Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.001.0001
- Subject:
- Law, Philosophy of Law, Legal History
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of ...
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This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.Less
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.
Paul F. A. Bartha
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195325539
- eISBN:
- 9780199776313
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195325539.003.0007
- Subject:
- Philosophy, Logic/Philosophy of Mathematics
This chapter provides a defense of analogical reasoning by linking it to standard pragmatic virtues that guide us in the choice of scientific theories. The idea is based on a high‐level analogy ...
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This chapter provides a defense of analogical reasoning by linking it to standard pragmatic virtues that guide us in the choice of scientific theories. The idea is based on a high‐level analogy between science and the law. In case law, the basic justification for stare decisis (following precedent) is that it promotes consistency and predictability while still permitting the evolution of the legal system. We seek an analogous balance when we turn to plausibility arguments in science. It is argued that analogical arguments that satisfy the general principles of the articulation model strike an excellent balance between conservative epistemic values (such as simplicity and coherence with existing theory) and progressive epistemic values (such as fruitfulness and theoretical unification).Less
This chapter provides a defense of analogical reasoning by linking it to standard pragmatic virtues that guide us in the choice of scientific theories. The idea is based on a high‐level analogy between science and the law. In case law, the basic justification for stare decisis (following precedent) is that it promotes consistency and predictability while still permitting the evolution of the legal system. We seek an analogous balance when we turn to plausibility arguments in science. It is argued that analogical arguments that satisfy the general principles of the articulation model strike an excellent balance between conservative epistemic values (such as simplicity and coherence with existing theory) and progressive epistemic values (such as fruitfulness and theoretical unification).
Roberta Bosisio
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0013
- Subject:
- Law, Family Law, Human Rights and Immigration
The results of many studies show children's competence in terms of moral reasoning and action, and also their awareness of the discrepancy between their moral competence and the low moral status ...
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The results of many studies show children's competence in terms of moral reasoning and action, and also their awareness of the discrepancy between their moral competence and the low moral status attributed to them by adults. These findings confirm that teenagers internalize a developmental model of moral growth and that the low social position attributed by adults to them also influences children's self-image. This chapter presents some examples drawn from the findings of three studies on normative and legal socialization, which show that young people possess high moral and legal reasoning skills. Boys and girls who participated in interviews and focus groups showed high competencies and a good ability to use different justice and moral criteria as well as a strong and realistic sense of the complexity of different moral situations. Moreover, they displayed a considerable ability to draw on a vast array of rules and moral principles and also normative and legal systems, which they chose in a selective and complementary way according to each given situation.Less
The results of many studies show children's competence in terms of moral reasoning and action, and also their awareness of the discrepancy between their moral competence and the low moral status attributed to them by adults. These findings confirm that teenagers internalize a developmental model of moral growth and that the low social position attributed by adults to them also influences children's self-image. This chapter presents some examples drawn from the findings of three studies on normative and legal socialization, which show that young people possess high moral and legal reasoning skills. Boys and girls who participated in interviews and focus groups showed high competencies and a good ability to use different justice and moral criteria as well as a strong and realistic sense of the complexity of different moral situations. Moreover, they displayed a considerable ability to draw on a vast array of rules and moral principles and also normative and legal systems, which they chose in a selective and complementary way according to each given situation.
Lorenzo Zucca
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552184
- eISBN:
- 9780191709630
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552184.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and ...
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This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and the nature of conflicts among them. Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day. Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse. The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse.Less
This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and the nature of conflicts among them. Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day. Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse. The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.001.0001
- Subject:
- Law, Philosophy of Law
This book develops ideas on some of the central questions in practical philosophy: legal, political, and moral. It provides an overview of the author's work on jurisprudence and the nature of law in ...
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This book develops ideas on some of the central questions in practical philosophy: legal, political, and moral. It provides an overview of the author's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence, asking how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. The book offers responses to some critical reactions to the author's theory of authority, adumbrating and modifying the theory to meet some of them. The final part of the book brings together for the first time the author's work on the nature of interpretation in law and the humanities. It includes a new chapter explaining interpretive pluralism and the possibility of interpretive innovation.Less
This book develops ideas on some of the central questions in practical philosophy: legal, political, and moral. It provides an overview of the author's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence, asking how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. The book offers responses to some critical reactions to the author's theory of authority, adumbrating and modifying the theory to meet some of them. The final part of the book brings together for the first time the author's work on the nature of interpretation in law and the humanities. It includes a new chapter explaining interpretive pluralism and the possibility of interpretive innovation.
