Lawyers pretend as if the process of application of laws, as well as its outcome, could be an analytic-deductive derivation; especially law students learn that legal decision-making is primarily a logic process. But we know that application of laws depends on analytic-logical as well as on voluntaristic (wilful) elements. Exact relations between these components are unknown and will be unknown. At most German law schools students as the most important imperative tool learn the so called “Auslegung” through the use (...) of theoretical instruments, which do not reflect the interpretation of law practice. These mentioned causes result in irrationality of legal decision-making. In order to achieve more rationality in the process and result of legal decision-making, the contribution makes four suggestions regarding legal methodology and legal education. These proposals consist of few long-term pragmatic approaches to more rationality of legal decision-making. (shrink)

We note an increasing consciousness of weakness of legal methodology taught to law students today: The students get neither real idea nor feeling of legal decision-making as mixture of legal matters, issue of facts, personal inputs, diverging interests, and the interplay with other actors. For minimize these defects it is necessary that law students learn in legal studies the following points: (1) Legal decision-making is a special kind of decision-making and is embedded in all (...) problems of this process. (2) Jurisprudence is a hybrid science: It deals with facts of issue as well with legal matter. (3) Jurisprudence will be understood as transnational science and requires greater cooperation between law schools all over the world. (4) Legal education should focus on general principles and legal tools rather than on detailed rules. (5) Legal theory should demonstrate students our lack of understanding legal decision-making. (6) A realistic legal methodology has to take into account the impossibility of absolute certainty of the correctness of legal decision. (7) It is important to point out that analysis of facts of the case as crucial part of legal methodology requires teaching systems to introduce students in the respective techniques in practice like case studies, projects as well as legal clinics or SASLA-system. (shrink)

Este artículo discute las opiniones de Ibn Ḥazm de Córdoba jurista y teólogo, acerca de la homosexualidad. Aunque se hace referencia a su obra literaria Ṭawq al-ḥamāma, rica en anécdotas sobre atracción homoerótica, el artículo se centra en su voluminosa obra legal zahirí Kitāb al-Muḥallā y analiza el razonamiento legal de Ibn Ḥazm sobre la homosexualidad tanto masculina como femenina comparándola con la de otros juristas, en particular, malikíes.A diferencia de sus contemporáneos malikíes, Ibn Hazm mantiene que la (...) homosexualidad no debe equipararse a la fornicación que incurre en la pena de muerte. Por el contrario, aboga por el relativamente suave castigo de diez latigazos por prácticas homosexuales, basado en su interpretación de las fuentes reveladas tal y como se expone en este artículo.Aunque algunos autores modernos han insinuado que el propio Ibn Ḥazm era homosexual, él condena categóricamente las relaciones entre miembros de un mismo sexo y mantiene que los homosexuales deben reformarse. (shrink)

The ramifications of modernity and the resultant challenges compelled Ottoman intellectuals and state officials to contemplate matters like as innovation, progress, and change. The pursuit of remedies to eradicate political, military, and economic deficiencies was similarly evident in the legal domain. Ziya Gökalp articulated his perspectives on the origins, societal efficacy, and adaptability of law within the framework of the Turkism movement, presenting several methodologies that redefined the interplay among religion, law, society, and state. The most characteristic method among (...) them is the internal sociological methodology of law, which he equated with his own identity. Other Turkist figures of the time supported this theory, which aimed to bring dynamism to Islamic law in line with modern demands and changing conditions, as well as to establish a national law-society-state relationship. Another approach put forward by Gökalp was based on the distinction between legal (qāḍāī) and ethical/spiritual (diyānī) aspects that were established in traditional Islamic law. In Gökalp's intellectual life that extends from the last years of the Ottoman Empire to the first years of the Republic, two different stages stand out. Gökalp, who tended to restructure jurisprudential concepts with an original interpretation in the late Ottoman period, became a persistent defender of the distinction between religion and state as well as religion and law in the Republican period. However, he did not deny the role of religion in the existence of the nation and emphasized the place of religious institutions, such as the office of Sheikhul-Islam, in the Republican period. Although he took the traditional jurisprudential perspectives into consideration, he could not escape from the criticism of his fellow intellectuals such as İzmirli İsmail Hakkı, who represented the traditional understanding. This article addresses Ziya Gökalp's views that he developed on fiqh and sociology in the Turkish modernisation process and sheds light on the possible reflections of these views on the Republican period. (shrink)

