a This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.a (TM) These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. (...) In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the booka (TM)s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (a defeasiblea (TM)) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail. (shrink)

The main idea or the concept of coherence can be expressed in the following way: The more the statements belonging to a given theory approximate a perfect supportive structure, the more coherent the theory. The degree of perfection of a supportive structure depends on the degree to which the following criteria of coherence are fulfilled: (1) the greatest possible number of supported statements belonging to the theory in question; (2) the greatest possible length of chains of reasons belonging to it; (...) (3) the greatest possible number of strongly supported statements belonging to the theory; (4) the greatest possible number of connections between various supportive chains belonging to the theory; (5) the greatest possible number of preference relations between various principles belonging to it; (6) the greatest possible number and complexity of reciprocal supportive relations between various statements belonging to the theory; (7) the greatest possible number of universal statements belonging to the theory; the greatest possible number of general concepts belonging to it; the highest possible degree of generality of concepts implemented within it; the greatest possible number of resemblances between concepts used within it; (8) the greatest possible number of conceptual cross‐connections between various theories; (9) the greatest possible number of cases covered by the theory; and (10) the greatest possible number of fields of life covered by the theory. (shrink)

We assume—in contrast to many “legal realists”—that law is a part of reality. Law exists because people believe in law, but law is not identical with beliefs. Law supervenes on human beliefs, preferences, actions, dispositions and artefacts. Moreover, the morally binding personal interpretation of the law supervenes on two things together: on the individual's knowledge of legal institutions and on moral obligation. The first supervenes in its turn on mutual beliefs; the second supervenes on motivations and dispositions of the individual, (...) provided that she is morally sensitive and rational. Personal interpretation of law converts into social law, if other persons on the basis of overriding reasons do not contest it. Morally binding social law supervenes on moral motivation that is triggered by institutions that supervene on mutual beliefs. (shrink)

The main stream of legal theory tends to incorporate unwritten principles into the law. Weighing of principles plays a great role in legal argumentation, inter alia in statutory interpretation. A weighing and balancing of principles and other prima facie reasons is a jump. The inference is not conclusive.To deal with defeasibility and weighing, a jurist needs both the belief-revision logic and the nonmonotonic logic. The systems of nonmonotonic logic included in the present volume provide logical tools enabling one to speak (...) precisely about various kinds of rules about rules, dealing with such things as applicability of rules, what is assumed by rules, priority between rules and the burden of proof. Nonmonotonic logic is an example of an extension of the domain of logic. But the more far-reaching the extension is, the greater problems it meets. It seems impossible to make logical reconstruction of the totality of legal argumentation. (shrink)

This paper gives a logical characterization of the interrelation between law and morals. To this purpose it first outlines a logic for defeasible reasoning with rules and principles and illustrates the operation of this logic in the field of law. Then it offers a brief argument why law and morals are interrelated. This paper ends by showing how the logic for defeasible reasoning provides tools to logically characterize some aspects of the interrelation between law and morals.

The author analyzes the relations between truth and law starting from the distinction between practical and theoretical spheres. He shows, first, how moral and legal statements and reasoning are connected with an operation of weighing and balancing different values and principles and how this operation is ultimately based on personal and intuitive preferences and feeling. The criteria developed by the theoretical sciences to define truth (coherence, consensus and pragmatic success) can only be translated into practical statements as criteria of correctness (...) because we cannot affirm that a norm or value statement is true or false. The three criteria become interrelated indices of correctness: They are criteria for rational discourse. (shrink)

Moral statements are related to some ought‐ and good‐making facts. If at least one of these facts exists then it is reasonable that an action in question is prima facie good and obligatory. If all of these facts take place, then it is reasonable that the action is definitively good and obligatory. Yet, moral reasoning is relatively uncertain. The law is more “fixed”. Legal interpretatory statements ought to express a compromise between the literal sense of the law and moral considerations. (...) They can be to a high degree both coherent and accepted. One may emotionally reject them but most people have a disposition to endorse a coherent and commonly accepted value system. (shrink)

The author adopts a coherentist approach to legal argumentation.Ceteris paribus, the degree of coherence of argumentation depends on answers to such questions as: How many statements belonging to the justification are supported by reasons, that is, not arbitrary?, How profound is the justification, that is, how long are the chains of reasons it contains?, How closely interconnected are the reasons, for example in such a way that the same conclusion follows from various independent reasons?, How relevant are the reasons in (...) the context in question?, etc.A reasonable legal argumentation is a special case of a reasonable moral argumentation. Both contain moral substantive reasons and legal authority reasons. On the other hand, some particularities of legal argumentation must be noticed, as well. Among other things, the lawyers take for granted that legal reasoning is based on valid law and that some sources of law, such as statutes, are binding.There exist various juristic roles and corresponding types of argumentation, e.g., judicial and doctrinal ones. Yet, all kinds of legal argumentation must use weighing and balancing in order to make the law coherent and morally acceptable. Consequently, all general principles and criteria of coherence are applicable to all these types but their weight varies between them. (shrink)

