Legal Reasoning and Adjudication

A profession from a mere private teacher to an International Linguistic Author, Rituparna Ray Chaudhuri, whom Literary World often calls an “innate creator” or ‘Divine Vengeance’, has proved herself when she had won to her surprise Harvard World Records and London Book of World Record. Living now in a suburb called Madhyamgram (West Bengal), this Semantic Scholar and Writer on English and British Literature, has widely-acclaimed her name in World of Literature with title ‘Blood is Memory without Language: A Litterateur’ (...) to The Daily Guardian. Precious Kashmir has called this Author, “Art is never finished; only abandoned” means “Artists are never really done with a project – there's always more that can be improved.”. (shrink)

Deep legal change occurs when, without legal justification, one legal rule is replaced by another. While often ignored in legal theory, these rule-breaking normative transformations are common and significant enough to warrant careful attention. In this thesis, I analyse the structure of deep legal change and discuss how a philosophically rigorous jurisprudence should approach a legal phenomenon that appears to be legally inexplicable. In particular, I focus on the implications of rule-breaking rule-changes for our conception of courts and legal reasoning. (...) To understand why deep legal change occurs, we need to provide a normative explanation that clarifies why courts, as courts, have reasons to break the law. My solution takes me to G. W. F. Hegel’s Philosophy of Right. Hegel invites us to think of the judicial process as being grounded in two institutional values: the establishment of legal security and the protection of the “universal interest” of the state. Sometimes, these two values come into conflict. In these moments, established legal rules give way to fundamental state-interests. With Hegel, we can say that it is inevitable that political reasons periodically override legal reasons. In deep legal change, the fundamentally political character of law becomes visible. While reminiscent of Carl Schmitt and the literature on emergency powers, this theory of law is much closer to the reason-of-state tradition. Against the background of several historical case studies and contemporary scholarship, I demonstrate the novelty, coherence, and explanatory power of a Hegelian account of deep legal change. (shrink)

Pursuant to the aims and scope of the Special Issue it is part of, this invited contribution seeks to shed new light on the nature and working logic of legal reasoning. It does so by engaging with two of the most authoritative views on the subject which have recently been put forward in the Common law world—namely, Lord Hoffmann’s, and Larry Alexander and Emily Sherwin’s. A key-concern of the Anglophone debate on legal reasoning is whether it is a specialistic type (...) of reasoning requiring ad hoc education and training, or ordinary reasoning subject to ordinary rules of language (i.e. sentence construction, interpretation, etc.). The article argues that compelling though they are, these sorts of enquiries do not help to understand what legal reasoning really is and how it operates. In particular, it argues that if we are to understand what legal reasoning is and how it works, we ought to examine the propositions it aims to craft and support. In so arguing, the article further shows that exploring law’s nature and operations as an intellectual means for social ordering also helps to understand how law works as a regulatory phenomenon more generally. (shrink)

This article examines the application of the ought‐implies‐can principle in the legal domain, especially in the relationship between obligations and responsibility. It addresses the challenge of cases in which an agent cannot do what is required of her, and yet it seems plausible to say that she has an obligation. To deal with these cases, two parallel distinctions are made: between rules of conduct and rules of imputation, and between doings and things done. It is proposed that these distinctions show (...) that the principle operates in two different but complementary ways: as part of prescriptive relations and as part of responsibility practices. (shrink)

