On the Role of Past Treatment of Terms from Written Laws in Legal Reasoning

2021 ◽  
pp. 379-395
Author(s):  
Jaromir Savelka ◽  
Kevin D. Ashley
Keyword(s):  
Legal Reasoning

Hassan al-Turabi’s Religious Discourse on Faith, Renewal, and Ijtihād

2015 ◽  
Vol 32 (1) ◽  
pp. 75-94
Author(s):  
Gubara Said Hassan ◽  
Jabal M. Buaben
Keyword(s):  
Social Order ◽  
Public Discourse ◽  
Legal Reasoning ◽  
Religious Discourse ◽  
Religious Movement ◽  
Political Leader ◽  
Political Struggle ◽  
Religious Ideology ◽  
Religious Symbolism

The role of Islamic intellectuals is not confined to elaborating on the religious ideology of Islam. Equally important is their role in setting this religious ideology against other ideologies, sharpening and clarifying their differences, and thereby developing and intensifying one’s commitment to Islam as a distinct, divinely based ideology. Islam, as both a religion and an ideology, simultaneously mobilizes and transforms, legitimizes and preserves. It can be an instrument of power, a source and a guarantee of its legitimacy, as well as a tool to be used in the political struggle among social classes. Islam can also present a challenge to authority whenever the religious movement questions the existing social order during times of crisis and raises a rival power, as the current situation in Sudan vividly demonstrates. Throughout his political career, Hassan al-Turabi has resorted to religious symbolism in his public discourse and/or Islamic rhetoric, which could often be inflammatory and heavily reliant upon the Qur’an. This is, in fact, the embodiment of the Islamic quest for an ideal alternative. Our paper focuses on this charismatic and pragmatic religio-political leader of Sudan and the key concepts of his religious discourse: faith (īmān), renewal (tajdīd), and ijtihād(rational, independent, and legal reasoning).

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

scholarly journals How Reflective and Critical Norm-Usage Paves the Way to the Public Power of Judgement

2019 ◽  
Vol 33 (1) ◽  
pp. 175-188
Author(s):  
Karolina M. Cern
Keyword(s):  
Legal Reasoning ◽  
Public Power ◽  
The Public ◽  
Democratic Polity ◽  
Power Needs ◽  
The Way

Abstract The purpose of this paper is to demonstrate that Neil MacCormick’s conception of norm-usage makes it necessary to address the concept of the public power of judgement as the key concept for understanding the democratic legitimization of current law. Therefore, firstly I analyse MacCormick’s conception of norm-usage, secondly I demonstrate that it leads to the idea of the institutionalisation of judgemental–interpretative practice, and thirdly, I show that the latter paves the way to the public power of judgement. Finally, I argue that this power needs to be elaborated in terms of competencies which are broader than legal skills and legal reasoning, and, further, that these competencies condition the use of both legal skills and reasoning. Importantly, MacCormick’s contribution to understanding the public power of judgement—when further developed—may indicate the profound role of comprehending the proper significance of law in a democratic polity and its relationship to the citizenry.

Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

2021 ◽  
Author(s):  
Linda Tvrdíková
Keyword(s):  
Decision Making ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Normative Theory ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Deliberative System ◽  
Experiential System ◽  
Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

Canadian Supreme Court: Delgamuukw V. British Columbia

1998 ◽  
Vol 37 (2) ◽  
pp. 261-333
Author(s):  
Catherine Bell
Keyword(s):  
British Columbia ◽  
Legal Reasoning ◽  
Legal Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
Aboriginal Title ◽  
British Colonial ◽  
Potential Impact ◽  
British Colonies

Delgamuukw v. B.C. is a pivotal decision in the evolution of Canadian law on Aboriginal rights.Numerous meetings, round-tables, workshops and conferences have been held to discuss its potential impact on litigation and negotiation.1 Delgamuukw has also served as a vehicle for discussion of more fundamental issues such as the appropriateness of selecting the judicial forum to resolve Aboriginal title claims and the role of legal reasoning in furthering the process of colonization.2 Given the influence of British colonial law on the development of Aboriginal rights jurisprudence in former British colonies and the restrictions placed by evidentiary presumptions originating in English courts, Delgamuukw may also have persuasive precedential value outside of Canada. In particular, the Supreme Court's elaboration of the concept of Aboriginal rights and its discussion of the weight to be given to oral histories may influence other commonwealth courts which face the demanding task of accommodating the rights of colonized peoples within a contemporary political and legal rights regime.3