Matthias Klatt (ed.)
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.001.0001
- Subject:
- Law, Philosophy of Law
This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the ...
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This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.Less
This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0004
- Subject:
- Law, Philosophy of Law
This chapter begins with a discussion of the universality of the theses of the general theory of law. It argues that all successful legal theories are parochial; that success can be obtained only ...
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This chapter begins with a discussion of the universality of the theses of the general theory of law. It argues that all successful legal theories are parochial; that success can be obtained only through being parochial. It then focuses on the consequences of parochialism, law as the authoritative voice of a political community, and the instrumental and the non-instrumental views of law. The chapter also discusses the connection between authority and interpretation. First, it discusses the way in which the connection between law and authority leads to a dual interest in the study of law: an interest in the process leading to the authoritative laying down or endorsement of a standard, and an interest in how the fact that a standard has authoritatively been laid down affects its standing. Second, it considers consider the main way in which the fact that law is authoritative affects its interpretation. Finally, it considers the way in which the authoritative nature of law makes interpretation central to legal reasoning.Less
This chapter begins with a discussion of the universality of the theses of the general theory of law. It argues that all successful legal theories are parochial; that success can be obtained only through being parochial. It then focuses on the consequences of parochialism, law as the authoritative voice of a political community, and the instrumental and the non-instrumental views of law. The chapter also discusses the connection between authority and interpretation. First, it discusses the way in which the connection between law and authority leads to a dual interest in the study of law: an interest in the process leading to the authoritative laying down or endorsement of a standard, and an interest in how the fact that a standard has authoritatively been laid down affects its standing. Second, it considers consider the main way in which the fact that law is authoritative affects its interpretation. Finally, it considers the way in which the authoritative nature of law makes interpretation central to legal reasoning.
Brandon L. Bartels
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0003
- Subject:
- Psychology, Forensic Psychology
This essay offers a perspective on how social psychological insights regarding the cognitive processes of judgment can help enrich our understanding of judicial decision making. Such a focus ...
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This essay offers a perspective on how social psychological insights regarding the cognitive processes of judgment can help enrich our understanding of judicial decision making. Such a focus facilitates a greater understanding of a key inquiry in the study of judicial decision making: when ideology and legal considerations will exhibit greater or lesser effects on judges’ choices. I posit a theoretical framework of judging focusing on top-down versus bottom-up reasoning processes. The theoretical perspective is primarily aimed toward explaining decision making by Supreme Court justices, but the arguments are relevant to judges at other levels of the judiciary.Less
This essay offers a perspective on how social psychological insights regarding the cognitive processes of judgment can help enrich our understanding of judicial decision making. Such a focus facilitates a greater understanding of a key inquiry in the study of judicial decision making: when ideology and legal considerations will exhibit greater or lesser effects on judges’ choices. I posit a theoretical framework of judging focusing on top-down versus bottom-up reasoning processes. The theoretical perspective is primarily aimed toward explaining decision making by Supreme Court justices, but the arguments are relevant to judges at other levels of the judiciary.
S. L. Hurley
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.003.0005
- Subject:
- Law, Philosophy of Law
This chapter defends a coherence account of legal reasoning similar to Dworkin's. Coherence accounts of legal reasoning claim that what ought to be done when the reasons for various alternatives ...
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This chapter defends a coherence account of legal reasoning similar to Dworkin's. Coherence accounts of legal reasoning claim that what ought to be done when the reasons for various alternatives conflict is whatever the ‘best theory’ dictates (where the ‘best theory’, which is to be discovered through deliberation, is that which best displays as coherent the relationships among the conflicting reasons for the alternatives in question). A coherentist account is developed that treats settled actual cases and settled hypothetical cases as data to be accounted for by whichever theory, upon deliberation, is determined to be best. After sketching the account, an objection to coherentist accounts by Kenneth Kress is considered. Kress argues that coherentist accounts may give rise to retroactive application of legal principles when new cases are decided between the occurrence of the events litigated and the litigation of them. The chapter concludes that this problem does not arise for the coherentist account developed here.Less
This chapter defends a coherence account of legal reasoning similar to Dworkin's. Coherence accounts of legal reasoning claim that what ought to be done when the reasons for various alternatives conflict is whatever the ‘best theory’ dictates (where the ‘best theory’, which is to be discovered through deliberation, is that which best displays as coherent the relationships among the conflicting reasons for the alternatives in question). A coherentist account is developed that treats settled actual cases and settled hypothetical cases as data to be accounted for by whichever theory, upon deliberation, is determined to be best. After sketching the account, an objection to coherentist accounts by Kenneth Kress is considered. Kress argues that coherentist accounts may give rise to retroactive application of legal principles when new cases are decided between the occurrence of the events litigated and the litigation of them. The chapter concludes that this problem does not arise for the coherentist account developed here.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0008
- Subject:
- Law, Philosophy of Law
This chapter addresses the question: How can it be that rules are reasons when they do not point to a good in the action for which they are reason? This phenomenon is referred to as the opaqueness of ...