In this paper, the methodological character of the internal point of view (IPoV) will be examined. That the IPoV is a method of legal philosophy is not disputed. What is disputed is which point of view a theorist needs to occupy in order to successfully theorise about law. However, the choice between different points of view is based on the participant the theory chooses to study. This means that the participant’s viewpoint is not a method of our theory but (...) an epistemic point through which the object of our study becomes available. If this is the case, different theories simply aim to study different participants. Hence, the criticisms raised on methodological grounds against theories not taking the IPoV or not taking the correct IPoV lose their force. Here, to demonstrate this point, the paper will offer a definition of method from a theory-construction perspective and examine the uses of the IPoV in Hart’s theory since it is the one that introduced the notion in legal philosophy. I will argue that the IPoV cannot play a methodological role for reaching main epistemic aims, but it can be a method for identifying the object of study. (shrink)

The article provides a comprehensive analysis of scientific approaches to the formation of legal regulation of relations arising in the development and use of artificial intelligence technologies, their socio-legal status, as well as social, ethical, methodological, and practical legal issues with an emphasis on the fundamentals of natural legal doctrine. The author’s vision of the concept of human interaction and artificial intelligence from the standpoint of legal relations is given. Emphasis is placed on the need (...) to study the problems that arise in this area, within the framework of information law, as a complex branch of law and sociohumanitarian informology—at the level of an interdisciplinary approach. Ways to improve the mechanisms and methods of legal support in the field of artificial intelligence through the development and implementation of technological and legal methods as an innovative tools and effective tools for special technological impact. (shrink)

This paper presents a methodology to design and implement programs intended to decide cases, described as sets of factors, according to a theory of a particular domain based on a set of precedent cases relating to that domain. We useDialectical Frameworks, a recent development in AI knowledge representation, as the central feature of our design method. ADFs will play a role akin to that played by Entity–Relationship models in the design of database systems. First, we explain how the factor (...) hierarchy of the well-known legal reasoning system CATO can be used to instantiate an ADF for the domain of US Trade Secrets. This is intended to demonstrate the suitability of ADFs for expressing the design of legal cased based systems. The method is then applied to two other legal domains often used in the literature of AI and Law. In each domain, the design is provided by the domain analyst expressing the cases in terms of factors organised into an ADF from which an executable program can be implemented in a straightforward way by taking advantage of the closeness of the acceptance conditions of the ADF to components of an executable program. We evaluate the ease of implementation, the performance and efficacy of the resulting program, ease of refinement of the program and the transparency of the reasoning. This evaluation suggests ways in which factor based systems, which are limited by taking as their starting point the representation of cases as sets of factors and so abstracting away the particular facts, can be extended to address open issues in AI and Law by incorporating the case facts to improve the decision, and by considering justification and reasoning using portion of precedents. (shrink)

Web legal information retrieval systems need the capability to reason with the knowledge modeled by legal ontologies. Using this knowledge it is possible to represent and to make inferences about the semantic content of legal documents. In this paper a methodology for applying NLP techniques to automatically create a legal ontology is proposed. The ontology is defined in the OWL semantic web language and it is used in a logic programming framework, EVOLP+ISCO, to allow users (...) to query the semantic content of the documents. ISCO allows an easy and efficient integration of declarative, object-oriented and constraint-based programming techniques with the capability to create connections with external databases. EVOLP is a dynamic logic programming framework allowing the definition of rules for actions and events. An application of the proposed methodology to the legal web information retrieval system of the Portuguese Attorney General’s Office is described. (shrink)

The field of socio-legal research has encountered three fundamental challenges over the last three decades - it has been criticized for paying insufficient attention to legal doctrine, for failing to develop a sound theoretical foundation and for not keeping pace with the effects of the increasing globalization and internationalization of law, state and society. This book examines these three challenges from a methodological standpoint. It addresses the first two by demonstrating that legal sociology has much to say (...) about justice as a kind of social experience and has always engaged theoretically with forms of normativity, albeit on its own empirical terms rather than on legal theory's analytical terms. The book then explores the third challenge, a result of the changing nature of society, by highlighting the move from the industrial relations of early modernity to the post-industrial conditions of late modernity, an age dominated by information technology. It poses the question whether socio-legal research has sufficiently reassessed its own theoretical premises regarding the relationship between law, state and society, so as to grasp the new social and cultural forms of organization specific to the twenty-first century's global societies. (shrink)