Legal doctrine is a kind of legal research, occupying the central position in professional legal writing, e.g., handbooks, monographs, commentaries and legal textbooks etc. It consists of a description of the literal sense of legal statutes, precedents etc., intertwined with many moral and other substantive reasons. Legal doctrine has normative components, and produces coherence in the law in many aspects. It also produces some justice. However, legal doctrine has faced repeated criticism, not least from minimalist philosophers.The author proposes a “Copernican (...) revolution” as regards the relation of legal theory to philosophy. Instead of attempting to make legal theory follow one of the notoriously controversial moral theories, he tries to adjust philosophy to legal theory. In the search for philosophy adjusted to legal doctrine, he prefers cautious (weak) philosophical positions to courageous (strong) ones. He also assumes a society‐centered theory of normativity, a coherentist theory of legal knowledge and a coherentist theory of justice.However, a law theorist has no chance to elaborate such theories in detail. Hence, the author poses the following questions to philosophers: How can a law theorist assume society‐centered normativity without being forced to enter the controversies around collectivism? How can a law theorist assume the common core of morality for society without being forced to enter technical controversies in political philosophy? How can the law theorist base his thinking on the coherence theory of law without being forced to enter technical controversies around the concept of coherence? How can the law theorist avoid hopeless ontological controversies? (shrink)

Any value statement belongs to a certain value code shared, to a certain degree, by a number of people. Is the value code itself relative or not? To solve this problem, one must assume that universal value statements and principles always have a prima‐facie character. Prima‐facie value propositions not only claim universality but can also be understood as universally valid in the following sense. First, their validity does not depend on an individual's free preferences. Second, although they are culture‐bound, there (...) is something all cultures must have in common. But such prima‐facie propositions do not logically imply a moral judgement in any particular case. They are merely a starting point of an evaluation procedure, i.e., of weighing and balancing, nothing more. On the other hand, the final (contextual, all things considered) evaluations are necessarily relative to a certain culture and, indeed, to individual preferences. When claiming universality of values, people see the first side of the problem. When endorsing relativism, they see only the second side. (shrink)

Moral and theoretical deficiencies of the main foundation strategies in social and political systems (Social Engineering, Foundationalism and Invisible Hand theories) are explained by the necessity of a synthesis of different kinds of rationality, i.e., goal-rationality, norm-rationality and rightness and weighing rationality. The anthropological basis of the theory is a distinction between homo finalis and homo socialis. At the institutional level, this conception leads to a synthesis of the rule of law and the welfare state. At the political level, this (...) implies a retonsideration of the principles of democracy and political planning. (shrink)

Legal doctrine in Continental European law (scientia iuris) consists of professional legal writings, e.g., handbooks, monographs, etc., whose task is to systematize and interpret valid law. By production of general and defeasible theories, legal doctrine aims to present the law as a coherent net of principles, rules, meta‐rules, and exceptions, at different levels of abstraction, connected by support relations. The argumentation used to achieve coherence involves not only description and logic but also evaluative (normative) steps. However, sceptics criticise juristic doctrine (...) for its normative character, ontological obscurity, vagueness, fragmentation, and locality. The author answers this criticism pointing out the following. Normative reason is possible. Liberal ontology, admitting such entities as morally justified law, is possible as well. The vagueness of legal doctrine can be construed as defeasibility. Defeasibility is inevitable in the law and in human thinking in general. Fragmentation of legal doctrine is not absolute. Its theories are linked to overarching moral theories. Finally, locality is not absolute either. Though sometimes restricted to a given state, theories of legal doctrine display relevant similarities to corresponding theories in other states. (shrink)

Aleksander Peczenik, Lund Introduction to the Proceedings of the 21st IVR World Congress General Information This volume opens the Proceedings of the 21st ...

Legal dogmatics in Continental European law (scientia iuris, Rechtswissenschaft) consists of professional legal writings whose task is to systematize and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in many cases it leads to a change of the law. Among general theories of legal dogmatics, one may mention the theories of negligence, intent, adequate causation and ownership. The theories produce principles and they also produce defeasible rules. By means of production of general and defeasible theories, legal (...) dogmatics aims at obtaining a system of law that is both internally coherent and harmonized with its background in morality and (political) philosophy. Legal dogmatics is necessary in the context of constitutional constraints on the majority rule. Only if the courts act on the basis of Reason they can be a legitimate counterpart of the majority rule. And Reason cannot be exhausted by particular decision making. It also needs a more abstract deliberation, given by expert jurists. However, legal dogmatics has been a target of several kinds of criticism: empirical, morally-political, epistemological, logical, and ontological. The position taken in this article is to answer such criticism by mutually adjusting philosophy and the practices of the law. (shrink)

Aus dem Inhalt: Justice in General: E. Attwooll: Is the Idea of Justice Asymmetric? u C. L. Sheng: Injustice in Law Caused by Conflict between Equality and Equity u G. Barden: Approaches to Justice: The Economy and the State u C. Schmidt: The Concept of Justice in Economic Theory u M. Milde: Rawls, Pluralism and the Value of Contract Theory u J. Tasioulas: M. Walzer on Justice u L. Cedroni: An Ethological Approach to Law, Justice and the State uaR. Kevelson: (...) Justice as Artifice and Sign u A. Makolkin: Semiotics and Poeticity of Law and Justice u D. Ginev: Law and Morality from a Hermeneutic-Semiotic Perspective Rights in General: F. Viola: Personal Identity in the Human Rights Perspective u J.-R. Sieckmann: Justice and Rights u P. Comanducci: Justice and Rights u D. Wayand: Aboriginal Rights - Then and Now u M. Pavcnik: Argument der Grundrechte u D. B. Boersema: What's Wrong with Rights? u E. E. Dais: A Kantian Critique of Justice Holmes's Rights Theory Social and Environmental Rights: B. M. Baker: The Welfare State: Objectives, Subordinate Principles and Justifying Grounds u U. Penski: Zur Begruendung und Struktur sozialer Rechte u H. LaFolette: Two Forms of Paternalism u L. J. Mazor: Social Justice / Asocial Injustice u D. Wood: Constitutional Minimalism and the Discretionary Power of the Welfare State u u.a. (shrink)