The case-bound character of legal reasoning (original) (raw)
Related papers
[2008] Making the Law Explicit: The Normativity of Legal Argumentation
2008
Legal argumentation consists in the interpretation of texts. Therefore, it has a natural connection to the philosophy of language. Central issues of this connection, however, lack a clear answer. For instance, how much freedom do judges have in applying the law? How are the literal and the purposive approaches related to one another? How can we distinguish between applying the law and making the law?
A short note on interpretation of legal texts.
In this short note I wish to argue that the conventional legal interpretative technique is not a process that can somehow ‘yield’ unique or singular ‘interpretation’ simply because interpretation is not static objective, dispassionate, process somehow operating on a legal text to extract a true unique or singular meaning. On the contrary the very act of interpretation disrupts, modifies and transforms the legal text whereby the searched for ‘meaning’ suddenly becomes meaningless and sense of justice is a process of coherence and reference. Such an experience of interpretation is reminiscent of our experience of the development of common law.
Oxford Journal of Legal Studies, 2022
Karl Llewellyn's critique of the canons of statutory interpretation led to a decline in their use for several decades. His critique, however, faced sustained resistance from some corners of the academy and the judiciary. Although this resistance has had only a selective uptake, it animated a gradual revival of the canons and brought the state of scholarship to an impasse that is for the most part partisan. In this article, I examine the semantic canons from a deeper level and argue that a universal assumption about them is false. Said assumption is that, although not dispositive, the semantic canons at least offer some reasons in favour of or against a candidate interpretation. Inclinations to rely on the semantic canons are also based on this assumption, although it is an assumption that the critics of the canons also share. I argue that this assumption is false because the semantic canons are a class of rules that are by nature not reason-giving. This provides a new ground against giving the semantic canons deliberative weight in questions of statutory interpretation. (Forthcoming in the Oxford Journal of Legal Studies. Penultimate draft).
Ordinary Meaning A Theory of the Most Fundamental Principle of Legal Interpretation
There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’. That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication. The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts. Yet, beyond very general characterizations or assumptions that the answers are self-evident, neither the constituent nor the evidential question has been comprehensively examined by courts or commentators. This book provides a theory that answers the constituent question and a general framework for how the determinants of ordinary meaning (i.e., the evidential question) should be identified and developed. The fundamental problem with the common process used by courts for determining the ordinary meaning of texts, such as significant reliance on acontextual dictionary definitions, is that it often does not result in interpretations that reflect the ordinary meaning of the textual language, or only coincidentally does so. One main flaw in the judiciary’s approach is a failure to properly consider context. Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning. One way to capture generalizable meanings is to conceive of ordinary meaning as being primarily based on semantic meaning. Further, a distinction between ‘narrow context’ and ‘wide context’ can be made, with ordinary meaning being determined on the basis of consideration of facts from the ‘narrow context’. In addition, one marked feature of interpretive principles is that they often serve to restrict the domains of legal texts, thereby creating a gap between literal meaning and ordinary meaning. Yet framing ordinary meaning as being primarily based on semantic meaning, determined from consideration of ‘narrow context’, does not eliminate interpretive discretion. When context is considered, the assignment of meaning invariably has an ineliminable element of interpreter discretion. This is true with respect to indexicals and quantifiers, as well as other linguistic phenomena. Nevertheless, focusing on the systematicities of language can often narrow the range of interpretive discretion and improve the judiciary’s determination of ordinary meaning.
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.
THE LANGUAGE OF LEGAL RULES SOME NOTES ABOUT PLAIN-MEANING IN LAW
This essay examines the common opinion that there is a close relationship between the indeterminacy of legal language and hard cases. The analysis begins with Frederick Schauer's conception of plain meaning in law in order to argue that the coexistence of hard and easy cases in a legal system is independent of the written or unwritten nature of the rules involved in each case and that the distinction between hard and easy cases depends much more on the pragmatic features of legal language and the specific context in which rules are applied. To sum up the main theses presented in the essay, first, legal disputes and, especially, litigation might be either encouraged or prevented by using, according to the circumstances, a determinate or an indeterminate lexicon. Moreover, the fact that in some cases legal meanings are equivalent to ordinary meanings, while in other cases they are not, is a pragmatic feature unrelated to the original linguistic field of the terms or the nature of legal concepts used in legal provisions. Finally, the similarities and differences existing in law between technical legal meanings and ordinary meanings is the outcome of the general conception of legal language implicit in the concept of law adopted by legal interpreters.
W. Baude’s and S.E. Sachs’ paper entitled ‘The law of interpretation’ is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting both from the philosophical and practical point of view. Namely, the Authors claim that there exists something additional in the law, that has not been identified before and this is the law of interpretation. This law of interpretation is claimed to be a set of both written and unwritten rules, including the canons of construction. In the present paper I investigate the nature of this law of interpretation. A closer look at the examples provided by W. Baude and S.E. Sachs throughout their paper proves some non-homogenous nature of the unwritten rules of the law of interpretation. I claim that this non-homogeneity comes from different more fundamental facts that these unwritten rules of interpretation are related to. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce and I investigate two main reasons for this state of affairs – the nature of context and the structure of all-things-considered moral arguments.
The common law and the forms of reasoning
International journal for the semiotics of law, 2000
The purpose of this article is to examine how various forms of reasoning both can and should be used to decide cases in the common law tradition. I start by separating positive questions about what the law is from normative questions about what the law ought to be. Next, I present a Peircean account of three main forms of reasoning-deduction, induction and abduction-and examine how they can be used by judges to decide cases in the common law. Finally, I argue that the three forms of reasoning can be used to answer both kinds of questions, but in different ways. All three forms of reasoning can be used to answer questions of positive law, while questions of normative law present a special case that may require the use of aesthetic judgments of taste in the formation of a legal hypothesis.