The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dickson's Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Hart's 'Postscript' to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but also propose (...) a systematic agenda for future work. The editors have selected articles written by leading legal theorists, including, among others, Leslie Green, Brian Leiter, Joseph Raz, Ronald Dworkin, and William Twining, and organized under four broad categories: 1) problems and purposes of legal theory; 2) the role of epistemology and semantics in theorising about the nature of law; 3) the relation between morality and legal theory; and 4) the scope of phenomena a general jurisprudence ought to address. (shrink)

Rule of law is a concept that is regularly debated by legal philosophers, often in connection to discussion of the concept of law. In this article, the focus is not on the substance of the conceptual claims, but on the methodologies employed by legal philosophers, investigating seminal articles on the rule of law by Joseph Raz and Jeremy Waldron. I argue that their philosophical argumentations often crucially depend on empirical or legal doctrinal arguments. However, these arguments remain (...) underdeveloped. I explore how these arguments could be linked to approaches related to rule of law in different fields of legal scholarship and investigate how the methodologies of these fields may complement each other. Thus, the article aims to provide an argument for a specific form of triangulation of three kinds of approaches to the rule of law: philosophical, social-scientific and legal doctrinal. This method of triangulation is illustrated by a discussion of the World Justice Project’s Rule of Law Index. (shrink)

This article examines methodological debates in legal philosophy by focusing on two methodological claims in H. L. A. Hart’s 1961 book, The Concept of Law: that Hart’s theory is both general and descriptive, and an exercise in both linguistic analysis and descriptive sociology. It considers what these claims reveal about Hart’s theoretical ambitions and methodological commitments, and what light they shed on debates in legal philosophy since then. In particular, it discusses the most important elements of Hart’s theory, (...) such as the union of primary and secondary rules in law, the “rule of recognition” as a social rule, and the relationship between legal and moral norms. It also explores several objections to Hart’s approach to the problems of legal philosophy, including one that questions the fruitfulness of the methodology of conceptual analysis. Finally, it analyzes the argument of Hart and all legal positivists that legal systems are social constructs. (shrink)

This article proposes an innovative methodology for enhancing the technical validation, legal alignment and interdisciplinarity of attempts to encode legislation. In the context of an experiment that examines how different legally trained participants convert select provisions of the Australian Copyright Act 1968 (Cth) into machine-executable code, we find that a combination of manual and automated methods for coding validation, which focus on formal adherence to programming languages and conventions, can significantly increase the similarity of encoded rules between coders. (...) Participants nonetheless encountered various interpretive difficulties, including syntactic ambiguity, and intra- and intertextuality, which necessitated legal evaluation, as distinct from and in addition to coding validation. Many of these difficulties can be resolved through what we call a process of ‘legal alignment’ that aims to enhance the congruence between encoded provisions and the true meaning of a statute as determined by the courts. However, some difficulties cannot be overcome in advance, such as factual indeterminacy. Given the inherently interdisciplinary nature of encoding legislation, we argue that it is desirable for ‘rules as code’ (‘RaC’) initiatives to have, at a minimum, legal subject matter, statutory interpretation and technical programming expertise. Overall, we contend that technical validation, legal alignment and interdisciplinary teamwork are integral to the success of attempts to encode legislation. While legal alignment processes will vary depending on jurisdictionally-specific principles and practices of statutory interpretation, the technical and interdisciplinary components of our methodology are transferable across regulatory contexts, bodies of law and Commonwealth and other jurisdictions. (shrink)

Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows (...) that the responses of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet. (shrink)

Laws set requirements that force organizations to assess the security and privacy of their IT systems and impose them to implement minimal precautionary security measures. Several IT solutions (e.g., Privacy Enhancing Technologies, Access Control Infrastructure, etc.) have been proposed to address security and privacy issues. However, understanding why, and when such solutions have to be adopted is often unanswered because the answer comes only from a broader perspective, accounting for legal and organizational issues. Security engineers and legal experts (...) should analyze the business goals of a company and its organizational structure and derive from there the points where security and privacy problems may arise and which solutions best fit such (legal) problems. The paper investigates the methodological support for capturing security and privacy requirements of a concrete health care provider. (shrink)

