The article addresses three theses on judgment in general and legal judgment in particular, starting from Peirce’s and Dewey’s claims about them. The first thesis, ontological, concerns the content of an act of judgment and says that judgment is about an object instantiating a property (not about a property instantiated by an object). The second, alethic, concerns the relation between judgment and truth and says that judgment is the attribution of a truth value to a proposition. The third, genetic, deals (...) with the moments of judgment claiming it is a process susceptible of being articulated in such moments. Its fundamental moments are 1) hypothesis, 2) inquiry, 3) result. The article claims that the three theses interconnect and hold for both judgment in general and legal judgment, given that the latter is a model of the former; so a complex conception of judgment is articulated, discussing also its relations with assertion and inference. (shrink)

This paper presents in outline Luigi Ferrajoli’s axiomatic and general theory of law, as developed in his lifelong work Principia Iuris . The first section focuses on the three main aspects of the theory: the methodological, the theoretical and the pragmatic, which respectively represent the theory’s syntax, semantics and its pragmatics. Ferrajoli identifies three deontic gaps of norms: firstly, the one between their validity and efficacy ; secondly, the one between their justice and validity ; and finally, and most importantly, (...) the one between validity and existence (i.e. normative force). The presence of such gaps is, according to Ferrajoli, the extraordinary innovation that entrenched constitutions have brought into modern legal systems, by establishing norms that are superior to statutes and case law. In this sense, all normative phenomena (except for the constitution itself) can be conceived both as norms and as facts. In the second section the role of juridical science is briefly discussed. (shrink)

The Constitution is considered as an informal axiomatic system. The strategy proposed by the authors rests on the following propositions: axioms are considered as contextual definitions of those concepts by means of which they are formulated; and the main requirement for this type of system is internal consistency. The first proposition is necessary for considering the Constitution as an informal axiomatic system, while the second is sufficient, because the approach proposed, apart from consistency, must certainly consider the requirements for formal (...) axiomatic systems, such as independence and completeness. The authors argue that the Constitution can be compared to axiomatic constructions in modern science in the sense that is given in the research on the logic and methodology of deductive sciences. This analogy is appropriate to the extent to which constitutional provisions are interpreted as the basic elements of the legal system, just as in the formal sciences axioms are regarded as basic principles that define the main features of the formal system. This means that the Constitution itself is seen as coherent, consistent discourse that contextually defines the meaning of the basic terms of the legal system. (shrink)

After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).

This paper identifies a type of multi-source (case-based) reasoning and differentiates it from other types of analogical reasoning. Work in cognitive science on mental space mapping or conceptual blending is used to better understand this type of reasoning. The type of argument featured herein will be shown to be a kind of source-blended argument. While it possesses some similarities to traditionally conceived analogical arguments, there are important differences as well. The triple contract (a key development in the usury debates of (...) the fifteenth and sixteenth centuries) will be shown to make use of source-blended arguments. (shrink)

The A Simili Argument draws the conclusion that a target case has a normative property Q since it shares a relevant property P with a source case. It can be seen as a complex inference constituted by three inferential steps: An abduction of the relevant property P, an induction of the class having that property, and a deduction of the target's having property Q. A major problem of this argument is the characterization of the property relevance. The standard answer refers (...) to the notion of ratio: It is the ratio that fixes what is relevant for what. But the determination of the ratio is often a difficult and controversial task. This issue is considered here from an inferentialist point of view, claiming that the ratio and relevance are determined by the normative statuses reciprocally attributed by the speakers in the context of legal argumentation. (shrink)

The A Simili Argument draws the conclusion that a target case has a normative property Q since it shares a relevant property P with a source case. It can be seen as a complex inference constituted by three inferential steps: An abduction of the relevant property P , an induction of the class having that property, and a deduction of the target's having property Q . A major problem of this argument is the characterization of the property relevance. The standard (...) answer refers to the notion of ratio: It is the ratio that fixes what is relevant for what. But the determination of the ratio is often a difficult and controversial task. This issue is considered here from an inferentialist point of view, claiming that the ratio and relevance are determined by the normative statuses reciprocally attributed by the speakers in the context of legal argumentation. (shrink)

The theories of information ethics articulated by Luciano Floridi and his collaborators have clear implications for law. Information law, including the law of privacy and of intellectual property, is especially likely to benefit from a coherent and comprehensive theory of information ethics. This article illustrates how information ethics might apply to legal doctrine, by examining legal questions related to the ownership and control of the personal data representations, including photographs, game avatars, and consumer profiles, that have become ubiquitous with the (...) proliferation of information and communication technologies. Recent controversy over the control of player performance statistics in “fantasy” sports leagues provides a limiting case for the analysis. Such data representations will in many instances constitute the kind of personal data that information ethics asserts constitutes an information entity. Legal doctrine in some instances proves sympathetic to such an assertion, but remains largely inchoate as to which data might constitute a given information entity in a given instance. Neither is information ethics, in its current state of development, entirely helpful in answering this critical question. While information ethics holds some promise to bring coherence to this area of the law, further work articulating a richer theory of information ethics will be necessary before it can do so. (shrink)

Prof. Haack answers a series of questions on pragmatism, beginning with the origins of this tradition in the work of Peirce and James, its evolution in the work of Dewey and Mead, and its influence beyond the United States in, for example, the Italian pragmatists and the radical British pragmatist F. C. S. Schiller. Classical pragmatism, she observes, is a rich and varied tradition from which there is still much to be learned—as the many ways her own work in logic, (...) epistemology, metaphysics, philosophy of science, and philosophy of law has been informed by the old pragmatists testify. Of late, however, this tradition has been misunderstood, impoverished, and vulgarized by self-styled neo-pragmatists; here, Haack turns her attention specifically to the conception of pragmatism as essentially a political philosophy, and the near-vacuous equation of pragmatism with “problem-solving.”. (shrink)