Steven Burton's AN INTRODUCTION TO LAW AND LEGAL REASONING, Second Edition continues to be an ideal learning tool for first-year law students in a variety of introductory courses including orientation programs, legal reasoning, lawyering skills, or first-year substantive courses. Written specifically for beginning law students, this concise paperback helps students gain an understanding of law and legal reasoning by emphasizing how they can use cases, rules, precedent, holding, and other elementary legal concepts to solve legal problems. Especially easy to use, (...) The Second Edition: offers concise, lucid text gives more attention to competing, contemporary modes of analysis including Critical Legal Studies and philosophical critiques clearly delineates the structure of law as precedents, rules, principles, and policies introduces many new examples coherently organized in nine chapters, INTRODUCTION TO LAW AND LEGAL REASONING covers cases and rules, analogical and deductive legal reasoning, legal reasons and conventions, purposes, judges' and lawyers' perspectives, and legitimacy. short and affordable, this book is a good fit for orientation programs, introductory courses on legal reasoning or legal method, lawyering skills courses, or as a supplementary text in any first-year substantive course. (shrink)

While the formal treatment of arguments in the late medieval modi arguendi owes much to dialectic, this does not remove the substance and function of the argumentative modes discussed from the realm of rhetoric. These works, designed to teach law students skills in legal argumentation, remain importantly focused on persuasive features of argumentation which have traditionally been strongly associated with a rhetorical approach, particularly in efforts to differentiate from it dialectic as a more strictly scientific and logical form of reasoning. (...) This also sheds some light on the relative roles logic and rhetoric play in the legal discourse of our own time. In their approach to persuasive legal discourse, the modi arguendi stand between the argumentative rhetorics of Antiquity and the rhetoricized dialectics of the Renaissance, and by linking the minute technicalities of professionalized law with broad general considerations of justice, utility, nature, and emotion, they mediate between the modem trend towards atomized field-specific rhetorics and the classical idea of a unified civic rhetoric. (shrink)

This book comprises a series of studies devoted to an analytic examination of reasoning in the field of conduct. The first is analysis of the idea of justice undertaken in a spirit of positivism; the series continues in a different vein necessitated by compelling obligation the author found himself under to work out a logic of value judgments. This logic is in fact the Rhetoric and Topics of antiquity: the author's "Traité de l' Argumentation gave this new life, and the (...) present work demonstrates its philosophical importance. (shrink)

"In 'Justice', the result of many years' thoughtful exploration of that subject, Professor Perelman explains the conceptual origins of justice (both social and historical) and discusses the relationships between justice and justification, between justice and reason, and between reason and values. He considers the matter of a core of meaning, common to all, concerning the concept of justice, and raises essential questions such as why do people disagree about the problems of justice and whether a difference exists between a political (...) conception and a philosophical conception of justice."--Cover. (shrink)

This collection contains studies on justice, juridical reasoning and argumenta tion which contributed to my ideas on the new rhetoric. My reflections on justice, from 1944 to the present day, have given rise to various studies. The ftrst of these was published in English as The Idea of Justice and the Problem of Argument. The others, of which several are out of print or have never previously been published, are reunited in the present volume. As justice is, for me, the (...) prime example of a "confused notion", of a notion which, like many philosophical concepts, cannot be reduced to clarity without being distorted, one cannot treat it without recourse to the methods of reasoning analyzed by the new rhetoric. In actuality, these methods have long been put into practice by jurists. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof. It is important, then, that philosophers should not limit their methodologi cal studies to mathematics and the natural sciences. They must not neglect law in the search for practical reason. I hope that these essays lead to be a better understanding of how law can enrich philosophical thought. CH. P. (shrink)