Until quite recently questions about methodology in legal research have been largely confined to understanding the role of doctrinal research as a scholarly discipline. In turn this has involved asking questions not only about coverage but, fundamentally, questions about the identity of the discipline. Is it (mainly) descriptive, hermeneutical, or normative? Should it also be explanatory? Legal scholarship has been torn between, on the one hand, grasping the expanding reality of law and its context, and, on the (...) other, reducing this complex whole to manageable proportions. The purely internal analysis of a legal system, isolated from any societal context, remains an option, and is still seen in the approach of the French academy, but as law aims at ordering society and influencing human behaviour, this approach is felt by many scholars to be insufficient. Consequently many attempts have been made to conceive legal research differently. Social scientific and comparative approaches have proven fruitful. However, does the introduction of other approaches leave merely a residue of 'legal doctrine', to which pockets of social sciences can be added, or should legal doctrine be merged with the social sciences? What would such a broad interdisciplinary field look like and what would its methods be? This book is an attempt to answer some of these questions. (shrink)

This book shows that Hauriou's positivist and pragmatic jurisprudence and social theory, as well as their application to the study of institutions, is satisfactorily supported by his idealistic philosophy. The nine chapters first locate Hauriou's influences, then situate his disciplinary methodologies within methodology in general. The central chapters concern each of the three methodologies in turn.

Currently, many scientific fields such as psychology or biomedicine face a methodological crisis concerning the reproducibility, replicability, and validity of their research. In neuroimaging, similar methodological concerns have taken hold of the field, and researchers are working frantically toward finding solutions for the methodological problems specific to neuroimaging. This article examines some ethical and legal implications of this methodological crisis in neuroimaging. With respect to ethical challenges, the article discusses the impact of flawed methods in neuroimaging research in cognitive (...) and clinical neuroscience, particularly with respect to faulty brain-based models of human cognition, behavior, and personality. Specifically examined is whether such faulty models, when they are applied to neurological or psychiatric diseases, could put patients at risk, and whether this places special obligations on researchers using neuroimaging. In the legal domain, the actual use of neuroimaging as evidence in United States courtrooms is surveyed, followed by an examination of ways that the methodological problems may create challenges for the criminal justice system. Finally, the article reviews and promotes some promising ideas and initiatives from within the neuroimaging community for addressing the methodological problems. (shrink)

This essay attempts to provide an accessible introduction to the topic area of conceptual analysis of legal concepts and its methodology. I attempt to explain, at a fairly foundational level, what conceptual analysis is, how it is done and why it is important in theorizing about the law. I also attempt to explain how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. Next, I explain the enterprise of conceptual jurisprudence, as concerned to (...) provide an account of those properties that distinguish things that are law from things that are not law which constitute the former things as law, illustrating this explanation with what I hope are intuitive examples. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is discussed. (shrink)

Efficient thinking is the foundation of efficient operation. The correct definition of concepts, especially the basic ones for a given field, in order to reach the truth, is a condition for the development of science and its social utility. The Petrażycki’s research methodology of law is a thoroughly modern method, as it enables effective examination of the accuracy of contemporary legal theories created after Petrażycki’s input. A model contemporary theory susceptible to an examination through the research methodology (...) of law by Petrażycki is the normative theory of legal rules and non-legal standards by Dworkin. For this purpose some falsifications will be subject, i.e. selected ad hoc among many others, two important theories of normative law theory Dworkin. The first one is the thesis classifying legal norms into two groups of norms, namely legal rules and non-legal standards. The second one is a thesis about the existence of who are capable of discovering and issuing lawful and, at the same time, fair court decisions, which are also the only ones for resolving particular court disputes. Unfortunately, owing to the seemingly cognitive research methodology of Petrażycki, both Dworkin’s deformed division of legal norms as well as Dworkin’s Hercules judges - cannot stand the test of authenticity. Due to the Petrażycki’s methodology, the legal-normative theory of Dworkin does not lose an innovative outlook on the existence of social norms, which are being discovered by judges in the jurisprudence, indifferently to the doubts over their proper classification. Moreover, Dworkin’s theory is placed between naive theories, regardless of whether they are considered realistically naive theories or nihilistically naive theories A few random reflections on the well-known work of Dworkin with the help of Petrażycki’s methodology serve to provide a new perspective on the contemporary legal normativity. (shrink)