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This chapter addresses the question: How can it be that rules are reasons when they do not point to a good in the action for which they are reason? This phenomenon is referred to as the opaqueness of rules. It focuses on one type of rule — rules which are man-made — and which require conduct unconditionally. It argues that what is true of them is true of other man-made rules, but may not be true of other reason-constituting rules.Less
This chapter addresses the question: How can it be that rules are reasons when they do not point to a good in the action for which they are reason? This phenomenon is referred to as the opaqueness of rules. It focuses on one type of rule — rules which are man-made — and which require conduct unconditionally. It argues that what is true of them is true of other man-made rules, but may not be true of other reason-constituting rules.
David Hodgson
- Published in print:
- 1993
- Published Online:
- October 2011
- ISBN:
- 9780198240686
- eISBN:
- 9780191680236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198240686.003.0006
- Subject:
- Philosophy, Philosophy of Mind, Metaphysics/Epistemology
The previous chapter argued that the brain-mind has information which is not available to a non-conscious computer. This chapter argues that the brain-mind does use such information. The broad ...
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The previous chapter argued that the brain-mind has information which is not available to a non-conscious computer. This chapter argues that the brain-mind does use such information. The broad proposition of this chapter is that the conscious brain-mind uses rational procedures which have not yet been fully expressed as formal procedures by philosophers or scientists, and which probably cannot be so expressed. The point is that a non-conscious computer could not reason, or process information, except in accordance with algorithms. If the brain-mind does use rational procedures which cannot be fully expressed as formal procedures, then it is not mechanistic. In short, human reason cannot be formalized; therefore it cannot be mechanized; therefore the brain-mind is not mechanistic.Less
The previous chapter argued that the brain-mind has information which is not available to a non-conscious computer. This chapter argues that the brain-mind does use such information. The broad proposition of this chapter is that the conscious brain-mind uses rational procedures which have not yet been fully expressed as formal procedures by philosophers or scientists, and which probably cannot be so expressed. The point is that a non-conscious computer could not reason, or process information, except in accordance with algorithms. If the brain-mind does use rational procedures which cannot be fully expressed as formal procedures, then it is not mechanistic. In short, human reason cannot be formalized; therefore it cannot be mechanized; therefore the brain-mind is not mechanistic.
Niilo Jääskinen
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199232468
- eISBN:
- 9780191716027
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232468.003.0019
- Subject:
- Law, EU Law
This chapter analyzes the Finnish analytical legal positivism in the forms it took from the 1950s to the early 1970s, and explores what kind of questions that approach would entail for the study of ...
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This chapter analyzes the Finnish analytical legal positivism in the forms it took from the 1950s to the early 1970s, and explores what kind of questions that approach would entail for the study of EU law. It argues that the message of analytical legal positivism may be relevant for the study of European law even today. It underlines the need to rethink and redefine the traditional conceptual apparatus used in legal reasoning and legal science.Less
This chapter analyzes the Finnish analytical legal positivism in the forms it took from the 1950s to the early 1970s, and explores what kind of questions that approach would entail for the study of EU law. It argues that the message of analytical legal positivism may be relevant for the study of European law even today. It underlines the need to rethink and redefine the traditional conceptual apparatus used in legal reasoning and legal science.
Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.003.0002
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter provides a brief overview of scholarship that has examined the role of language in society and culture, in socialization practices, and in education. It concludes with a discussion of ...