Willem Witteveen, a member of the Upper House for the Dutch Labour Party and professor at Tilburg University, was among the passengers on the MH17 aircraft that crashed in eastern Ukraine in July 2014. Prior to this tragic incident, he had submitted the manuscript of “De wet als kunstwerk [The Law as a Work of Art]”. The posthumous edition of the book has been augmented with a foreword by his son, Freek Witteveen, and a series of collages and miniatures. Consequently, (...) it serves as a tribute and memorial to a distinguished jurist and esteemed politician. In his book, Witteveen presents a measured critique of the neoliberal ideology that has predominated in Dutch society for numerous years and has been embraced by both conservative and progressive political factions. He posits that this ideology demonstrates limited regard for the law as an end in itself, instead primarily utilizing the law as a means for addressing social issues: 'As soon as someone discovers the possibility of establishing rules, whether or not enforced with power or carried by authority, the temptation arises to see the rule as a solution to a problem, as the instrument in the hands of the community to make the problem manageable.' (450) Witteveen problematizes this inclination by examining the central metaphor underlying it: the metaphor of the tool. In this context, the laws enacted by the legislature are analogous to the tools employed by a craftsman, such as a mechanic or carpenter. [in Dutch: Willem Witteveen, Eerste Kamerlid voor de PvdA en hoogleraar in Tilburg, was een van de inzittenden van het passagiersvliegtuig MH17 dat in juli 2014 neerstortte in Oost-Oekraïne. Vlak voor deze tragische vlucht had hij het manuscript van De wet als kunstwerk ingeleverd. De postume uitgave van het boek is uitgebreid met een voorwoord van zoon Freek Witteveen en een serie collages en miniaturen. Het functioneert zodoende als eerbetoon en nagedachtenis aan een begaafd jurist en een bevlogen politicus. In zijn boek verzet Witteveen zich op ingetogen wijze tegen de neoliberale ideologie die de Nederlandse samenleving al vele jaren domineert en die door zowel de rechter als de linkerflank van de politiek is omhelsd. Volgens hem heeft deze ideologie weinig oog voor de wet als een doel op zichzelf, maar gebruikt ze de wet vooral als middel voor het oplossen van maatschappelijke problemen: ‘Zodra iemand de mogelijkheid ontdekt om regels vast te stellen, al dan niet met macht gehandhaafd of door gezag gedragen, doet zich de verleiding voor om de regel als een oplossing van een probleem te zien, als het instrument dat de gemeenschap in handen heeft om het probleem hanteerbaar te maken.’ (450) Witteveen problematiseert deze impuls door te kijken naar de centrale metafoor die eraan ten grondslag ligt: de metafoor van het gereedschap. Hierin worden de wetten van de wetgever vergeleken met het gereedschap van een ambachtsman, zoals een monteur of timmerman.]. (shrink)

This paper examines the debate on AI legal personhood, emphasizing the role of path dependencies in shaping current trajectories and prospects. Three primary path dependencies emerge: prevailing legal theories on personhood (singularist vs. clustered), the actual participation of AI in socio-digital institutions (instrumental vs. non-instrumental), and the impact of technological advancements. We argue that these factors dynamically interact, with technological optimism fostering broader attribution of the legal entitlements to AI entities and periods of scepticism narrowing such entitlements. Additional influences include (...) regulatory cross-linkages (e.g., data privacy, liability, cybersecurity) and historical legal precedents. Current regulatory frameworks, particularly in the EU, generally resist extending legal personhood to AI systems. Case law suggests that without explicit legislation, courts are unlikely to grant AI legal personhood on their own, although some authors suggest that the courts can do so. For this to happen, AI systems would first need to prove de facto legitimacy through sustained participation within socio-digital institutions. The chapter concludes by assessing near- and long-term prospects for legal personification, from generative AI and AI agents in the next 5–20 years to transformative possibilities such as AI integration with human cognition via Brain-Machine Interfaces in a more distant future. (shrink)

Disagreement is a pervasive feature of human discourse and a crucial force in shaping our social reality. From mundane squabbles about matters of taste to high-stakes disputes about law and public policy, the way we express and navigate disagreement plays a central role in both our personal and political lives. Legal discourse, in particular, is rife with disagreement - it is the very bread and butter of courtroom argument and legal scholarship alike. Consider a debate between two legal philosophers, Ronald (...) and Herbert, about the Eighth Amendment of the U.S. Constitution, which prohibits ‘cruel and unusual punishment’. Ronald asserts: ‘It is the law that capital punishment is prohibited’. In response, Herbert states: ‘It is not the law that capital punishment is prohibited’. We intuitively think Ronald and Herbert are disagreeing, which reveals in the fact that they are licensed to use ex¬pressions like no (it isn’t) and nuh-uh when responding to their opponent’s claim. But despite the ubiquity and significance of legal disagreement, its precise nature remains elusive. This chapter discusses what exactly is going on when two people disagree about what the law requires, and how can hybrid theory may answer this question. (shrink)

The question of how to legitimize authority is generally addressed with reference to Raz’s service conception of authority. Yet, his functional explanation does not concern itself with how authoritative institutions are empowered at the outset. Even though Raz’s monistic account of authority is coupled with input legitimacy and pluralized with Waldron’s analysis of the inter-institutional allocation of authority, it does not assist us in inter-legal situations. As inter-legality is a theory oriented towards finding legitimate ways of legal intersection, this article (...) aims at showing how authorities between different legal orders may engage in a legitimate relationship. In doing so, it benefits from Roughan’s pluralistic and relational account of authority coupled with a conjunctive justification thesis. (shrink)

The recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its (...) promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges. -/- . (shrink)

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 practical 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. (shrink)

El presente trabajo aborda la noción de seres sintientes, integrada al sistema jurídico por la Corte Constitucional sin un sustento filosófico o epistémico claro. El objetivo general fue analizar el panorama ontológico del ser sintiente como categorización especial para los animales dentro del régimen jurídico de las cosas en Colombia, el cual fue desarrollado mediante una metodología cualitativa con énfasis hermenéutico. Se comprende que la noción de ser, desde sus distintas acepciones, no es un debate netamente teórico, ya que la (...) precisa consolidación de este concepto determina un rumbo para el pensar jurídico, decisivo en el camino a reconocer la calidad de sujetos de derechos a los animales no humanos, dada su capacidad de sintiencia, pues su protección actualmente está condicionada a la moral humana, además, deriva de considerar a los animales parte del ambiente y no individuos cuasi racionales independientes, impidiendo profundizar en posibilidades normativas de protección a éstos. Del análisis, se concluye que el reconocimiento como seres sintientes es un primer paso en las garantías a favor de los animales; el siguiente sería transitar del Estado social de derecho a un Estado socioambiental de derecho, donde se reconozca al ambiente como eje central para definir los parámetros del bienestar humano y animal, teniendo en cuenta una igualdad entre especies, aunada a la responsabilidad de cuidado que conlleva la racionalidad humana. (shrink)

This article analyses some theses developed by John Gardner that deal with the relations between different concepts of responsibility and how these are useful for understanding the relationships between agency, reasons, and responsibility practises. In the first two sections, the text introduces the Aristotelian view developed by John Gardner, focussing on how he understood the relationships between the concepts of basic responsibility, consequential responsibility and prospective responsibility. Sections III. and IV. then review two challenges that arise from the author's treatment (...) of the concept of basic responsibility. The first is the difficulty of understanding some types of responsibility and the second is how we can make sense of the role of excuses in our responsibility practises. Finally, some philosophical tools that Gardner developed in his last works are presented in order to deal with those challenges. / -/- This is a preprint version. (shrink)

The article examines the issue of a necessary connection between the phenomena of law and morality. A new classification of contemporary legal philosophy theories based on a distinction between «dietary» and «calorie» views on the question of the extent that the substantive content of law needs to be consistent with the moral requirements for it to be legal is proposed and justified. It offers a critical analysis of «dietary» views based on the assertion that the law can have any content, (...) including absolutely immoral content (the so-called «separability thesis»). (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

As autonomous systems rapidly become ubiquitous, there is a growing need for a legal and regulatory framework that addresses when and how such a system harms someone. There have been several attempts within the philosophy literature to define harm, but none of them has proven capable of dealing with the many examples that have been presented, leading some to suggest that the notion of harm should be abandoned and “replaced by more well-behaved notions”. As harm is generally something that is (...) caused, most of these definitions have involved causality at some level. Yet surprisingly, none of them makes use of causal models and the definitions of actual causality that they can express. In this paper, which is an expanded version of the conference paper Beckers et al. (Neurips, 2022), we formally define a qualitative notion of harm that uses causal models and is based on a well-known definition of actual causality. The key features of our definition are that it is based on contrastive causation and uses a default utility to which the utility of actual outcomes is compared. We show that our definition is able to handle the examples from the literature, and illustrate its importance for reasoning about situations involving autonomous systems. (shrink)

Much recent work in feminist philosophy of language and epistemology has focused on how power constrains speech and testimony. This paper aims to highlight the flip side of silencing by looking at the productive power of sexist ideology in the context of the Italian gender-based violence crime trial. Building on José Medina’s performative account of epistemic injustice (2013; 2021), I argue that when sexist conceptual resources are used by the judge as an epistemic lens, they do ideological work by setting (...) unfair constraints on the communicative and epistemic agency of the complainant in the obtaining of her testimony. Moreover, I argue that the very same hermeneutical insensitivities and distorting concepts that shape patterns of silence can give rise to forms of agential testimonial injustice (Lackey 2023) in which the only witness statements believed by the Court are those elicited through oppressive questions that obscure, deny, or minimize the reported violence, constituting a form of extracted speech (McKinney 2016). In practical terms, this paper intends to offer a possible theoretical tool to detect and counteract those unjust discursive practices that prevent an unbiased constitution of testimonial evidence. (shrink)

