Handbook of Legal Reasoning and Argumentation

Contents

Contributors

Introduction

Basic Concepts for Legal Reasoning

Reasons (and Reasons in Philosophy of Law)

1 Premise

2 The Different Classes of Reasons: Normative, Motivating, Explanatory

2.1 Normative Reasons

2.2 Motivating Reasons

2.3 Explanatory Reasons

3 The Ontology of Reasons

4 Epistemic and Practical Reasons

5 The Modality (and Strength) of Reasons

5.1 Conflict and Weighing Between First-Order Reasons

5.2 First-Order Reasons and Second-Order (Exclusionary) Reasons

6 Reasons in (Philosophy of) Law

7 Concluding Remarks

References

Reasons in Moral Philosophy

1 What Is a Moral Reason?

2 Explanatory and Normative Reasons

3 The Issue of Agential Authority

4 Subjective and Objective Reasons

5 Personal and Impersonal Reasons: Integrity and Authenticity

6 Drawing the Boundaries of the Moral Domain

7 Moral Reasons and Moral Reasoning

8 Moral Reasons in Conflict

9 Moral Reasons and Coordination

10 Moral Reasons and Compliance

References

Legal Reasoning and Argumentation

1 Forms of Reasoning by Applying Rules to Cases

2 Case-Based Reasoning from Analogy

3 Reasoning and Argument

4 Reasoning by Drawing Inferences from Sources

5 Defeasible Logic

6 Reasoning, Argument, and Proof

7 Conclusions

References

Norms in Action: A Logical Perspective

1 Introduction

2 A Logic for Reasoning About Choices, Actions, and Time

3 Formalization of Responsibility and Influence

3.1 Responsibility

3.2 Influence

3.3 The Relationship Between Influence and Responsibility

4 Deontic Extension

5 Conclusion

References

Of Norms

1 Terminology and Overview

2 Normativity

2.1 Ought-to-Be and Ought-to-Do

2.2 Influencing and Guiding Behavior

2.3 Guidance by Norms: The Second-Person Point of View

2.4 Norms and Facts

3 Rules as Soft Constraints on Possible Worlds

3.1 Directions of Fit

3.2 Possible Worlds

3.3 Constraints

3.4 Rules as Soft Constraints

4 Kinds of Facts

4.1 Objective Facts

4.2 Brute Social Facts

4.3 Social Rules

4.4 Rule-Based Facts

4.5 Creation and Derogation

4.6 Factual and Descriptive Counterparts of Rules

4.7 Norm-Propositions

4.8 “Entailed” Norms

5 Deontic Facts

5.1 Deontic Facts and Motivation

5.2 Duties and Obligations

5.3 Being Obligated and Owing to Do Something

5.4 Permissions

5.5 The Anatomy of Ought-to-Do

6 Of Norms and Other Rules

6.1 Rules as Individuals in the Logical Sense

6.2 Dynamic Rules

6.3 Fact-to-Fact Rules

6.4 Counts-as Rules

6.5 Norms

6.6 Competence-, Power-, and Other Status-Conferring Rules

7 Summary

References

Values

1 Euthyphro Dilemma and Other Questions About Value

2 Aims and Desiderata for a Theory of Value

3 Some Substantive Questions About Value

4 Theories of Value

5 Value Disagreement

6 Pluralism and Incommensurability

7 Values and Rational Choice

8 Persons and Values

9 Values and Emotions

10 Valuing

References

The Goals of Norms

1 Goals–Norms: A Multiple Relation

2 Teleologies of Mind: Goals, Functions, and Pseudogoals

2.1 What Are Goals?

2.2 The Relations Between Psychological Goals and Behavior Functions

2.3 Goals Versus Pseudogoals

2.4 Subjective Kinds of Goals

3 Features of the Goal of an N

3.1 Impersonal

3.2 Avoidance

3.3 Meta-goals

3.4 Origin and Base of Norms: Norms Come from the Social Goals to Be Adopted

4 The Relationship Between the Mental and External Goals of Ns

4.1 Norm Functions and Goals

4.2 Subgoals

4.3 The Subject and N’s Aim

5 Concluding Remarks

References

Authority

1 Two Kinds of Authority: Epistemic and Practical

2 Power, de Facto Authority, and Legitimate Authority

3 Practical Authority as Personal

4 Practical Authority and Its Reason-Giving Capacity

5 Practical Authority and Its Capacity to Bind Subjects

6 The Kind of Reasons to Which Legitimate Directives Give Rise

7 The Justification of Practical Authority

References

The Authority of Law

1 Human Action and Authority: Tracing the Correct Relationship

2 Intentional Action Under the Guise of the Good

2.1 Aristotle’s Distinction Between Actuality and Potentiality

3 Law and Energeia: How Do Citizens Comply with Legal Rules?

References

Kinds of Reasoning and the Law

Deductive and Deontic Reasoning

1 Introduction

2 Deductive Reasoning

2.1 Deductive Reasoning—Logical Consequence as Deducibility

2.2 Deductive Reasoning—Logical Consequence as Entailment

3 Deontic Reasoning

3.1 Introduction

3.2 Obligations and Permissions: Basics

3.3 Facultativeness

3.4 Deontic Logic: Axiomatics and Semantics