The New Rhetoric is founded on the idea that since “argumentation aims at securing the adherence of those to whom it is addressed, it is, in its entirety, relative to the audience to be influenced,” says Chaïm Perelman and L. Olbrechts-Tyteca, and they rely, in particular, for their theory of argumentation on the twin concepts of universal and particular audiences: while every argument is directed to a specific individual or group, the orator decides what information and what approaches will achieve (...) the greatest adherence according to an ideal audience. This ideal, Perelman explains, can be embodied, for example, "in God, in all reasonable and competent men, in the man deliberating or in an elite.” Like particular audiences, then, the universal audience is never fixed or absolute but depends on the orator, the content and goals of the argument, and the particular audience to whom the argument is addressed. These considerations determine what information constitutes "facts" and "reasonableness" and thus help to determine the universal audience that, in turn, shapes the orator's approach. /// The adherence of an audience is also determined by the orator's use of values, a further key concept of the New Rhetoric. Perelman's treatment of value and his view of epideictic rhetoric sets his approach apart from that of the ancients and of Aristotle in particular. Aristotle's division of rhetoric into three genres–forensic, deliberative, and epideictic–is largely motivated by the judgments required for each: forensic or legal arguments require verdicts on past action, deliberative or political rhetoric seeks judgment on future action, and epideictic or ceremonial rhetoric concerns values associated with praise or blame and seeks no specific decisions. For Aristotle, the epideictic genre was of limited importance in the civic realm since it did not concern facts or policies. Perelman, in contrast, believes not only that epideictic rhetoric warrants more attention, but that the values normally limited to that genre are in fact central to all argumentation. "Epideictic oratory," Perelman argues, "has significant and important argumentation for strengthening the disposition toward action by increasing adherence to the values it lauds.” These values are central to the persuasiveness of arguments in all rhetorical genres since the orator always attempts to "establish a sense of communion centered around particular values recognized by the audience.”. (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.

a This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.a (TM) These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. (...) In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the booka (TM)s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (a defeasiblea (TM)) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail. (shrink)

A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage in a (...) continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically. (shrink)

Originally published in 1968. This is a critical study of the concept of 'rule' featuring in law, ethics and much philosophical analysis which the author uses to investigate the concept of 'rationality'. The author indicates in what manner the modes of reasoning involved in reliance upon rules are unique and in what fashion they provide an alternative both to the modes of logico-mathematical reasoning and to the modes of scientific reasoning. This prepares the groundwork for a methodology meeting the requirements (...) of the fields using rules such as law and ethics which could be significant for communications theory and the use of computers in normative fields. Other substantive issues related to the mainstream of legal philosophy are discussed - theories of interpretation, the notion of purpose and the requirements of principled decision-making. The book utilizes examples drawn from English and American legal decisions to suggest how the positions of legal positivism and of natural law are equally artificial and misleading. (shrink)

For more than six decades, and for thousands of students, Introduction to Logic has been the gold standard in introductory logic texts. In this 15th Edition, Carl Cohen and Victor Rodych update Irving M. Copi's classic text, improving on its many strengths and introducing new and helpful material that will greatly assist both students and instructors.

This essay discusses the most recent manifestations of the debate of the law and literature movement. The essay traces the evolution of the Law and Literature schools and identifies some of their adherents and conclusions, shows how these schools have influenced the conceptual development and teaching of American law, presents connections between the Critical Legal Studies and Law and Economics movements in the U.S., and raises questions about the Law and Literature movement.

Alternative dispute resolution occurs outside the litigation process. The alternative dispute resolution (ADR) movement in North America has emphasized viable alternatives to the litigation framework, such as arbitration, mediation, med-arb, multi-party facilitation, non-legal negotiation, mini-trials, administrative hearings, private judging (“renta-judge”), fact finding, and moderated settlement conferences. This essay addresses argument in the dominant alternatives: arbitration, mediation, and multi-party facilitation. Prior to comparing argument in these ADR systems, each will be briefly described.

New to English law? Need to know how rules are made, interpreted and applied? This popular and well-established textbook will show you how. It simplifies legal method by combining examples with an account of rules in general: the who, what, why and how of interpretation. Starting with standpoint and context, it identifies factors that give rise to doubts about the interpretation of a rule and recommends a systematic approach to analysing those factors. Questions and exercises integrated in the text and (...) on the accompanying website will help you to develop skills in reading, interpreting and arguing about legal and other rules. The text is fully updated on developments in the legislative process and the judicial interpretation of statutes and precedent. It includes a new chapter on 'The European Dimension' reflecting the changes brought about by the Human Rights Act 1998. (shrink)

Legal theory and practice, particularly on the exchange of pleadings, are referred to as a means of examining current thinking in pragmatics on relevance. The rules of pleadings suggest that the concept of relevance as used in pragmatics is emptied of any meaning and that theories of argumentation have not sufficiently taken into account the preliminary construction which issues to be argued about require.

In this book, one of our country's most distinguished scholar-judges shares with us his vision of the law.

Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...) conclusion only depends on the premises, and is independent of the argument that leads to the conclusion.This paper opposes the logical approach, and defends a procedural approach to legal reasoning. Legal conclusions are not true or false independent of the reasoning process that ended in these conclusions. In critical cases this reasoning process consists of an adversarial procedure in which several parties are involved. The course of the argument determines whether the conclusion is true or false. The phenomenon of hard cases is used to demonstrate this essential procedural nature of legal reasoning. (shrink)

The main idea or the concept of coherence can be expressed in the following way: The more the statements belonging to a given theory approximate a perfect supportive structure, the more coherent the theory. The degree of perfection of a supportive structure depends on the degree to which the following criteria of coherence are fulfilled: (1) the greatest possible number of supported statements belonging to the theory in question; (2) the greatest possible length of chains of reasons belonging to it; (...) (3) the greatest possible number of strongly supported statements belonging to the theory; (4) the greatest possible number of connections between various supportive chains belonging to the theory; (5) the greatest possible number of preference relations between various principles belonging to it; (6) the greatest possible number and complexity of reciprocal supportive relations between various statements belonging to the theory; (7) the greatest possible number of universal statements belonging to the theory; the greatest possible number of general concepts belonging to it; the highest possible degree of generality of concepts implemented within it; the greatest possible number of resemblances between concepts used within it; (8) the greatest possible number of conceptual cross‐connections between various theories; (9) the greatest possible number of cases covered by the theory; and (10) the greatest possible number of fields of life covered by the theory. (shrink)

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the role of legal reasoning in (...) the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory. (shrink)

The concepts of issue and status are more different than is currently assumed. Apart from differences between the classifications of statements they are related to, there are differences between their definitions. The respective functions of pleadings and of inventio account for most of these differences.

Cet ouvrage est une réédition numérique d’un livre paru au XXe siècle, désormais indisponible dans son format d’origine.

§ 1. Begriff der juristischen Logik 1. Wenn im folgenden von juristischer Logik und einigen ihrer Probleme die Rede sein soll, so bedarf es zunächst einer Angabe dessen, was im Zu sammenhang dieser Untersuchungen unter Logik verstanden wird. Der Aus druck Logik wird im Rahmen der Philosophie sowohl als auch innerhalb der Einzelwissenschaften in mehreren, oftmals erheblich voneinander abweichen den Bedeutungen verwandt. Der Sprachgebrauch ist sogar derart schillernd, daß einer scharfen Definition, sofern sie sich an den üblichen Sprachgebrauch anschließen soll, (...) nicht unerhebliche Schwierigkeiten im Wege stehen, denn bekanntlich spricht man von materialer, formaler, transzendentaler, regio naler, reiner, angewandter, theoretischer, praktischer, hermeneutischer, rea ler, natürlicher, klassischer und moderner Logik, um nur einige der zahl 1 reichen Wortverknüpfungen herauszugreifen • Für die hier anzustellenden Überlegungen vereinfacht sich jedoch die Frage nach einer passenden Definition. Während nämlich die Ansichten darüber, was man etwa unter materialer oder transzendentaler Logik zu verstehen habe, weitgehend divergieren, gilt für den Begriff der formalen Logik cum grano salis das Gegenteil. (shrink)

This book presents the New Theory of Argumentation, popularly known as the New Rhetoric, as an innovative theoretical and methodological system which will become increasingly important. Two factors determine the importance of this philosophy: (1) The collapse of all modern ideologies, many sociopolitical systems and their associated philosophies, whether of the right or the left, means that the era of the quick, dogmatic perception of how to force people to feel free and happy is over. (2) New forms and institutions (...) of social and economic life must be found among the wreckage. The solutions sought must work best for the greatest number of people and must be flexible enough to allow the reinterpretation of all our determinations, from the very beginning. The New Rhetoric rejects all absolutist and dogmatic ideas. But neither does it support absolute relativism. It constitutes a method for the endless search for truthful explanations and for enlightened practical activity. Truth is only the process of approaching it. While critical of formal logic, the New Rhetoric develops the concepts of `other', `experimental', `flexible', and `logic of good sense'. The introduction and elaboration of the concept of `reasonableness' is presented as a milestone in the evolution of scientific methodology. The New Rhetoric has overcome the traditional contradictions between logic, rationalism and dialectic and has laid new foundations for a modern theory of morality, law, legal interpretation, and human rights. This book discusses such problems as: new moral notions, the new dilemma of Cain, the spurious notions of 'centrism', Antigone's new arguments, 'argumentation is not bargaining', new foundations of tolerance and justice. It ends with a section on 'Resolutions for the New Century', written in the spirit of traditional enlightenment, rule of reason and humanism, but which goes beyond them. (shrink)