The proof paradox results from conflicting intuitions concerning different types of fallible evidence in a court of law. We accept fallible individual evidence but reject fallible statistical evidence even when the conditional probability that the defendant is guilty given the evidence is the same, a seeming inconsistency. This paper defends a solution to the proof paradox, building on a sensitivity account of checking and settling a question. The proposed sensitivity account of legal proof not only requires sensitivity simpliciter but sensitivity (...) of each relevant step of the proof procedure and/or sensitivity concerning all relevant alternatives. This account avoids problems that have been identified for other sensitivity views of legal proof. Moreover, it is argued that sensitivity, rather than safety, is the crucial modal condition for legal proof. It is, finally, shown that the provided account can fruitfully support very different existing views on the relationship between knowledge and legal proof. (shrink)

This paper investigates the basis arguments of so-called legal logic and their relation to logic in its standard meaning. There is no doubt that legal arguments belong to logic in the wide sense (sensu largo), but their reduction to schemes of formal logic (logica sensu stricto) is a controversial issue. It can be demonstrated that only some legal arguments fall under explicit rules of formal logic, that is, having a deductive character. Most such reasoning is fallible, and its correctness depends (...) on appealing to extra-logical principles taken from legal norms. For instance, if we say, “If it is permitted more, then it is permitted less” (argumentum a maiori ad minus), we assume that the concepts expressed by the words “more” and “less” are already defined. (shrink)

This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does not suffice for legal (...) proof. I then introduce and motivate a knowledge-centred explanation of this fact. The knowledge-centred explanation rests on two premises. The first is that legal proof requires knowledge of culpability. The second is that one cannot attain knowledge that p from bare statistical evidence that p. To motivate the second premise, I suggest that beliefs based on bare statistical evidence fail to be safe—they could easily be wrong—and bare statistical evidence cannot eliminate relevant alternatives. -/- I then cast doubt on the first premise; I argue that legal proof does not require knowledge. I thereby dispute the knowledge-centred explanation of the inadequacy of bare statistical evidence for legal proof. Instead of appealing to the nature of knowledge, I suggest we should seek a more direct explanation by appealing to those more foundational epistemic properties, such as safety or eliminating relevant alternatives. (shrink)

The present work deals with the problem that negligence poses for the relationship between agency and responsibility, that is, it is not possible to establish a sharp connection between the agent’s guilty mind and the wrongful situation. A critical examination of the various strategies that attempt to deal with this problem is presented, and an ascriptivist conception of action and responsibility, as well as the distinction between conduct rules and imputation rules, is developed to address the problem. As a result, (...) a complex theory of agency is defended, the distinction between tracing and non-tracing cases is supported, and it is proposed to understand the latter under the social and normative aspects of agency. (shrink)

In the second section’s final chapter, Triantafyllos Gkouvas discusses the function of interpretative canons in the determination of the law’s content. The argument begins with an overview of the controversies raised by the judicial application of interpretative canons and describes the main distinctions made by jurists in the context of the assessment of their legal effects. Subsequently, Gkouvas explores epistemic and normative approaches to the question of whether interpretive canons have the power to modify the legal effects of ordinary laws (...) or constitutional provisions. He argues that, despite their differences, these approaches take a similarly deflationary position on the role of canons in legal reasoning. In response to this deflationism about the role of interpretative canons, Gkouvas claims that the interaction between interpretive canons and positive law is not in itself a distinct type of metaphysical relation but supervenes, nonetheless, on some metaphysically impactful properties of the related entities. In his conclusion, Gkouvas specifies this impact in mereological terms such that the modification of the legal effect of a legal provision by a canon amounts to a re-composition of the legal content of that provision through the incorporation of the legal content of the modifying canon into the legal content of the thereby modified provision. (shrink)

In this paper, I deploy an argument that I have developed in a number of recent papers in the service of three projects. First, I show that the most influential version of legal positivism – that associated with H.L.A. Hart – fails. The argument’s engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the (...) legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials’ acceptance of a rule is part of our reflective understanding of the nature of law. The second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts. Third, the paper spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right. (shrink)

In questo saggio si cerca innanzitutto di precisare la concezione tommasiana dello "ius" orientata alla sua determinazione tramite il giudizio giudiziale e si procede poi ad esaminare la peculiare soluzione proposta dall’Aquinate al problema della misura di tale giudizio. Diventa così possibile ricomprendere nella sua realistica oggettività, dialetticamente riconoscibile, il significato e il ruolo della giustizia nella dottrina tommasiana del diritto.

