Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint (original) (raw)

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 logic of adjudication : an analysis of the grounds for judicial assertion

1981

In the process of adjudication, judges are required to assert propositions that answer the issues a particular case raises. To understand whether the judge is correct in his assertions, a theory is needed which would explain the grounds for asserting propositions within a judicial decision. This thesis presents such a theory: that of judicial pluralism. Pluralism claims that the basis for judicial assertion lies in individual conceptions of judicial role. One uses one's conception to construct a tiered prepositional schema^ whereby particular questions may be answered. The schema is conventional, in that one's conception of role is based on beliefs about what sources a particular society demands that a judge use in reaching a decision, rather than what sources he ought to use. However, an individual's beliefs and attitudes figure prominently, as the concept of role is one about which disagreement is likely to be great. Pluralism is contrasted with three other theories. I...

THINK LIKE A JURIST: WHAT DOES IT MEAN

Forum Prava, 2021

Problem statement. This article deals with the general problem of the connection between legal thinking, legal argumentation and, on the other hand, logic. Although this connection seems clear and undeniable since ancient times, various discussions about it continue to this day. The purpose is to explore one important aspect of this connection, namely, does traditional formal logic determine the relevant form of a jurist's thinking and argumentation completely? To reach this purpose, the method of comparative analysis is employed both synchronically and diachronically. First, in order to substantiate the importance of the issue, a diachronic comparison of several basic approaches is carried out (G.W. von Leibniz, O.W. Holmes Jr., etc.). Then a comparative analysis of the views of some contemporary experts is carried out, especially Ilmar Tammelo and Stephen Toulmin. As a result, it is argued that there is special legal validity in the field of law. Legal validity is determined primarily not by the value of the formal or material true, but by the value of the right directly and mainly. It differs essentially from formal-logical validity. Legal validity is not the subject of formal logic, but special legal logic and, more broadly, informal logic. It is pointed out that traditional formal logic does not determine the relevant form of legal thinking and argumentation completely, because there is the essential difference between formal-logical validity and legal validity. In other words, formal logic is neither sufficient nor necessary to think like a jurist. In this regard, it is shown that the logical standard of proof is not sufficient to determine the relevant form of valid legal proof, for example, proof beyond a reasonable doubt. Moreover, there are at least three kinds of legal proof-not only proof without reasonable doubt, but also proof by clear and convincing evidence, proof by the preponderance of the evidence. Each of them has its own special standard, which differs significantly from the formal-logical one. The conclusion is this: one cannot say that formal logic is useless in the field of law; however, in order to think and argue like a successful jurist, one must grasp and use special legal logic without any exceptions (legal logic belongs to the contemporary informal logic domain).