What is Legal Doctrine? (original) (raw)
Related papers
The Concept of the Judicial Decision
Case Western Reserve law review, 1983
The judicial decision serves a primary role in the Anglo-American legal system. The judicial decision performs numerous functions including that of precedent for future cases. This Article examines three related aspects of the judicial decisiort First, the author discusses the use of reasons in judicial decisions and concludes that interpretation of a judicial decision requires one to develop an understanding of one's judicial view. Second, this Article analyzes the role of legalforms. Finally, reasoning by analogy is examined The author maintains that the latter is not dferent from reasoning by induction and that true nondeductive reasoning should be called argument by metaphor.
THE USE OF LEGAL DOCTRINE IN JUDICIAL REASONING
This article is primarily concerned with investigating whether and to what extent legal doctrine actually influences judicial decision-making process in Ukraine and others countries. It is concluded that legal doctrine not only assists judges, but somehow restricts their exercise of discretionary power.
Two Faces of Legal Reasoning: Rule-Based and Case-Based
In this chapter I would like to substantiate the thesis that legal reasoning is never purely rule-based nor case-based, as it always requires a kind of interplay between abstract rules and concrete legal decisions. In order to do so, I begin by formulating two thought experiments: one, in which a highly abstract normative order is imagined and its limitations analysed; and the other, which considers a normative order consisting of particular cases only and pinpoints its failure to deliver a solid foundation for legal decisions. I further argue that the problematic features of purely abstract and purely concrete normative systems detected in both experiments are also present in, respectively, the civil law and the common law traditions. I conclude by indicating that there is no functioning legal system without a constant “dialogue” between the abstract and the concrete.
2019
Cláudia Toledo-Judicial Activism-The need for parameters: analysis of legal reasoning in judicial review Marion Vorms-The story-model of jurors' decision-making in the light of an analysis of evidential reasoning-conceptual and empirical questions Wessel Wijtvliet, Arthur Dyevre-Measuring Judicial Ideology in Economic Cases: An Expert Crowdsourcing Design Christoph Winter-Exploring the challenges of artificial judicial decisionmaking Workshop schedule Monday 8.07.19 Room 3.B48 14h00-16h00 Jeffrey Rachlinski, Andrew Wistrich-Judging Autonomous Vehicles *** Gustavo Cevolani, Vincenzo Crupi, Roberto Festa-The Whole Truth About Dina: Judicial Reasoning and the Conjunction Fallacy *** Christoph Winter-Exploring the Challenges of Artificial Judicial Decision-Making *** Brian Sheppard-The Automation of the Reasonably Prudent Person Test *** 16h30-18h30 Michal Ovádek-Lawyers' Aversion to Politics: Choosing a Legal Basis of EU Legislation under Experimental Conditions *** Jernej LetnarČernič-Measuring social dimension of judicial ideology at the Constitutional Court of Slovenia *** Cláudia Toledo-Judicial Activism-the Need for Parameters: Analysis of Legal Reasoning in Judicial Review *** Wessel Wijtvliet, Arthur Dyevre-Measuring Judicial Ideology in Economic Cases: An Expert Crowdsourcing Design Tuesday 9.07.19 Room 3.B57 9h30-10h30 Marion Vorms-The Story-model of Jurors' Decision-making in the Light of an Analysis of Evidential Reasoning-Conceptual and Empirical Questions *** Iris van Domselaar-Virtue-jurisprudence and Empirical Accounts of Legal Decision-making: Mutually Reinforcing? *** 11h00-12h00 Moa Lidén-"Guilty, No Doubt": Detention Provoking Confirmation Bias in Judges' Guilt Assessments and Debiasing Techniques ***
The Legal Backgrounds to the Influenceability of the Decisions of Judges from Factors beyond Law
2014
Paying attention to the role of judges in legal system transformations and realization of judicial system justice has been always a necessity specially respected by legal thinkers and schools in recent centuries. Some schools including realism and formalism believe that law has a determined nature and the judges has no function rather than implementing the laws and in his judicial decision he acts like a mechanical machine and lacks any feeling. Therefore, there is no assumption of his alluring and threat. In contrary, a group of other schools including legal realists, legal critical studies movement and legal pragmatism have rejected this theory and believe that with their describable nature, laws are in the service of human needs and interests. Therefore, judges impacted thinking is based on factors beyond law and rejecting the theory on pure obey by judges from laws and regulations. In legal systems that are based on context – orientation, what undoubtedly yields into judges libe...