This volume traces the modern critical and performance history of this play, one of Shakespeare's most-loved and most-performed comedies. The essay focus on such modern concerns as feminism, deconstruction, textual theory, and queer theory.

Ratio Juris, Volume 35, Issue 1, Page 3-20, March 2022.

The counter majoritarian difficulty is one of the main objections against the judicial review. In this paper, this objection is analyzed from the standpoint of the norm formulation/norm distinction. By stressing the distinc- tion between norm formulations and norms, I claim that when judicial review prevents the application of a norm to an individual case the counter majoritarian difficulty objection does not hold.

In the field of Evidence Law the relation between truth and law has been a somewhat non- debated topic in the past years. It is a given that such a connection exists and, it is understood as the notion of the ascertainment of the truth of disputed questions of fact through legal evidence. The thesis that I have reconstructed in this paper has been presented by Prof. Jordi Ferrer who grounds the connection between truth and law in the role of (...) the legal system as a tool for guiding the behavior of the governed. I call this thesis the theory of the structural clause of truth. In this paper I shall present a possible reconstruction of this theory, I shall raise two objections against it and I shall present five possible interpretations of the relation between truth and law. (shrink)

This book offers a transnational perspective of evidentiary problems, drawing on insights from different systems and legal traditions. It avoids the isolated manner of analyzing evidence and proof within each Common Law and Civil Law tradition. Instead, it features contributions from leading authors in the evidentiary field from a variety of jurisdictions and offers an overview of essential topics that are of both theoretical and practical interest. The collection examines evidence not only as a transnational field, but in a cross-disciplinary (...) context. Each chapter engages with the interdisciplinary themes cutting through the issues discussed, benefiting from the expertise and experience of their diverse authors. (shrink)

In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...) 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 possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze 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, or as inductive arguments, or both, and if so how. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This paper argues that objectivism faces serious problems as it cannot deal with disagreement: Reasonable and rational people can often disagree as to what the interpretation of a (...) text should be. It also defends subjectivism against criticisms by objectivists. (shrink)

This collection contains studies on justice, juridical reasoning and argumenta tion which contributed to my ideas on the new rhetoric. My reflections on justice, from 1944 to the present day, have given rise to various studies. The ftrst of these was published in English as The Idea of Justice and the Problem of Argument. The others, of which several are out of print or have never previously been published, are reunited in the present volume. As justice is, for me, the (...) prime example of a "confused notion", of a notion which, like many philosophical concepts, cannot be reduced to clarity without being distorted, one cannot treat it without recourse to the methods of reasoning analyzed by the new rhetoric. In actuality, these methods have long been put into practice by jurists. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof. It is important, then, that philosophers should not limit their methodologi cal studies to mathematics and the natural sciences. They must not neglect law in the search for practical reason. I hope that these essays lead to be a better understanding of how law can enrich philosophical thought. CH. P. (shrink)

Informatics and the Foundations of Legal Reasoning represents a close collaboration between a wide range of disciplines and countries. Fourteen papers, together with a long analytical introduction by the editors, were selected from the contributions of legal theorists, computer scientists, philosophers and logicians who were members of an International Working Group supported by the European Commission. The Group was mandated to work towards determining how far the law is amenable to formal modeling, and in what ways computers might assist legal (...) thinking and practice. The book is the result of discussions held by the Group over two and half years. It will help students and researchers from different backgrounds to focus on a common set of topics of increasing general interest. It embodies the results of work in progress and suggests many issues for further discussion. A stimulating text for undergraduate and graduate courses in law, philosophy and computer science departments, as well as for those interested in the place of computers in legal practice, especially at the international level. (shrink)