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This chapter provides a brief overview of scholarship that has examined the role of language in society and culture, in socialization practices, and in education. It concludes with a discussion of the role of language in law, legal reasoning, and legal education. The resulting synthesis of insights from multiple disciplines provides the foundation for the model of language in social context used in this study. It is through language that social problems are translated into legal issues. At the broadest level, this study brings together two related inquiries. First, whether there is a distinctive approach to translation embodied in the canonical legal language taught to law students. If so, how people learn to use that distinctive language as they become legal professionals—in their first months of training to be the lawyers and judges whose voices and writings perform the act of legal translation. To address these questions, work in linguistics, anthropology, legal theory, social theory, educational research, and psychology is considered.Less
This chapter provides a brief overview of scholarship that has examined the role of language in society and culture, in socialization practices, and in education. It concludes with a discussion of the role of language in law, legal reasoning, and legal education. The resulting synthesis of insights from multiple disciplines provides the foundation for the model of language in social context used in this study. It is through language that social problems are translated into legal issues. At the broadest level, this study brings together two related inquiries. First, whether there is a distinctive approach to translation embodied in the canonical legal language taught to law students. If so, how people learn to use that distinctive language as they become legal professionals—in their first months of training to be the lawyers and judges whose voices and writings perform the act of legal translation. To address these questions, work in linguistics, anthropology, legal theory, social theory, educational research, and psychology is considered.
Hugh Collins
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199258017
- eISBN:
- 9780191717857
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258017.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Using an interdisciplinary approach involving economics, sociology, and law, this book explores fundamental questions about the purposes and effects of legal regulation of contractual relationships. ...
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Using an interdisciplinary approach involving economics, sociology, and law, this book explores fundamental questions about the purposes and effects of legal regulation of contractual relationships. What kind of social relations do contracts create, or, more precisely, how do contracts govern social interaction. How are contractual relations, or more generally, markets constructed? Does the law play a significant role in particular practices, and in particular, what do lawyers, courts, and legal sanctions contribute to the contractual social order? For what distributive purposes does the law attempt regulation? The controversial conclusions of this study suggest that the law plays an insignificant role in the construction of markets, and that law and lawyers could provide better assistance by using indeterminate regulation that permits the recontextualization of legal reasoning. Legal regulation of contracts concerned with redistributive tasks, such as redressing unfairness, countering unjust power relations, and improving access to justice, is evaluated both with respect to the objectives of regulation and the search for the most efficient and efficacious form of regulation. The argument in the book is that control of unfairness is both desirable and practicable, that power relations should be modified for the sake of efficiency, and that better access to justice is unhelpful to the resolution of contractual disputes.Less
Using an interdisciplinary approach involving economics, sociology, and law, this book explores fundamental questions about the purposes and effects of legal regulation of contractual relationships. What kind of social relations do contracts create, or, more precisely, how do contracts govern social interaction. How are contractual relations, or more generally, markets constructed? Does the law play a significant role in particular practices, and in particular, what do lawyers, courts, and legal sanctions contribute to the contractual social order? For what distributive purposes does the law attempt regulation? The controversial conclusions of this study suggest that the law plays an insignificant role in the construction of markets, and that law and lawyers could provide better assistance by using indeterminate regulation that permits the recontextualization of legal reasoning. Legal regulation of contracts concerned with redistributive tasks, such as redressing unfairness, countering unjust power relations, and improving access to justice, is evaluated both with respect to the objectives of regulation and the search for the most efficient and efficacious form of regulation. The argument in the book is that control of unfairness is both desirable and practicable, that power relations should be modified for the sake of efficiency, and that better access to justice is unhelpful to the resolution of contractual disputes.
Neil MacCormick
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199571246
- eISBN:
- 9780191713064
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571246.001.0001
- Subject:
- Law, Philosophy of Law
When cases come before courts can we predict the outcome? Is legal reasoning rationally persuasive, working within a formal structure and using recognisable forms of arguments to produce predictable ...
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When cases come before courts can we predict the outcome? Is legal reasoning rationally persuasive, working within a formal structure and using recognisable forms of arguments to produce predictable results? Or is legal reasoning mere ‘rhetoric’ in the pejorative sense, open to use, and abuse, to achieve whatever ends unscrupulous politicians, lawyers and judges desire? If the latter what becomes of the supposed security of living under the rule of law? This book tackles these questions by presenting a theory of legal reasoning. It explains the essential role syllogism plays in reasoning used to apply the law, and the elements needed in addition to deductive reasoning to give a full explanation of how law is applied and decisions justified through the use of precedent, analogy, and principle. The book highlights that problems of interpretation, classification, and relevance will always arise when applying general legal standards to individual cases. In justifying their conclusions about such problems, judges need to be faithful to categorical legal reasons and yet fully sensitive to the particulars of the cases before them. How can this be achieved, and how should we evaluate the possible approaches judges could take to solving these problems? By addressing these issues the book asks questions at the heart of understanding the nature of law and the moral complexity of the rule of law.Less
When cases come before courts can we predict the outcome? Is legal reasoning rationally persuasive, working within a formal structure and using recognisable forms of arguments to produce predictable results? Or is legal reasoning mere ‘rhetoric’ in the pejorative sense, open to use, and abuse, to achieve whatever ends unscrupulous politicians, lawyers and judges desire? If the latter what becomes of the supposed security of living under the rule of law? This book tackles these questions by presenting a theory of legal reasoning. It explains the essential role syllogism plays in reasoning used to apply the law, and the elements needed in addition to deductive reasoning to give a full explanation of how law is applied and decisions justified through the use of precedent, analogy, and principle. The book highlights that problems of interpretation, classification, and relevance will always arise when applying general legal standards to individual cases. In justifying their conclusions about such problems, judges need to be faithful to categorical legal reasons and yet fully sensitive to the particulars of the cases before them. How can this be achieved, and how should we evaluate the possible approaches judges could take to solving these problems? By addressing these issues the book asks questions at the heart of understanding the nature of law and the moral complexity of the rule of law.