In this monograph a fundamental distinction is made between law and juridical thinking. Law is the content of legal rules and the systems of legal rules. Juridical thinking is the handling of the law by the lawyers. To this distinction corresponds a basic distinction between the language of law and the language of juridical thinking, and correlatively, between L-concepts and J-concepts. The monograph is devoted to the J-concepts, especially of technical J-concepts. Four kinds of J-concepts are investigated: morphological (...) J-concepts, those that help us to structure the law in a logical and functional way; topological J-concepts, those that help us to indicate the phenomena to which the law is applicable, and to separate the areas of application for different legal systems; praxeological J-concepts, those that help us to explore the relations between law and action, and methodological J-concepts, those that help us to describe the methods of the professional-juridical handling of the law. The work can be characterised as presenting a lawyer ́s philosophy of law. (shrink)

Essential Legal Knowledge and Writing Skills focuses on the learning needs of students in legal master's programs. This text provides the knowledge and skills students need to succeed in legal studies and their professional careers. It incorporates student feedback and lessons learned in the authors' combined 30 years of experience teaching master's students. This foundational text covers court and government structure and function. It provides tested tools and strategies to read and analyze cases, statutes, and regulations. The (...) ethics chapter addresses the potential pitfalls of ethical issues and the unauthorized practice of law. The book devotes three chapters to writing, acknowledging that industry leaders seek and promote employees with excellent writing skills. A strong emphasis on regulations provides guidance to the many students who work in highly regulated fields. The text highlights specific strategies to research regulations and submit comments to agencies to effect change in their industries. It equips students with the requisite knowledge of the legal world, and the ability to write cogently about business and the law. Essential Legal Knowledge and Writing Skills is a clear, concise, foundational text grounded in best practices. (shrink)

This is an examination of Ronald Dworkin's claim that the true theory of legal practice is the theory that puts legal practice in its ‘best light’. By ‘best light’ Dworkin means a measure of desirability or goodness: the true theory of legal practice, says Dworkin, portrays the practice at its most desirable. Now why would that be the case? What's between the desirability of a theory and its truth? The article examines the reasons leading Dworkin to this (...) strange claim. It then argues that the claim is ultimately unsustainable, but also that it contains much insight about legal practice: the true theory of legal practice need not put the practice at its most desirable, but there is much between maximizing desirability and the practice's standards. Dworkin's is another important effort to explain the normative aspect of legal validity—in a way that transcends both the crudeness of natural law, and legal positivism's attempt to wash its hands of this crucial aspect of law. (shrink)

This article examines the methodology of a core branch of contemporary political theory or philosophy: “analytic” political theory. After distinguishing political theory from related fields, such as political science, moral philosophy, and legal theory, the article discusses the analysis of political concepts. It then turns to the notions of principles and theories, as distinct from concepts, and reviews the methods of assessing such principles and theories (e.g., the reflective-equilibrium method), for the purpose of justifying or criticizing them. Finally, (...) it looks at a recent debate on how abstract and idealized political theory should be, and assesses the significance of disagreement in political theory. The discussion is carried out from an angle inspired by the philosophy of science. (shrink)

This article examines the methodology of a core branch of contemporary political theory or philosophy: “analytic” political theory. After distinguishing political theory from related fields, such as political science, moral philosophy, and legal theory, the article discusses the analysis of political concepts. It then turns to the notions of principles and theories, as distinct from concepts, and reviews the methods of assessing such principles and theories, for the purpose of justifying or criticizing them. Finally, it looks at a (...) recent debate on how abstract and idealized political theory should be, and assesses the significance of disagreement in political theory. The discussion is carried out from an angle inspired by the philosophy of science. (shrink)