What does anyone know after a trial, after a witness gives testimony, or even after seeking the counsel of a lawyer? Hopefully, the answer to these questions has something to do with the truth. Legal systems claim to have truth-seeking functions. Lawyers have specific roles in the procedures by which legal systems seek the truth and these roles are informed by the norms of legal practice. Yet, lawyers' relationship to truth and knowledge remains underexplored in the philosophy of lawyering. I (...) argue that the philosophy of lawyering needs to develop the epistemic branch of inquiry. The epistemic study of the legal profession offers both enrichment of this applied field of philosophy itself and the opportunity for the philosophy of lawyering to link up with a nexus of emerging scholarship about cognition in legal systems and legal services especially metacognition in legal pedagogy and behavioural legal ethics. Advancing an epistemic approach to the philosophy of lawyering, I study the way in which the lawyer is involved in the adversarial systems truth-seeking function. My theory of lawyering is informed by recent scholarship in social epistemology and virtue epistemology. I propose a normative epistemology of lawyering, meaning specifically that my approach speaks to the professional character development of the lawyer. In the adversarial system of adjudication, lawyers can support the truth-seeking function of the system by developing the intellectual virtues of an epistemic partisan. I put my proposal to the test against Monroe Freedmans Client Perjury Trilemma, reaching new conclusions about the responses to the famous problem. Ultimately, I call for a commitment to professional character formation in service of the legal systems search for truth. (shrink)

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what (...) there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve (...) the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)

What is the role and value of virtue, emotion and imagination in law and legal reasoning? These new essays, by leading scholars of both law and philosophy, offer striking and exploratory answers to this neglected question. The collection takes a holistic approach, inquiring as to the connections and relations between virtue, emotion and imagination. In addition to the principal focus on adjudication, essays in the collection also engage with a variety of different legal, political and moral contexts: eg criminal law (...) sentencing, the Black Lives Matter movement and professional ethics. A number of different areas of the law are addressed and the issues explored include: the benefits and limits of empathy in legal reasoning; the role of attention and perception in judicial reasoning;, the identification of judicial virtues and judicial vices ; the values and dangers of certain imaginative devices ; and the interactive and social dimensions of virtue, emotion and imagination. (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies, has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. (...) We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

In this paper I argue that textualism is far less attractive as a theory of written law than some of its modern proponents think. For it is not usually sensible to expect the grammatical meaning of a provision to determine its appropriate legal meaning. Factors that are unrelated to grammar in the identification of law (e.g., legal theory, context) do too much of the work. **Draft -- acknowledgments welcome, but please do not cite.**.

This article aims to evaluate the contribution of Bentham’s ideas to the jurisprudential debate in view of their relevance vis a vis their contemporary reception. The focus is on Bentham’s revolutionary idea of publicity with its spill-over effects on contemporary debates on the rule of law and accountable and transparent governance. As far as the method is concerned, after having examined Bentham’s ideas on the rule of law and the debate they raised, the focus in the second section of this (...) article is specifically on his conception of publicity. Some critical remarks then show that Bentham’s focus on publicity and transparency has been rightly interpreted in the contemporary debate as an important contribution. However, it is their justification that it is judged to be problematic. In fact, the assessment of the fundamental importance of publicity for the rule of law and transparent and accountable governance leads to a critical engagement with contemporary readings of Bentham’s scholarship, in primis that of Gerald Postema, with a development of the latter’s republican interpretation. The direction of travel that is proposed is towards a more liberal republicanism. The article not only shows how Bentham’s contribution should be revaluated in view of contemporary interpretations, but also proposes directions for further research developments according to which contemporary conceptions of regulation need to take a reflexive turn while aiming at legitimate legality at the same time. (shrink)

In 'The Standard Picture and its Discontents', Mark Greenberg remarks that the typical way that legal theorists think about legal obligations does not sit well with the way the common law works. I argue that Alexander's and Sherwin’s Rule Model of precedent can deal with all the problems that Greenberg accuses the Standard Picture of having. Nonetheless, I further argue that combining the Standard Picture and the Rule Model ultimately leads to another problem: the inability of the Standard Picture – (...) Rule Model to separate rule from dicta. (shrink)

The new evidence scholarship addresses three distinct approaches: legal probabilism, Bayesian decision theory and relative plausibility theory. Each has major insights to offer, but none seems satisfactory as it stands. This paper proposes that relative plausibility theory be modified in two substantial ways. The first is by defining its key concept of plausibility, hitherto treated as primitive, by generalising the standard axioms of probability. The second is by complementing the descriptive component of the theory with a normative decision theory adapted (...) to legal process. Because this version of decision theory is based on plausibilities rather than probabilities, it generates plausibilistic expectations as outputs. Because these outputs are comparable, they function as relative plausibilities. Hence the resulting framework is an extension of relative plausibility theory, but it retains deep ties to legal probabilism, through the proposed definition of plausibility, and to Bayesian decision theory, through the normative use of decision theory. (shrink)