Eric D. Knowles and Peter H. Ditto
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199737512
- eISBN:
- 9780199918638
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737512.003.0013
- Subject:
- Psychology, Social Psychology
To say that someone is a person of principle is high praise; to declare that he or she is driven by personal preference is a damning critique. This chapter examines judgments of preference and ...
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To say that someone is a person of principle is high praise; to declare that he or she is driven by personal preference is a damning critique. This chapter examines judgments of preference and principle from a social-psychological perspective, arguing that they reflect lay-psychological hypotheses concerning the causes of behavior. It is argued that judgments are rarely purely principled or purely preference-based. Rather, a hybrid or casuistic model is proposed, positing that principles (for example, general intellectual commitments) often guide judgments after having been selected to cohere with one’s preferences (or affective biases) concerning the outcome. Examples of casuistic judgments are examined from the domains of life-and-death decisions, legal reasoning, and racial thinking. The chapter closes with a discussion of the normative status of casuistic judgment.Less
To say that someone is a person of principle is high praise; to declare that he or she is driven by personal preference is a damning critique. This chapter examines judgments of preference and principle from a social-psychological perspective, arguing that they reflect lay-psychological hypotheses concerning the causes of behavior. It is argued that judgments are rarely purely principled or purely preference-based. Rather, a hybrid or casuistic model is proposed, positing that principles (for example, general intellectual commitments) often guide judgments after having been selected to cohere with one’s preferences (or affective biases) concerning the outcome. Examples of casuistic judgments are examined from the domains of life-and-death decisions, legal reasoning, and racial thinking. The chapter closes with a discussion of the normative status of casuistic judgment.
Joanne Conaghan
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199592920
- eISBN:
- 9780191751103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592920.003.0006
- Subject:
- Law, Philosophy of Law, Human Rights and Immigration
This chapter addresses the following questions: What does it mean to ‘think like a lawyer’? In what sense is lawyering a special or distinct way of thinking or doing? What role, if any, does gender ...
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This chapter addresses the following questions: What does it mean to ‘think like a lawyer’? In what sense is lawyering a special or distinct way of thinking or doing? What role, if any, does gender play with respect to ideas of legal reason and modes and techniques of legal reasoning? It argues that while legal reasoning is a loosely structured process, it is characterized far less by logic and far more by evaluation, in which context the room for differences of opinion is considerable, as are the opportunities to determine outcomes in accordance with one's own values and preferences.Less
This chapter addresses the following questions: What does it mean to ‘think like a lawyer’? In what sense is lawyering a special or distinct way of thinking or doing? What role, if any, does gender play with respect to ideas of legal reason and modes and techniques of legal reasoning? It argues that while legal reasoning is a loosely structured process, it is characterized far less by logic and far more by evaluation, in which context the room for differences of opinion is considerable, as are the opportunities to determine outcomes in accordance with one's own values and preferences.
ALAN NORRIE
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198259565
- eISBN:
- 9780191710636
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198259565.003.0004
- Subject:
- Law, Comparative Law, Philosophy of Law
This chapter argues that the traditional Hegelian desire to ‘rationalise the real’, and thereby to resolve the problems of law via dialectical method, must be rejected. A dialectical approach, ...
