Legal reasoning seeks to ensure that the individual standard of the case is based on a source of law and that its justification is offered to the legal community observing a particular form of speech. A valid legal justification provides for a particular type of treatment that protects citizens from unfair legal actions. Legal theorists disagree on the correct characterization of many aspects of the schematic representation of the interpretive process referred to in subsections 2.2 and 2.3. Some of these disagreements are discussed here to give a more complete picture of some of the relevant issues and views on this topic. The presentation of the role of interpretation in the explanatory memorandum therefore differs on the following points (Note. Some of the following points overlap to some extent): In the text, we mention only the simplest form of legal syllogism theory, but not all authors formulate the legal syllogism in the same way, nor do they attribute the same type of content to the premises or conclusion. Another formulation of the legal syllogism can be found in H. Kelsen, Essays in legal and moral philosophy (D. Reidel Publishing Company 1973), p.

245. Unlike MacCormick, Kelsen presents the main premise and conclusion as statements about the validity of a legal norm (not a standard). The validity of the judicial decision (individual norm) is assumed as a premise, not as a logical derivation. ↩ What is desirable on the side of contestability can be worrying: if the judge can interpret the beliefs he attributes to the legal system, the closure is arbitrary and left to his whims. The traditional reports and criteria given above are based on the letter/spirit dichotomy. Such a dichotomy overlooks the fact that the reading process involves deciphering a text in the interpretation of the legal system. This means that reading is not a neutral activity that allows us to read only the letter without necessarily reaching an interpretive spirit (as the traditional letter/spirit binomial assumes). Moreover, the second formulation of the area of legal reasoning mentioned above, namely that legal reasoning is concerned with how judges should decide cases, is also ambiguous in some approaches to legal theory.

Indeed, the answer to the question «How should a court decide a case based on the existing law that applies to it?» (i.e. The legal reasoning referred to in point (b) and the answer to the question «How should a court decide a case, overall?» may sometimes differ. A particular case could be the kind of situation that might arise for a judge in a «wrong» legal system where the law on an issue is so morally despicable that, on balance, the judge should not decide the case in accordance with the law, but should refuse to apply the law (see Hart, 1958; Hart, 1994, Chapter 9, Section 3; Raz 1994, Essay 14. This possibility is also mentioned by Dworkin 1986, chapter 3, 101-108, in the discussion of whether the Nazis were right). In criminal law, such reasoning would be particularly problematic, as several courts prohibit the analogous application of criminal provisions – which applies mutatis mutandis to aggravating circumstances. ↩ Once an opinion has been taken on the nature of the consistency relationship in the case law, many other questions arise as to the role that consistency considerations should play in legal argumentation. An important question is the extent to which consistency should be emphasized when justifying a judicial decision. Is a certain degree of consistency with existing law a necessary condition for a justified judicial decision? Is this both a necessary and sufficient requirement for a presentation of the role of consistency in jurisprudence to give us a full explanation of how judges should decide cases under the act? Or is consistency more likely to be seen as a desirable feature of judicial decision-making, but one that may, in some circumstances, be superseded by other considerations? Similarly, legal reasoning and interpretation are constitutive practices that we can only separate by rationalizing them as intellectual operations, as we have done in this post. We did this to discover their different sketches and the expectations to which each of them responds, and to confirm their unified legal phenomenology. Interpretive communities share beliefs rather than interpretations, and their recognition as such makes them part of the interpretive culture of a legal system.53 When a decision is framed according to a set of beliefs shared by a community based on the rule of law, arbitrariness becomes a pipe dream – or an arbitrary decision would not be considered a recognizable judicial decision because of its strangeness. for a known interpretive community. be valid.

After a brief discussion of the term «legal reasoning,» the entry deals first with interpretation and then with consistency, discussing the different views on these terms and their legal relevance. Throughout the discussion, the discussion focuses on the role that interpretation and consistency play in legal reasoning, and why these concepts are considered by some to be characteristic of the argument about law. Continental jurisprudence has developed criteria for achieving what it understood to be the purpose of interpretation – either the intention of the legislature or the meaning of the law – namely grammatical, historical, systematic and teleological criteria.23 On the explanation of Dworkin`s jurisprudence – at least if this presentation is understood as a calculation of consistency (see section 3.1 above) – we find another type of answer to the question, Why consistency plays a special role. in the legal justification. As mentioned in subsection 2.4, when deciding cases, judges should try to interpret the law constructively, that is: impose a purpose on it in order to make it the best possible example of the form or genre to which it belongs (see Dworkin 1986, chapters 2 & 3, and the entry on interpretivist legal theories). For Dworkin, the form or genre of the law must provide a convincing justification for the exercise of state coercion (cf. Dworkin 1986, passim;), and since he regards judges and legal theorists as constructive (cf. Dworkin 1986, p. 90), Dworkin further argues that any adequate jurisprudential account of the law must explain how the what it takes to be law, a general justification for the exercise of coercive state power (for a discussion of this point, see Dickson 2001, chapters 5 and 6, Dickson 2004 and cf.

the entry on interpretivist legal theories). In Law`s Empire, Dworkin argues that such a justification can be best provided when the law is seen as an organized and coherent voice of what he calls a «community of principles,» that is, a community whose members accept that their destinies are bound by the fact that their rights and duties are determined by common principles. For Dworkin, therefore, we must interpret law as coherent, in the sense that we speak with one voice, because we thus understand law as the voice of a community of principles and are therefore able to provide a general justification for the exercise of state coercion (see Dworkin 1986). The constitutional balance between legislation, administration and jurisprudence is reflected in court proceedings as well as in the written judicial justification for closure. Legal reasoning ensures that the court`s decision is a legitimate product of the legal system.