The notion of risk plays a central role in economics, finance, health, psychology, law and elsewhere, and is prevalent in managing challenges and resources in day-to-day life. In recent work, Duncan Pritchard (2015, 2016) has argued against the orthodox probabilistic conception of risk on which the risk of a hypothetical scenario is determined by how probable it is, and in favour of a modal conception on which the risk of a hypothetical scenario is determined by how modally close it is. (...) In this article, we use Pritchard’s discussion as a springboard for a more wide-ranging discussion of the notion of risk. We introduce three different conceptions of risk: the standard probabilistic conception, Pritchard’s modal conception, and a normalcy conception that is new (though it has some precursors in the psychological literature on risk perception). Ultimately, we argue that the modal conception is ill-suited to the roles that a notion of risk is required to play and explore the prospects for a form of pluralism about risk, embracing both the probabilistic and the normalcy conceptions. (shrink)

In classical American pragmatism, fallibilism refers to the conception of truth as an ongoing process of improving human knowledge that is nevertheless susceptible to error. This paper traces appearances of fallibilism in Jewish thought in general, and particularly in the halakhic thought of Eliezer Berkovits. Berkovits recognizes the human condition’s persistent mutability, which he sees as characterizing the ongoing effort to interpret and apply halakhah in shifting historical and social contexts as Torat Ḥayyim. In the conclusion of the article, broader (...) questions and observations are raised regarding Jewish tradition, fallibility, and modernity, and the interaction between Judaism and pragmatism in the history of ideas. (shrink)

Traditional philosophical discussions of knowledge have focused on the epistemic status of full beliefs. In this book, Moss argues that in addition to full beliefs, credences can constitute knowledge. For instance, your .4 credence that it is raining outside can constitute knowledge, in just the same way that your full beliefs can. In addition, you can know that it might be raining, and that if it is raining then it is probably cloudy, where this knowledge is not knowledge of propositions, (...) but of probabilistic contents. -/- The notion of probabilistic content introduced in this book plays a central role not only in epistemology, but in the philosophy of mind and language as well. Just as tradition holds that you believe and assert propositions, you can believe and assert probabilistic contents. Accepting that we can believe, assert, and know probabilistic contents has significant consequences for many philosophical debates, including debates about the relationship between full belief and credence, the semantics of epistemic modals and conditionals, the contents of perceptual experience, peer disagreement, pragmatic encroachment, perceptual dogmatism, and transformative experience. In addition, accepting probabilistic knowledge can help us discredit negative evaluations of female speech, explain why merely statistical evidence is insufficient for legal proof, and identify epistemic norms violated by acts of racial profiling. Hence the central theses of this book not only help us better understand the nature of our own mental states, but also help us better understand the nature of our responsibilities to each other. (shrink)

Abduction is or subsumes a process of inference. It entertains possible hypotheses and it chooses hypotheses for further scrutiny. There is a large literature on various aspects of non-symbolic, subconscious abduction. There is also a very active research community working on the symbolic (logical) characterisation of abduction, which typically treats it as a form of hypothetico-deductive reasoning. In this paper we start to bridge the gap between the symbolic and sub-symbolic approaches to abduction. We are interested in benefiting from developments (...) made by each community. In particular, we are interested in the ability of non-symbolic systems (neural networks) to learn from experience using efficient algorithms and to perform massively parallel computations of alternative abductive explanations. At the same time, we would like to benefit from the rigour and semantic clarity of symbolic logic. We present two approaches to dealing with abduction in neural networks. One of them uses Connectionist Modal Logic and a translation of Horn clauses into modal clauses to come up with a neural network ensemble that computes abductive explanations in a top-down fashion. The other combines neural-symbolic systems and abductive logic programming and proposes a neural architecture which performs a more systematic, bottom-up computation of alternative abductive explanations. Both approaches employ standard neural network architectures which are already known to be highly effective in practical learning applications. Differently from previous work in the area, our aim is to promote the integration of reasoning and learning in a way that the neural network provides the machinery for cognitive computation, inductive learning and hypothetical reasoning, while logic provides the rigour and explanation capability to the systems, facilitating the interaction with the outside world. Although it is left as future work to determine whether the structure of one of the proposed approaches is more amenable to learning than the other, we hope to have contributed to the development of the area by approaching it from the perspective of symbolic and sub-symbolic integration. (shrink)