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This chapter argues that the traditional Hegelian desire to ‘rationalise the real’, and thereby to resolve the problems of law via dialectical method, must be rejected. A dialectical approach, properly employed, reveals law's continuing historical and structural problems. Nonetheless, Georg Hegel's dialectical understanding of the limits of analytical reasoning, described and explained in this chapter as identity thinking, remains a crucial staging post. Hegel's dialectic is followed, and then transcended in favour of Roy Bhaskar's approach. This chapter outlines the opposition between analytical ('identity') thinking and dialectical (‘entity relational’) thinking, and explains, using Hegel, how the dialectical critique works for criminal justice. Bhaskar's entity relationism and dialectical critical realism are discussed, along with false separation in Immanuel Kant's morality of form and the limits of an analytical model of legal reasoning.Less
This chapter argues that the traditional Hegelian desire to ‘rationalise the real’, and thereby to resolve the problems of law via dialectical method, must be rejected. A dialectical approach, properly employed, reveals law's continuing historical and structural problems. Nonetheless, Georg Hegel's dialectical understanding of the limits of analytical reasoning, described and explained in this chapter as identity thinking, remains a crucial staging post. Hegel's dialectic is followed, and then transcended in favour of Roy Bhaskar's approach. This chapter outlines the opposition between analytical ('identity') thinking and dialectical (‘entity relational’) thinking, and explains, using Hegel, how the dialectical critique works for criminal justice. Bhaskar's entity relationism and dialectical critical realism are discussed, along with false separation in Immanuel Kant's morality of form and the limits of an analytical model of legal reasoning.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580057
- eISBN:
- 9780191729379
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580057.003.0015
- Subject:
- Law, Philosophy of Law
Understanding morality and understanding legal, especially judicial, reasoning each require attention to the distinctions between reason and feelings, and between making and doing. In clarifying ...
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Understanding morality and understanding legal, especially judicial, reasoning each require attention to the distinctions between reason and feelings, and between making and doing. In clarifying these, this chapter considers the denial of objective goods by ‘Critical Legal Studies’; the confusion induced by ‘game’ or ‘decision’ or ‘rational choice’ theory's technological understanding of rational choice; and Ronald Dworkin's exaggeration of the determinacy of affirmative moral obligations and oversight of the incommensurability between moral and other kinds of criteria for judgment and choice. Legal system and reasoning exists in a tension between the moral or existential order and the technical order (the third and fourth of the four kinds of order and intellectual discipline). Understanding incommensurability also grounds the acknowledgement of exceptionless moral norms (‘absolutes’) that give legal reasoning its backbone.Less
Understanding morality and understanding legal, especially judicial, reasoning each require attention to the distinctions between reason and feelings, and between making and doing. In clarifying these, this chapter considers the denial of objective goods by ‘Critical Legal Studies’; the confusion induced by ‘game’ or ‘decision’ or ‘rational choice’ theory's technological understanding of rational choice; and Ronald Dworkin's exaggeration of the determinacy of affirmative moral obligations and oversight of the incommensurability between moral and other kinds of criteria for judgment and choice. Legal system and reasoning exists in a tension between the moral or existential order and the technical order (the third and fourth of the four kinds of order and intellectual discipline). Understanding incommensurability also grounds the acknowledgement of exceptionless moral norms (‘absolutes’) that give legal reasoning its backbone.
Giovanni Sartor
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199661640
- eISBN:
- 9780191745461
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661640.003.0007
- Subject:
- Law, Philosophy of Law
This chapter provides a logical analysis of defeasible reasoning. First it introduces the notion of a reasoning schema, and considers how ratiocination proceeds according to the reasoning schemata ...
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This chapter provides a logical analysis of defeasible reasoning. First it introduces the notion of a reasoning schema, and considers how ratiocination proceeds according to the reasoning schemata adopted by the concerned agent. It then distinguishes conclusive and defeasible reasoning, and argues that cognitive agents need to engage in defeasible reasoning for coping with a complex and changing environment. It analyzes the process of defeasible reasoning considering collisions of reasons, defeat, preference-based reasoning and reinstatement, as well as the distinction between rebutting and undercutting. Finally, it considers defeasibility in practical and legal reasoning, and argues that defeasible reasoning constitutes an essential aspect of legal problem-solving.Less
This chapter provides a logical analysis of defeasible reasoning. First it introduces the notion of a reasoning schema, and considers how ratiocination proceeds according to the reasoning schemata adopted by the concerned agent. It then distinguishes conclusive and defeasible reasoning, and argues that cognitive agents need to engage in defeasible reasoning for coping with a complex and changing environment. It analyzes the process of defeasible reasoning considering collisions of reasons, defeat, preference-based reasoning and reinstatement, as well as the distinction between rebutting and undercutting. Finally, it considers defeasibility in practical and legal reasoning, and argues that defeasible reasoning constitutes an essential aspect of legal problem-solving.
