The Inference to the Best Legal Explanation (original) (raw)

Inference to the Best Explanation in Legal Science; On Balancing Contrastive Hypotheses

The inference to the best explanation, used so far in the legal domain regarding evidence, and therefore only at the empirical field, is an inferential scheme that might provide a suitable frame to the way normative propositions are (or should be) construed when legal science faces uncertain normative scenarios. Accordingly, the paper explores both how this inference matches the process of cognition underlying those propositions and how legal science benefits from adopting an inference that offers a much more demanding scientific pattern to its practices. All this is particularly developed, afterwards, regarding the normative propositions legal science is supposed to produce regarding balancing discretion.

Abductive Reasoning in Law: Taxonomy and Inference to the Best Explanation

Cardozo Law Review

Following the positivistic philosophy of Karl Popper and Hans Reichenbach, many traditionalist thinkers on rational proof in law still assume a sharp distinction between “the context of discovery” and “the context of justification.” These traditionalists regard the context of justification as the proper province of legal reasoning. Justification deals with the analysis and appraisal of decisions, judgments, arguments, and verdicts once they are already “on the table.” Thus, questions about the rational adequacy of a judge’s verdict, or about a police decision to charge a suspect, or about the viability of a case that the District Attorney chooses to prosecute are all important to traditional theories. However, questions about discovery play little or no role in many accounts of evidential reasoning in law.

Deduction and justification in the law. The role of legal terms and concepts

Ratio Juris, 2004

Legal terms, such as "ownership," "contract," "validity," "negligence," are used as middle terms in legal deduction. The paper distinguishes two problems regarding this use. One is the logical function of terms for deduction within a normative system. Specific problems dealt with in this connection are meaning, definition, and economy of expression. The other problem connected with middle terms is the "moulding" and possible manipulation of the meaning of legal terms, for arriving at desired conclusions in a given scheme of inference. It is indicated how the moulding of contested legal concepts, if not restricted, will obscure the ratio of legal rules. This problem is relevant, inter alia, to arguments ex analogia in the law.

Can legal reasoning be demystified?

Legal Studies, 2009

The purpose of this paper is to examine a new work on legal reasoning by two American jurists whose aim is to ‘demystify’ it. The paper will not dispute the authors' central thesis that the existence of special forms of reasoning in law is false, but it will argue that a social science epistemologist would find their analysis at best inadequate. It will be argued that legal reasoning is not just reasoning from and about rules; it is also reasoning about facts and about the construction of factual situations. Consequently, it is vital for anyone wishing to have a serious understanding of how lawyers reason to have a familiarity with how social scientists, and indeed natural scientists, reason about fact. Such reasoning certainly involves induction, deduction and analogy but these methods are by no means adequate as an epistemological framework; schemes of intelligibility and paradigm orientations are equally important. If there is one paradigm orientation that is special to certa...