3.5 Directed Obligations

4 Deontic Reasoning—Some Glimpses Beyond

4.1 Normative Systems

4.2 Normative Dynamics

References

Inductive, Abductive and Probabilistic Reasoning

1 Introduction

2 Tales of Woe and Reasoning

2.1 Putting Induction and Abduction into Context

2.2 Induction and Abduction in Law

3 A Primer in Probability Theory in Law

3.1 Probabilistic Conceptions of Evidential Value

3.2 The Language of Probability

4 Conclusion

References

Defeasibility in Law

1 The Idea of Defeasibility

2 Defeasibility in Reasoning and Nonmonotonic Inference

3 Conclusive and Defeasible Arguments

4 Linked Arguments and Convergent Argument Structures

5 Attacks Against Arguments: Rebutting and Undercutting

6 Rebutting and Undercutting in the Legal Domain

7 Levels of Abstraction of Arguments

8 Reinstatement

9 Dynamic Priorities

10 Patterns of Defeasible Reasoning

11 Legal Systems as Argumentation Bases

12 The Rationale for Defeasibility

13 Defeasible Reasoning and Probability

14 Defeasibility in the Law

15 Overcoming Legal Defeasibility?

16 The Emergence of the Idea of Defeasibility in Law and Ethics

17 The Idea of Defeasibility in Logic and AI

18 Defeasibility in Research on AI and Law

19 Defeasibility in Legal Theory

20 Conclusion

References

Analogical Arguments

1 The Many Faces of Analogy

2 The Architecture of Analogical Arguments

3 The Problem Situation

4 Prima Facie Similarity

5 Relevant Similarity

5.1 Relevant Similarity in Legal Analogical Arguments

5.2 Theory-Based Analogy

5.3 Factor-Based Analogy

6 Solution

References

Choosing Ends and Choosing Means: Teleological Reasoning in Law

1 Introduction

2 The Structure of Consequentialist Reasoning

2.1 The Structure of Evaluation

2.2 Rational Choice

2.3 Concluding Comments

3 Teleology and Instrumentalism

4 Choosing Ends

4.1 The Legislative Determination of Legal Ends

4.2 Interpretation and the Determination of Legal Ends

5 Choosing Means

5.1 Identifying Options

5.2 Choosing the Best Option

6 Concluding Remarks

References

Interactive Decision-Making and Morality

1 Introduction

2 Basic Information About Game Theory

2.1 Tasks and Branches of Game Theory

2.2 The Concept of a Game

2.3 The Assumptions of Classical Game Theory

2.4 Solution Concepts of Noncooperative Game Theory

2.5 Evolutionary Game Theory

3 Game Theory as a Tool for Better Understanding a Function of Morality

4 Game Theory as a Tool for Determining the Content of Moral Norms

5 Game Theory as a Tool for Criticizing Certain Moral Conceptions

6 Game Theory as a Tool for Analyzing the Problem of the Validity of Moral Norms

7 Game Theory as a Tool for Analyzing the Possibility of Deriving Morality from Instrumental Rationality

8 Game Theory as a Tool for Analyzing Moral Decision-Making

9 Game Theory as a Tool for Analyzing the Nature of Moral Dispositions

10 Game Theory as a Tool for Analyzing the Functions of Moral Emotions

11 Game Theory as a Tool for Analyzing the Cultural Evolution of Moral Norms

12 Conclusions

References

Special Kinds of Legal Reasoning

Evidential Reasoning

1 Setting the Stage

1.1 Eyewitness Testimony

1.2 DNA Evidence

1.3 Central Questions

2 Three Normative Frameworks

2.1 Arguments

2.2 Probabilities

2.3 Scenarios

3 Conflicting Evidence

3.1 Arguments

3.2 Scenarios

3.3 Probabilities

4 Evidential Value

4.1 Probability

4.2 Arguments

4.3 Scenarios

5 Coherently Interpreting the Evidence

5.1 Scenarios

5.2 Arguments

5.3 Probability

6 Reasoning and Decision Making

6.1 Probability

6.2 Arguments

6.3 Scenarios

7 Summary and Conclusion

7.1 Conflicting Evidence

7.2 Evidential Value

7.3 Coherently Interpreting the Evidence

7.4 Reasoning and Decision Making

8 Further Readings

8.1 Setting the Stage

8.2 Three Normative Frameworks

8.3 Conflicting Evidence

8.4 Evidential Value

8.5 Coherently Interpreting the Evidence

8.6 Reasoning and Decision Making

References

Interpretive Arguments and the Application of the Law

1 The Charm of Interpretation

2 General Scepticism About Legal Rules

3 The Communication Theory of Law

3.1 The Communication Theory of Legal Interpretation

4 Challenges to the Communication Theory

4.1 An Alternative Route for the Contribution Objection

5 Complex CT

6 Conclusion

References

Statutory Interpretation as Argumentation

1 Introduction

2 Interpretive Arguments

2.1 The Existing Types of Interpretive Arguments

2.2 Classifying Interpretive Arguments

3 Translating Interpretive Arguments into Schemes