In this essay I argue a particular legal philosophy is committed to a partial and closed view of how philosophical work is conceived. This view produces a legal philosophy that lacks the ability to guide substantive discussions. I argue that methodological legal positivism is not a good way to articulate the development of legal philosophy. Then, I argue that we need to consider the place that legal philosophy should occupy in the global intellectual landscape. In (...) addition, I develop my argument by distinguishing the work of legal-philosophy jurists from that of legal-philosophy philosophers and philosophy philosophers. As a coda, I sketch the criteria in order to conceive analytical legal philosophy from a new perspective.Resumen:En este ensayo defiendo que cierta forma de hacer filosofía jurídica está comprometida con una visión cerrada y parcial de concebir el quehacer filosófico. Esta visión genera una filosofía jurídica intelectualmente pobre y carente de capacidad para guiar debates sustantivos. Defiendo que el positivismo jurídico metodológico no es una buena manera de articular el desarrollo de la filosofía jurídica. Sostengo, además, que es preciso re- flexionar sobre el lugar que debería ocupar la filosofía jurídica en un panorama intelectual global. Para desarrollar mis argumentos, distingo el trabajo de los filósofos del derecho juristas respecto del de los filósofos del derecho-filósofos y los filósofos-filósofos. A modo de coda, bosquejo cuáles serían los criterios que hay que revisar para concebir la filosofía jurídica analítica desde una nueva perspectiva. (shrink)

What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.

The Current Legal Problems lecture series and annual volume was established over fifty five years ago at the Faculty of Laws, University College London and has long been recognised as a major reference point for legal scholarship. The continuing strength of Current Legal Problems is its representation of a broad range of legal scholarship opinion, theory, methodology, and subject matter, with an emphasis upon contemporary developments of law. Contributions to the 59th volume in the series (...) include a major re-evaluation of the Human Rights Act from Trevor Allan; a survey of recent trends in British crime and control from Robert Reiner; an analysis of the EU's impact on cultural diversity from Bruno de Witte; an examination of tax avoidance from Judith Freedman and a critique of EU constitutionalism from Neil Walker. (shrink)

The paper explores the hypothesis that multinomials can act as authorship-based style distinguishing markers in legal communication. Specifically, the analysis focuses on identifying the quantitative distribution patterns of structural categories of multinomials as typical for two authorship categories and on their communicative function. The two authorship categories that are contrasted here are legal professionals/experts and lay people. The analysis is conducted in the corpus-based methodology with a custom-designed corpus of English, authentic texts found in the legal (...) trade, in the domain of company registration proceedings. The findings confirm that multinomials that are conventionally considered to be a feature of professional legal communication are also cognitively salient in lay communication. Further, the texts drafted by the two categories of authors are profiled by structurally distinct multinomials. Functionally, it has been demonstrated that the structurally distinct types of multinomials that are found quantitatively salient in the two authorship categories are used predominantly for specific stylistic and/or pragmatic functions. Stylistically, multinomials contribute to conventional and ritual patterns which are used to meet the formality standards that have evolved in specific legal professions where authority is of particular importance. Pragmatic factors which account for quantitative salience of specific, structurally profiled categories of multinomials involve mainly reduplication of multinomials that embody norm-related concepts, which is required on the ground of intertextuality and ensures the materialisation of legal effect. (shrink)

In light of new threats in the field of human rights stemming from global geopolitical shifts, criminal law is facing a myriad of new challenges that require adequate responses. Given this context, it is crucial to develop and refine criminal legal measures (CLMs) in order to safeguard societal interests and maintain stability in social relations. This paper undertakes an analysis of contemporary problems in the area of legal regulation and CLMs, as well as assesses the effectiveness of CLMs (...) for individuals engaged in criminal misconduct. The research provides grounds for arguing that the absence of a clear definition of CLMs in Ukrainian legal science renders the term potentially problematic. Moreover, there are currently no taxonomic markers or criteria for classifying CLMs, nor methods for evaluating the effectiveness of specific measures. Within the framework of the announced reforms in Ukraine’s criminal law, it becomes imperative not only to revisit the concept of CLMs but also to develop robust methodologies for assessing their effectiveness. This measure appears necessary both in light of the need to legally formalize CLMs and to systematize them in the future. (shrink)

