2. The concept of reasoning
Legal reasoning as public reasoning
the core of reasoning is argumentation.
(publicly justified arguments)
Kinds of reasoning:
Theoretical – what is?
Practical – what should be?
3. Legal reasoning
Criteria for distinguishing legal reasoning
kind of arguments used
exercised by lawyers
constrained by law
Social practicies that apply legal reasoning:
dogmatics (legal science)
law-making
law-applying by courts
law-applying by administrative agencies
alternative dispute resolving
private contracts and legal advising
4. Legal reason – does it exist?
'God had endowed His Majesty with excellent science, and great
endowments of nature ...' still 'his Majesty was not learned in the laws
of his realm of England, and causes which concern the life, or
inheritance, or goods, or fortunes of his subjects, are not to be decided
by natural reason but by the artificial reason and judgment of law,
which law is an art which requires long study and experience, before
that a man can attain to the cognisance of it.'
Sir Edward Coke to King James I, in 1607
The first thing we do, let's kill all the lawyers.
W. Shakespeare, Henry The Sixth, Part 2, about 1590
5. Where is an author?
Communicative rationality of legal text
A picture of the law-giver
Intention of the law-giver
‘And the God laughed…’
6. Legal reasoning
Questions of legal reasoning
questiones iuris
questiones facti
Da mihi factum, dabo tibi ius
Questiones iuris:
1. validity questions
2. interpretation questions
7. Legal reasoning
Types of arguments used:
1. empirical arguments
2. general practical reasoning
3. rules of interpretation
4. dogmatic arguments
5. use of precedents
6. special legal argumentative schemes (topics)
8. Legal interpretation
A Part of legal reasoning, dedicated to deciding the
meaninig of the legal text.
Statutory interpretation – precedents’ interpretation
9. Constructive vs. Reconstructive
Discovering or creating the law?
Necessarily reconstructive (otherwise, law-making): formalism
Necessarily constructive :
contextualism, constructivism
Moderate view
Limits of interpretation:
legal text
intention of a lawgiver
rules of interpretation
practice (former decisions, routine)
extra-legal factors (justice, economical effectiveness, political
goals)
10. Context of reasoning
In concreto
judicial decisions,
administrative decisions.
In abstracto
legal science,
constitutional courts,
other authorities.
11. Context of reasoning
In concreto
judicial decisions,
administrative decisions.
In abstracto
legal science,
constitutional courts,
other authorities.
12. Outcomes of interpretation
literal – narrowing – extensive
The priority of literal interpretation.
Clara non sunt interpretanda
Acte clairé & acte éclairé
13. Literal and extensive interpertation
Extensive interpretation is restricted:
on exceptions (exceptiones non sunt extendendae)
on lex specialis rule
on rules limitating fundamental rights
in criminal law to disadvantage of the accused
in tax law to disadvantage of taxpayer
14. Methods of interpretation
linguistic
the linguistic meaning
-common rules
-typically legal rules
non-lingustic
systemic
rule as a part of a system
-features of system
-principles of system
-place of the rule in system
functional
-axiological context
-pragmatical context
15. Methods of interpretation
Some other kinds of interpretation within this
distinction:
purposive
historical (the will of legislator)
constitution friendly
16. Priority of linguistic interpretation
The principle of priority of linguistic interpretation
limits for systemic and functional interpretation
subsidiarity of systemic and functional
prima-facie character (defeasible)
requirement of justification in the case of exception
NOT in the EU!
17. Rules of linguistic interpretation
'Lege non distinguente' rule
What law does not distinguish, one should not
distinguish (no exceptions should be made).
'Per non est' rule
No piece of legal text may be treated as superfluous
18. Rules of systemic interpretation
Argumentum a rubrica
During interpretation, the location of the rule in the
external and internal organization of the legal act
should be respected.
External organization: location in legal system
(branch, hierarchical level)
Internal organization: order of legal act
19. Rules of systemic interpretation
Legal principles:
The rule should be interpreted in accordance with and
with respect for legal principles.
In case of taking the legal principle into account, one
should point specific provision or provisions, from
which the principle might be reconstructed.
20. Rules of functional interpretation
Ratio legis
The rule should be interpreted in accordance with and
with respect for its ratio legis.
ratio legis: reasons for creating the rule (its goal or value
it serves)
Effects of the rule
One should take the expected consequences of particular
interpretation of the rule into account.
Argumentum ad absurdum
One may not choose the interpretation that guides to
absurd, ridiculous or unacceptable consequences.
