The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of principles, and (...) kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rationality. (shrink)

In this article, we try to trace the relationship between semiotics and theory of legal reasoning using Peirce’s idea that all reasoning must be necessarily in signs: every act of reasoning/argumentation is a sign process, leading to “the growth of knowledge. The broad scope and universal character of Peirce’s sign theory of reasoning allows us to look for new conciliatory paradigms, which must be presented in terms of possible synthesis between the traditional approaches to argumentation. These traditional approaches are strongly (...) affected by either the dialectical (logical) perspective or the rhetorical perspective on argumentation, while Peirce’s approach tends to reconcile the rhetorical and methodological aspects of reasoning. This reconcilation is best illustrated by Peircean analysis of argument’s logical and rhetorical structure; while the diagrammatic (iconic) analysis of arguments is performed in the system of Existential Graphs (which is Peirce’s major methodological system, designed for the expressions of propositions in point of their relational structure). Obviously, Peirce’s original division of argument parts offered only the characterisation of the sign activity (involved in the process of reasoning), and thus left much to be desired in terms of practical explication. (shrink)

In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the logical theology of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of axioms and corollaries; and (...) this element of truth is not obviated by the more powerful logical techniques that are now available. (shrink)