Precedents: Lawmaking Through International Adjudication

2011 ◽  
Vol 12 (5) ◽  
pp. 1005-1032 ◽  
Author(s):  
Marc Jacob
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Progressive Development ◽  
Judicial Decisions ◽  
Judicial Lawmaking ◽  
International Adjudication ◽  
Restraining Force

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

What Society Can and Cannot Learn From Coherence

2020 ◽  
pp. 176-197
Author(s):  
Niki Pfeifer ◽  
Andrea Capotorti
Keyword(s):  
Psychological Factors ◽  
Legal Reasoning ◽  
Uncertainty Management ◽  
Health Issues ◽  
Probabilistic Representation ◽  
Societal Issues ◽  
Political Economic ◽  
Vaccination Hesitancy

Society is facing uncertainty on a multitude of domains and levels: usually, reasoning and decisions about political, economic, or health issues must be made under uncertainty. Among various approaches to probability, this chapter presents the coherence approach to probability as a method for uncertainty management. The authors explain the role of uncertainty in the context of important societal issues like legal reasoning and vaccination hesitancy. Finally, the chapter presents selected psychological factors which impact probabilistic representation and reasoning and discusses what society can and cannot learn from the coherence approach from theoretical and practical perspectives.

1. Understanding the Law

2019 ◽  
pp. 1-30
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Legal Reasoning ◽  
Case Law ◽  
European Convention ◽  
Soft Law ◽  
The European Union ◽  
Procedural Law ◽  
Legal Method ◽  
English Law ◽  
The Concept Of Law

This chapter introduces some fundamentals that will underpin the understanding of law and ‘legal method’. It explains those core principles and techniques that underpin the process of legal reasoning. Topics discussed include the concept of law; functions of law, and some of the major functions of law; and the concept of regulation, which extends our understanding of law to forms of delegated legislation and ‘soft’ law and case law as it is developed by the courts. The chapter also discusses Parliament and legislation; the structure and role of the courts; the importance of procedural law; English law and the European Convention on Human Rights; and English law and the European Union.

The Role of Coherence in Legal Reasoning

1984 ◽  
Vol 3 (3) ◽  
pp. 355 ◽  
Author(s):  
Barbara Baum Levenbook
Keyword(s):  
Legal Reasoning

scholarly journals Supervisory Role Of Regional Assembly (Mpd) On Notary Monitoring In Leaving The Area Without Legal Reasoning Which More Than 7 (Seven) Working Days In Banjarnegara

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 415
Author(s):  
Alfian Ridho Chusosi ◽  
Munsharif Abdul Chalim
Keyword(s):  
General Population ◽  
Legal Reasoning ◽  
Social Function ◽  
The State ◽  
Legal Certainty ◽  
Community Members ◽  
Strength Of Evidence ◽  
The Republic ◽  
The Government

In the Constitution of the State in 1945 expressly stated that the Republic of Indonesia is legal state, is thus one of the most important tasks for the government is provide and ensure a sense of legal certainty for the citizens of the community members. In certain fields this task by the government through the Law given and entrusted to the Notary and vice versa community must also believe that the Agreement made that provides legal certainty for citizens, in accordance with the wording of Article 15 paragraph 1 of Act No. 30 of 2004 jo Act No. 2 of 2014 concerning Notary. The legal certainty in addition to the authenticity of a certificate that has the strength of evidence, ie outwardly, formal and material as well as the ethics of a Public Notary in the running position. In carrying out the duties of office of the Notary not only carry out the work mandated by legislation alone as well as running a social function that is very important is to be responsible for carrying out the trust placed in the general population it serves, Notary authorized to make the authentic act on all agreements, agreements and statutes required by the rules and regulations and / or desired by the stakeholders to be stated in an authentic agreement, agreement of guarantee certainty of the date of manufacture, save agreement, giving grosse, copy, and official copies.Keywords: Public Notary, Regional Assembly, Legal Reasoning

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