Law and Logic: E. Bulygin’s Deductive Pattern of Judicial Reasoning

In the twentieth century, the debate over the possibilities and limits of logic in law became particularly acute with the emergence of judicial realism, a philosophical and legal trend that denied the deductive nature of judicial decision-making. This compromised the theory of the judicial syllogism, assuming that a judicial decision could be deduced as a logical consequence from the premises - norms and facts, and generally provoked a sceptical attitude towards logic in law. The subject of the article is the deductive model of the justification of judicial decisions proposed by the outstanding legal philosopher Eugenio Bulygin. The aim of the article is to show Bulygin’s contribution to the improvement of the deductive model of judicial reasoning. The main innovations Bulygin brought to the deductive model of judicial reasoning are: 1) justifying, based on logical analysis and open texture of language theory, the analytical character of the court interpretative sentences; 2) distinguishing the individual and the generic subsumptions, etc. At the same time, the authors conclude that Bulygin’s improved deductive theory is not free from criticism, as the Argentine jurist does not succeed in complete eliminating doubts about the logical deducibility of at least some categories of decisions from general rules.

Explaining legal inconsistency

Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could hurt courts’ policy making efficacy, so why do judges allow it to happen? I show judicially-created policy can become inconsistent when judges explain rules in more abstract terms than they decide cases. To do so, I expand standard case-space models of judicial decision making to account for relationships between specific facts and broader doctrinal dimensions. This model of judicial decision making as a process of multi-step reasoning reveals that preference aggregation in such a context can lead to inconsistent collegial rules. I also outline a class of preference configurations on collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have implications for several areas of inquiry in judicial politics such as models of principal-agent relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

REFUSAL OF THE SUBJECTIVE RIGHT TO THE INVIOLABILITY OF HOME IN A CRIMINAL PROCEDURE (THEORETICAL AND LEGAL ASPECT)

The article discusses consent to the conduct of investigative actions in a home as a refusal of an authorized person from his subjective right to the inviolability of the home, as well as the peculiarities of the procedural procedure for conducting investigative actions in a home in the presence of a refusal of the subjective right to its inviolability. The legal significance of consent to the entry of strangers into the home is that it is a waiver of the right to the inviolability of the home and is one of the legal facts that allow the official conducting the investigative action to interfere with the right of this person. Proceeding from the general signs of a waiver of the right, the authors argue that the inviolability of the home is a subjective right that can be waived, they determine the persons whose waiver of the right to the inviolability of the home has legal significance. By renouncing his right to the inviolability of his home, a person turns out to be from the powers that make up the content of this right. The authors come to the conclusion that the constitutional and legal nature of the principle of the inviolability of the home makes it necessary to ascertain the opinion of all residents on the performance of any investigative actions in the home, with the exception of a search and seizure, the basis for the production of which is exclusively a judicial decision. The article also analyzes the procedure for giving up the right to the inviolability of the home by giving consent.

Can Predictive Justice Improve the Predictability and Consistency of Judicial Decision-Making?

There has recently been talk of algorithms that predict decisions in legal cases being used by the judiciary to improve the predictability and consistency of judicial decision making. We argue that their use may minimise the error rate of decisions in the long run, but that this would require not only major technical advances but also major changes in legal thinking about what is the most important objective of judicial decision-making: optimising individual justice in a particular case or reducing errors in the long run. We further argue that if algorithmic decision predictors give any useful information in individual cases to judges at all, this is not in its predictions but in its explanations.

Tax avoidance in New Zealand: in search of principles

<p>This paper analyses the judicial application of New Zealand’s general anti-tax avoidance rule contained in s BG 1 of the Income Tax Act 2007 in the light of three 20th Century jurisprudential theories of legal reasoning. It focuses specifically on the role of moral principles in the process of judicial decision-making and explores whether existing case law on the avoidance provision can be seen as supporting the hypothesis that judges apply moral principles when reaching decisions. Following the test laid down for tax avoidance in the Supreme Court’s decision in Ben Nevis Ventures Ltd & Others v Commissioner of Inland Revenue, the paper concludes that judges have the ability, in some cases, to reach their decision about whether there has been tax avoidance by applying the moral principle that tax should apply uniformly to all cases that are economically similar.</p>

Tax avoidance in New Zealand: in search of principles

<p>This paper analyses the judicial application of New Zealand’s general anti-tax avoidance rule contained in s BG 1 of the Income Tax Act 2007 in the light of three 20th Century jurisprudential theories of legal reasoning. It focuses specifically on the role of moral principles in the process of judicial decision-making and explores whether existing case law on the avoidance provision can be seen as supporting the hypothesis that judges apply moral principles when reaching decisions. Following the test laid down for tax avoidance in the Supreme Court’s decision in Ben Nevis Ventures Ltd & Others v Commissioner of Inland Revenue, the paper concludes that judges have the ability, in some cases, to reach their decision about whether there has been tax avoidance by applying the moral principle that tax should apply uniformly to all cases that are economically similar.</p>

An Inheritance Code for New Zealand

<p>In this thesis I review New Zealand's present inheritance laws which are characterised by: 20 disparate statutes stretching back 100 years; a lack of clear and consistent policies; a failure to adapt to fundamental changes in life expectancy, re-partnering and family groupings that have taken place over the last 40 years; inconsistent judicial decision-making; dual jurisdiction of the Family Court and High Court; mechanisms to avoid the consequences of the current legislation. Calls for urgent and fundamental reform have been met by piecemeal ad hoc changes. In contrast, reform in Australia has been systematic and carefully analysed. After considering the two common inheritance regimes around the world (the fixed rule scheme and the court-based discretionary system), I reach two fundamental conclusions: adoption of an inheritance code; recognition of the principle of testamentary freedom. In addition I recommend a number of changes to New Zealand's inheritance laws, and in particular: acceptance of the primacy of the position of a surviving spouse or partner; replacement of the current family protection and testamentary promises claims with support and contribution claims; restriction of estate claims to spouses, partners and minor children; recognition of the rights of "accepted children" (stepchildren and whangai); clarification of the ability to compromise and contract out of claims; empowering one court to administer all inheritance laws; anti-avoidance measures; equating the rights of spouses, civil union partners and long term de facto partners on separation. I conclude this thesis with a skeleton of the proposed inheritance code including drafts of some of the key provisions.</p>

An Inheritance Code for New Zealand

<p>In this thesis I review New Zealand's present inheritance laws which are characterised by: 20 disparate statutes stretching back 100 years; a lack of clear and consistent policies; a failure to adapt to fundamental changes in life expectancy, re-partnering and family groupings that have taken place over the last 40 years; inconsistent judicial decision-making; dual jurisdiction of the Family Court and High Court; mechanisms to avoid the consequences of the current legislation. Calls for urgent and fundamental reform have been met by piecemeal ad hoc changes. In contrast, reform in Australia has been systematic and carefully analysed. After considering the two common inheritance regimes around the world (the fixed rule scheme and the court-based discretionary system), I reach two fundamental conclusions: adoption of an inheritance code; recognition of the principle of testamentary freedom. In addition I recommend a number of changes to New Zealand's inheritance laws, and in particular: acceptance of the primacy of the position of a surviving spouse or partner; replacement of the current family protection and testamentary promises claims with support and contribution claims; restriction of estate claims to spouses, partners and minor children; recognition of the rights of "accepted children" (stepchildren and whangai); clarification of the ability to compromise and contract out of claims; empowering one court to administer all inheritance laws; anti-avoidance measures; equating the rights of spouses, civil union partners and long term de facto partners on separation. I conclude this thesis with a skeleton of the proposed inheritance code including drafts of some of the key provisions.</p>