Legal reasoning and interpretation

2018 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Deductive Reasoning ◽  
Legal Reasoning ◽  
Reasons For Action ◽  
Legal Decisions ◽  
Course Of Action ◽  
True State ◽  
State Of Affairs ◽  
Special Case

Legal reasoning is the process of devising, reflecting on, or giving reasons for legal acts and decisions or justifications for speculative opinions about the meaning of law and its relevance to action. Many contemporary writers, such as Aulis Aarnio (1987), Robert Alexy (1988), Manuel Atienza (1991) and Aleksander Peczenik (1989), propound the view that legal reasoning is a particular instance of general practical reasoning. They suppose, that is to say, that reasoning can link up with action, guiding one what to do, or showing whether or not there are good reasons for a proposed course of action or for something already done. They suppose also that in law reason links up to legal decisions in this way. Both suppositions are well founded. Law regulates what to do and how to respond to what has been done, doing so within an institutional framework of legislatures, lawcourts, enforcement agencies and the like. It is a feature of legal institutions that they are expected to have, and usually do give, good reasons for what they do, and to do this in public. Legal reasoning is therefore not only a special case of practical reasoning, but a specially public one. Rationality in action has at least two requirements: first, attention to facts, to the true state of affairs in relation to which one acts; second, attention to reasons for action relevant to the facts ascertained. The former aspect concerns reasoning about evidence; the latter, reasoning about rules or norms as reasons for action. In law, such rules and other norms have an institutional character. But how are these applied – by some kind of deductive reasoning, or nondeductively? Behind the rules of the law, there presumably lie other reasons, reasons for having these rules. What kind of reasons are these, developed through what modes of discourse? A discourse of principles, perhaps – but then how do reasons of principle themselves differ from rules? Reasoning from either rules or principles must always involve some process of interpretation, so how does interpretive reasoning enter into the practical reason of law? Answering such questions is the business of a theory of legal reasoning. Legal reasoning is to be understood as a form of practical reasoning concerning these very issues.

Law as Practical Reason

1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
The State ◽  
Strong Sense ◽  
A Priority ◽  
The Law ◽  
John Finnis ◽  
Vast Range

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

On Intellectualism in the Theory of Action

2017 ◽  
Vol 3 (3) ◽  
pp. 284-300 ◽  
Author(s):  
ROBERT AUDI
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Practical Knowledge ◽  
Human Action ◽  
Propositional Knowledge ◽  
Theory Of Action ◽  
Theoretical Knowledge ◽  
Reasons For Action ◽  
Distinctive Character ◽  
Knowing How

ABSTRACT:This paper examines intellectualism in the theory of action. Philosophers use ‘intellectualism’ variously, but few question its application to views on which knowledge of facts—expressible in that-clauses—is basic for understanding other kinds of knowledge, reasons for action, and practical reasoning. More broadly, for intellectualists, theoretical knowledge is more basic than practical knowledge; action, at least if rational, is knowledge-guided, and just as beliefs based on reasoning constitute knowledge only if its essential premises constitute knowledge, actions based on practical reasoning are rational only if any essential premise in it is known. Two major intellectualist claims are that practical knowledge, as knowing how, is reducible to propositional knowledge, a kind of knowing that, and that reasons for action must be (propositionally) known by the agent. This paper critically explores both claims by offering a broad though partial conception of practical knowledge and a pluralistic view of reasons for action. The aim is to sketch conceptions of knowing how and knowing that, and of the relation between knowledge and action, that avoid intellectualism but also do justice to both the importance of the intellect for human action and the distinctive character of practical reason.

scholarly journals Epicureanism and Skepticism about Practical Reason

2019 ◽  
Vol 50 (2) ◽  
pp. 195-208
Author(s):  
Christopher Frugé
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Existence Condition ◽  
The Subject ◽  
State Of Affairs ◽  
The One

AbstractEpicureans believe that death cannot harm the one who dies because they hold the existence condition, which states that a subject is able to be harmed only while they exist. I show that on one reading of this condition death can, in fact, make the deceased worse off because it is satisfied by the deprivation account of death’s badness. I argue that the most plausible Epicurean view holds the anti-modal existence condition, according to which no merely possible state of affairs can be good or bad relative to the subject who dies. I go on to show how this condition, as well as any other condition that denies the deprivation account, results in skepticism about practical reason. Thus, the Epicurean faces a dilemma. Either our practical reasoning is hopelessly mistaken or death can make us worse off. Given that our practical reasoning seems at least mildly reliable, we should conclude that death can make us worse off.

Williams on Practical Reason

2018 ◽  
Author(s):  
John Deigh
Keyword(s):  
Practical Reason ◽  
Reasons For Action ◽  
Christine Korsgaard ◽  
Internalist Account

Bernard Williams’s controversial view about reasons for action is the topic of this essay. The essay explains Williams’s internalist account of reasons for action as an improvement on Donald Davidson’s account. It then corrects Williams’s criticism of externalist accounts of reasons for action by conceding that such accounts are viable as long as they do not imply that the reasons a person has for doing an action can explain his or her doing it. The concession follows from acknowledging the very different program of studying reasons in ethics exemplified in the work of Kurt Baier. Once the correction is made to Williams’s criticism, the essay offers a defense of his view against the criticisms of T. M. Scanlon and Christine Korsgaard.