3.1 Assumptions and Common Template

3.2 Positive Interpretive Schemes

3.3 Negative Interpretive Schemes

4 Attacking, Questioning, and Defending Interpretive Arguments

5 The Education Grants Example

6 Fitting Interpretive Schemes to Cases

7 Formalizing Interpretive Arguments—General Structure

8 Interpretive Arguments—A Formalization

9 Preference Arguments over Interpretive Arguments

10 From Best Interpretations to Individual Claims

11 Conclusions

References

Varieties of Vagueness in the Law

1 Varieties of Vagueness

2 Vagueness in the Legal Context

2.1 Ordinary Vagueness

2.2 Transparent Vagueness

2.3 Extravagant Vagueness

2.4 Ambiguity and Polysemy

2.5 Conversational Vagueness

References

Balancing, Proportionality and Constitutional Rights

1 Introduction

2 Rights, Balancing, Proportionality

3 Theories of the Connection Between Rights and Proportionality

3.1 Interest Theory and Balancing

3.2 Rights as Principles: Robert Alexy’s Theory

3.3 Rights and Limitations: Barak’s Analysis

3.4 Kai Möller: The Global Model of Constitutional Rights

4 Proportionality and Rights: The Critical Theses

4.1 Proportionality as a Teleological Approach: Rights as Fungible Goods

4.2 Proportionality and “Positive” and “Horizontal” Rights

5 Proportionality and Rights Adjudication

6 Proportionalism in Review

6.1 Proportionality Balancing and Means-Ends Proportionality

6.2 Proportionality Between Ad Hoc and Definitional Balancing

7 Proportionalism of Review

8 Alternative Approaches

References

A Quantitative Approach to Proportionality

1 Introduction

2 Quantitative Reasoning Without (Symbolically Expressed) Numbers

3 Basic Concepts

4 Impacts on Single Values

5 Pareto-Superiority

6 Comparative Evaluations Without Pareto-Superiority

7 Assessing Compliance with Value Norms

8 Teleological Reasoning and the Choice of Rules

9 Consistency in Balancing

10 Conclusions

References

Coherence and Systematization in Law

1 Introduction

2 Theories of Normative Coherence

2.1 Principle-Based Theories

2.2 Case-Based Theories

2.3 Constraint-Satisfaction Theories

3 Objections to Legal Coherentism

3.1 The Vagueness Problem

3.2 What Is Coherence-Driven Inference?

3.3 The Circularity Objection

3.4 Coherence Versus Authority

3.5 Coherence and Legal Conservatism

3.6 The Alternative Coherent Systems Objection

3.7 The Problems of Holistic Coherentism

3.8 Value Pluralism, Conflict, and Coherence

3.9 Coherence and Truth in Law

4 The Coherence Bias: A Plea for Responsibilist Coherentism

5 The Value of Coherence

5.1 The Argument from Antifoundationalism

5.2 Coherence and Emotion

5.3 The Argument from Psychological Plausibility

5.4 The Argument from the Dynamics of Justification

5.5 The Epistemic Value of Coherence

5.6 The Practical Value of Coherence

5.7 The Argument from the Social Function of Coherence

5.8 The Argument from Conflict Resolution

5.9 The Constitutive Value of Coherence

6 Conclusions

References

Precedent and Legal Analogy

1 Introduction

2 Reasoning from Precedent

2.1 Nature of Precedential Constraint

2.2 How Much Precedential Constraint Is Enough?

2.3 Precedential Constraint and Characterization

3 Argument from Legal Analogy

4 Arguments from Hypotheticals, a Kind of Legal Analogy

5 Roles of Differences, Similarities, and Rules in Precedent and Legal Analogy

6 Arguments in Practice for Following Precedent or Legal Analogy

6.1 Arguments for Following/Departing from Precedent

6.2 Arguments from Legal Analogies or Hypotheticals

6.3 Examples

6.4 Comparing Jurisprudential and Descriptive Accounts

7 Argument Schema for Legal Analogy

7.1 Argument Schemes for Case Analogies and Hypotheticals

7.2 Examples

7.3 Toward Computer Implementation

8 Special Argument Schemes for Statutes or Constitutions

9 Conclusions

References

Economic Logic and Legal Logic

1 Introduction

2 What Is Economic Logic?

2.1 Introduction

2.2 The Logic of (Some) Economic Explanation

2.3 The Logic of Economic Evaluation: Welfare Economics

3 Economic Logic as a Social Process Rather Than a Reasoning Process

3.1 The Power of Private Ordering

3.2 Blind Justice: The Social Processes of Legal Development

3.3 “Efficiency” on Collegial Courts

3.4 Legislative and Other Processes

4 Situated Legal Reasoning

5 The Logic of Legislation

6 The Logic of Administrative Agencies

6.1 The Theory of Cost-Benefit Analysis

6.2 Cost-Effectiveness

7 The Logic of Adjudication

8 Concluding Remarks

References

Index of Names

Index of Subjects