecznej, 2019

This paper traces, examines and demonstrates Neil MacCormick’s theory of legal reasoning and its evolution. MacCormick’s views shaped gradually, therefore his theory could be divided into two main stages. Thus, a diachronic approach is justified. The aim of this paper is to analyse the difference between the theses of the theory of legal reasoning explained in Legal Reasoning and Legal Theory (1978) and general revisions to this theory marked in Rhetoric and the Rule of Law (2005). According to the author, the most important change in MacCormick’s theory of legal reasoning is the re-examination of the role of deductive reasoning in the process of judicial reasoning. This change leads to extension of the logical aspects of MacCormick’s theory of legal reasoning (legal syllogism) to include rhetorical aspects (argumentative character of law) and ethical aspects (the idea of the rule of law).

The aim of this paper is to present some short reflections on legal reasoning, trying to outline, at first, a brief description of some theories developed on this topic and, then, possible guidelines for a proposal able to face some problems entailed by them. From this point of view, our main intention – according to the general aim of the volume in which this essay is contained – is to present legal reasoning as an issue to discuss rather to present a complete overview on it, which is, surely, one of the most important key-topic in contemporary philosophy and theory of law.

Anyone Who Has a View: Theoretical Contributions …, 2003

In this chapter I would like to substantiate the thesis that legal reasoning is never purely rule-based nor case-based, as it always requires a kind of interplay between abstract rules and concrete legal decisions. In order to do so, I begin by formulating two thought experiments: one, in which a highly abstract normative order is imagined and its limitations analysed; and the other, which considers a normative order consisting of particular cases only and pinpoints its failure to deliver a solid foundation for legal decisions. I further argue that the problematic features of purely abstract and purely concrete normative systems detected in both experiments are also present in, respectively, the civil law and the common law traditions. I conclude by indicating that there is no functioning legal system without a constant “dialogue” between the abstract and the concrete.

Forum Prava, 2021

Problem statement. This article deals with the general problem of the connection between legal thinking, legal argumentation and, on the other hand, logic. Although this connection seems clear and undeniable since ancient times, various discussions about it continue to this day. The purpose is to explore one important aspect of this connection, namely, does traditional formal logic determine the relevant form of a jurist's thinking and argumentation completely? To reach this purpose, the method of comparative analysis is employed both synchronically and diachronically. First, in order to substantiate the importance of the issue, a diachronic comparison of several basic approaches is carried out (G.W. von Leibniz, O.W. Holmes Jr., etc.). Then a comparative analysis of the views of some contemporary experts is carried out, especially Ilmar Tammelo and Stephen Toulmin. As a result, it is argued that there is special legal validity in the field of law. Legal validity is determined primarily not by the value of the formal or material true, but by the value of the right directly and mainly. It differs essentially from formal-logical validity. Legal validity is not the subject of formal logic, but special legal logic and, more broadly, informal logic. It is pointed out that traditional formal logic does not determine the relevant form of legal thinking and argumentation completely, because there is the essential difference between formal-logical validity and legal validity. In other words, formal logic is neither sufficient nor necessary to think like a jurist. In this regard, it is shown that the logical standard of proof is not sufficient to determine the relevant form of valid legal proof, for example, proof beyond a reasonable doubt. Moreover, there are at least three kinds of legal proof-not only proof without reasonable doubt, but also proof by clear and convincing evidence, proof by the preponderance of the evidence. Each of them has its own special standard, which differs significantly from the formal-logical one. The conclusion is this: one cannot say that formal logic is useless in the field of law; however, in order to think and argue like a successful jurist, one must grasp and use special legal logic without any exceptions (legal logic belongs to the contemporary informal logic domain).