Seeing, Knowing, and Doing

2020 ◽  
Author(s):  
Robert Audi
Keyword(s):  
Practical Reasoning ◽  
Practical Knowledge ◽  
A Priori ◽  
Human Action ◽  
A Priori Knowledge ◽  
Rational Action ◽  
Reasons For Action ◽  
Discriminative Response ◽  
Rich Information ◽  
Priori Knowledge

This book provides an overall theory of perception and an account of knowledge and justification concerning the physical, the abstract, and the normative. It has the rigor appropriate for professionals but explains its main points using concrete examples. It accounts for two important aspects of perception on which philosophers have said too little: its relevance to a priori knowledge—traditionally conceived as independent of perception—and its role in human action. Overall, the book provides a full-scale account of perception, presents a theory of the a priori, and explains how perception guides action. It also clarifies the relation between action and practical reasoning; the notion of rational action; and the relation between propositional and practical knowledge. Part One develops a theory of perception as experiential, representational, and causally connected with its objects: as a discriminative response to those objects, embodying phenomenally distinctive elements; and as yielding rich information that underlies human knowledge. Part Two presents a theory of self-evidence and the a priori. The theory is perceptualist in explicating the apprehension of a priori truths by articulating its parallels to perception. The theory unifies empirical and a priori knowledge by clarifying their reliable connections with their objects—connections many have thought impossible for a priori knowledge as about the abstract. Part Three explores how perception guides action; the relation between knowing how and knowing that; the nature of reasons for action; the role of inference in determining action; and the overall conditions for rational action.

Action

2017 ◽  
Author(s):  
Jonathan Jenkins Ichikawa
Keyword(s):  
Practical Reasoning ◽  
Rational Action ◽  
Reasons For Action ◽  
Central Theme ◽  
Knowledge Norms

This chapter defends a connection between knowledge and practical reasoning, according to which one’s reasons for action constitute all and only that which one knows. A variety of intuitive objections to such principles are considered and rejected—a central theme is that objectors to knowledge norms often make tacit but substantive ethical assumptions about which reasons, if held, would justify which actions. Absent broader ethical theorizing, the proposed counterexamples are inconclusive. The chapter sketches possible approaches to such theories, and indicates reason for optimism about knowledge norms. It also considers the degree to which knowledge norms imply externalism about rational action, suggesting that many internalist intuitions and verdicts may be accommodated and explained by knowledge norms.

Tort’s Indifference: Conformity, Compliance, and Civil Recourse

2020 ◽  
Vol 13 (1) ◽  
pp. 1-30
Author(s):  
Ahson Azmat
Keyword(s):  
Practical Reasoning ◽  
Tort Law ◽  
Point Of View ◽  
Reasons For Action ◽  
Internal Point ◽  
Loss Allocation ◽  
Fine Grained ◽  
Normative Force ◽  
Extensional Structure ◽  
Do So

AbstractLeading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

Normative Weighing and Legal Guidance of Conduct

2012 ◽  
Vol 25 (2) ◽  
pp. 359-391
Author(s):  
Noam Gur
Keyword(s):  
Decision Making ◽  
Practical Reason ◽  
Social Order ◽  
Daily Activity ◽  
Empirical Work ◽  
Pivotal Role ◽  
Reasons For Action ◽  
Correct Decision ◽  
Normative Force ◽  
Frequent Presence

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight (an approach I will call the weighing model). Does the weighing model provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection.

scholarly journals MORALITY, LAW AND CONFLICTING REASONS FOR ACTION

2012 ◽  
Vol 71 (1) ◽  
pp. 59-85 ◽  
Author(s):  
Peter Cane
Keyword(s):  
Moral Reasoning ◽  
Practical Reasoning ◽  
Broad Sense ◽  
Moral Reasons ◽  
Reasons For Action ◽  
Human Conduct ◽  
Morality Plays ◽  
Moral Assessment ◽  
The Concept Of Law ◽  
The Relationship

AbstractIn The Concept of Law, H.L.A. Hart suggested that four formal features of morality distinguish it from law: importance, immunity from deliberate change, the nature of moral offences and the form of moral pressure. On closer examination, none of these supposed features clearly distinguishes morality from law, at least in the broad sense of ‘morality’ that Hart adopted. However, a fifth feature of morality mentioned by Hart – namely the role that morality plays in practical reasoning as a source of ultimate standards for assessing human conduct – does illuminate the relationship between law as conceptualised by Hart and morality variously understood. Because morality has this feature, law is always subject to moral assessment, and moral reasons trump legal reasons. It does not follow, however, that law is irrelevant to moral reasoning.

scholarly journals Truth in Practical Reason: Practical and Assertoric Truth in Aristotle’s Nicomachean Ethics

2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Michail Pantoulias ◽  
Vasiliki Vergouli ◽  
Panagiotis Thanassas
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Nicomachean Ethics ◽  
Controversial Subject ◽  
Practical Syllogism ◽  
The Subject ◽  
De Interpretatione

Truth has always been a controversial subject in Aristotelian scholarship. In most cases, including some well-known passages in the Categories, De Interpretatione and Metaphysics, Aristotle uses the predicate ‘true’ for assertions, although exceptions are many and impossible to ignore. One of the most complicated cases is the concept of practical truth in the sixth book of Nicomachean Ethics: its entanglement with action and desire raises doubts about the possibility of its inclusion to the propositional model of truth. Nevertheless, in one of the most extensive studies on the subject, C. Olfert has tried to show that this is not only possible but also necessary. In this paper, we explain why trying to fit practical truth into the propositional model comes with insurmount­able problems. In order to overcome these problems, we focus on multiple aspects of practical syllogism and correlate them with Aristo­tle’s account of desire, happiness and the good. Identifying the role of such concepts in the specific steps of practical reasoning, we reach the conclusion that practical truth is best explained as the culmination of a well-executed practical syllogism taken as a whole, which ultimately explains why this type of syllogism demands a different approach and a different kind of truth than the theoretical one.

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