This paper discusses two methodological notions, the concepts Gegenprobe (countercheck) and Gegenversuch (counter-trial), which were widely applied, discussed, relied upon, and defended in German-language writings about empirical inquiry. In the decades around 1800, they were common in physiology; medicine; agriculture; chemistry; various technologies, such as printing, metallurgy, and mining; accounting; and legal and political argumentation. The ubiquity of those concepts signals a broad concern with securing empirical findings and empirical knowledge. Gegenproben and Gegenversuche – the terms as well as (...) the practices – are evidence for the close connection among explicitly knowledge-seeking endeavors and crafts and technologies. Physiological experiments, chemical analyses, agricultural or vaccination trials were indebted to applied and practical procedures of making and assaying. What united these different fields was the fact that the problems that had to be solved were very complex yet at the same time of immediate relevance to everyday lives (like diseases or crops) or highly controversial (like vital forces or spontaneous generation). We know that late eighteenth-century and early nineteenth-century practices of inquiry were firmly embedded in applied, technical contexts; this essay shows that methodological notions were anchored in applied, technical contexts as well. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through (...) the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

The nature of concepts is a subject of study of various disciplines, from philosophy to cognitive sciences, leading to fragmented understandings and conceptual dissociations. Legal concepts have been studied in an interdisciplinary manner across all these disciplines, suffering from similar fragmentation. Recently, the interdisciplinary crossroads between law and cognitive sciences have brought forward the notion of legal concepts as mental representations. However, this approach largely overlooks the systemic, historical, and societal elements essential to comprehending legal concepts. The (...) aim of this paper is to advocate for the Social Representations Theory as a useful framework that bridges cognitive and socio-cultural dimensions of meaning and can provide a holistic approach to understanding legal concepts. This paper unfolds in three sections. The first section contextualizes the social representations approach within the law and language framework, emphasizing the societal influences on thought and meaning. The second section explains the notion of social representations, building upon Serge Moscovici’s definitions and Ivana Marková’s arguments for the necessity of this approach to accommodate the social dimension of meaning. The third and last section underscores the claim that legal concepts are, in essence, social representations, advocating for the usefulness of this approach in legal scholarship, both paradigmatically and methodologically, consequently arguing for an inclusion for a stronger focus on the social dimension of legal meaning. (shrink)

Resumen: En este artículo se propone una metodología para los estudios jurídicos basada en lo que se ha venido a llamar hermenéutica de lo no-dicho. A partir del pensamiento de Michel Foucault y Giorgio Agamben en torno a la arqueología y la genealogía, se plantea cómo enfocar el estudio del derecho en lo no-dicho como aquel saber sometido y no tematizado. Se trata de acudir a la intersección de saberes eruditos y saberes descalificados por la jerarquía epistémica con la intención (...) no tanto de explicar como de implicar. Abstract: This paper proposes a methodology for legal studies based on what has been called the hermeneutics of the not-said. Based on the thoughts of Michel Foucault and Giorgio Agamben on archeology and genealogy, this research approaches the study of law on what is not-said as subject and non-thematized knowledge. In brief, it is an attempt to consider the intersection between erudite and disqualified knowledge, in order to imply the crossroad rather than explain it. (shrink)

Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule (...) formalism,” the view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges. (shrink)

The aim of the article is to formulate a proposal for the conceptual analysis of the notion of predictability of law, in order to make clear its theoretical and practical implications. To achieve this goal, I will explain the theoretical (what conceptual implications it has) and practical (what decisions it requires us to make) commitments that this conceptualization requires. Specifically, I analyze the commitments to the types of receivers of predictions and issuers of predictions; then I identify what kinds of (...) relationship can be assumed between the predictability of law and its effectiveness; next I indicate what the use of predictions as a means of assessing the degree of satisfaction of legal certainty commits us. Finally I indicate what commitments must be made in adopting a methodology for making predictions. (shrink)

Referring to foreign legal systems for the sake of producing a convincing judicial argument has been a custom in judicial decision-making for more than a century. However, a generally accepted theoretical framework for this kind of reasoning is yet to be established. The article suggests that such a framework must answer at least the following three fundamental questions: first, what is the normative relationship, as a matter of principle, between domestic and foreign law?; second, what is the primary motive (...) and functioning of comparative legal reasoning?; and third, what methodological approach enables such reasoning to work in practice? Drawing in particular on linguistic philosophy, as well as recent work on the theory of argumentation, the article outlines a theoretical framework that addresses these questions in order to understand, evaluate and rationalise the use of comparative arguments in legal practice. (shrink)