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Epistemology and Method in Law

Author : Geoffrey Samuel

Publisher : Routledge

Page : 263 pages

File Size : 47,79 MB

Release : 2016-12-05

Category : Philosophy

ISBN : 1351939343

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Book Description

This book seeks to question the widely held assumption in Europe that to have knowledge of law is simply to have knowledge of rules. There is a knowledge dimension beyond the symbolic which reaches right into the way facts are perceived, constructed and deconstructed. In support of this thesis the book examines, generally, the question of what it is to have knowledge of law; and this examination embraces not just the conceptual foundations, methods, taxonomy and theories used by jurists. It also examines the epistemological schemes used by social scientists in general in order to show that such schemes are closely related to the schemes of intelligibility used by lawyers and judges.



Rule of Law and Legal Epistemology

Author : Eric Tjong Tjin Tai

Publisher :

Page : 10 pages

File Size : 31,20 MB

Release : 2017

Category :

ISBN :

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Book Description

Against the positivistic conception of law, restricted to sources of law, it is argued that doctrine and other materials are also relevant. Legal argumentation is based on legal knowledge, which is constructed not only with legal authorities but also with epistemic authorities, in line with the epistemological recognition of testimony as source of knowledge. This approach can accommodate the authority of non-binding texts, thereby contributing to a legal method for a multi-level legal order.



Truth, Error, and Criminal Law

Author : Larry Laudan

Publisher : Cambridge University Press

Page : 235 pages

File Size : 18,94 MB

Release : 2006-06-05

Category : Philosophy

ISBN : 113945708X

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Book Description

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial.



Objectivity and the Rule of Law

Author : Matthew Kramer

Publisher : Cambridge University Press

Page : 233 pages

File Size : 41,38 MB

Release : 2007-06-11

Category : Philosophy

ISBN : 1139463969

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Book Description

What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry. As Kramer shows, objectivity and the rule of law are complicated phenomena, each comprising a number of distinct though overlapping dimensions. Although the connections between objectivity and the rule of law are intimate, they are also densely multi-faceted.



Epistemology and Methodology of Comparative Law

Author : Mark Van Hoecke

Publisher : Bloomsbury Publishing

Page : 408 pages

File Size : 16,5 MB

Release : 2004-06-01

Category : Law

ISBN : 1847311245

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Book Description

Whereas many modern works on comparative law focus on various aspects of legal doctrine the aim of this book is of a more theoretical kind - to reflect on comparative law as a scholarly discipline, in particular at its epistemology and methodology. Thus, among its contents the reader will find: a lively discussion of the kind of 'knowledge' that is, or could be, derived from comparative law; an analysis of 'legal families' which asks whether we need to distinguish different 'legal families' according to areas of law; essays which ask what is the appropriate level for research to be conducted - the technical 'surface level', a 'deep level' of ideology and legal practice, or an 'intermediate level' of other elements of legal culture, such as the socio-economic and historical background of law. One part of the book is devoted to questioning the identification and demarcation of a 'legal system' (and the clash between 'legal monism' and 'legal pluralism') and the definition of the European legal orders, sub-State legal orders, and what is left of traditional sovereign State legal systems; while a final part explores the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts and/or a legal meta-language, which would be developed and used within emerging European legal doctrine. All the papers in this collection share the common goal of seeking answers to fundamental, scientific problems of comparative research that are too often neglected in comparative scholarship.



Rule of Law, Justice, and Interpretation

Author : Luc B. Tremblay

Publisher : McGill-Queen's Press - MQUP

Page : 360 pages

File Size : 31,29 MB

Release : 1997-10-24

Category : Law

ISBN : 0773566910

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Book Description

Tremblay's theory of the rule of law involves a set of practical principles that constitute the ideal type of a conception of law that is both constitutive and regulative of legal discourse and practice. Tremblay examines two competing ideal types, the "rule of law as certainty" and the "rule of law as justice." The former, a standard doctrine within contemporary legal, social, and political theory, is shown to be incoherent. Thus the "rule of law as justice," he shows, provides the best basis for understanding legal discourse in general and Canadian constitutional law in particular. Tremblay offers a coherent reconstruction of Canadian law from fundamental principles of the rule of law as justice and tests the theory through applications to key judicial decisions that have proven resistant to positivist interpretation. The Rule of Law, Justice, and Interpretation is both a stimulating work of contemporary legal theory and an innovative challenge to the traditions of Canadian constitutional law. Tremblay examines fundamental issues of legal epistemology and ontology and brings rigorous analytical jurisprudence to bear on interpretations and applications specific to Canadian constitutional law. Given the important implications of his theory for statutory and constitutional interpretation, especially with respect to the Canadian Charter of Rights and Freedoms and the potential crisis involving provincial rights of secession and partition, this book will be central to the practice of law in Canada.



Rhetoric and The Rule of Law

Author : Neil MacCormick

Publisher : OUP Oxford

Page : 304 pages

File Size : 18,84 MB

Release : 2005-07-28

Category : Law

ISBN : 0191018783

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Book Description

Is legal reasoning rationally persuasive, working within a discernible structure and using recognisable kinds of arguments? Does it belong to rhetoric in this sense, or to the domain of the merely 'rhetorical' in an adversative sense? Is there any reasonable certainty about legal outcomes in dispute-situations? If not, what becomes of the Rule of Law? Neil MacCormick's book tackles these questions in establishing an overall theory of legal reasoning which shows the essential part 'legal syllogism' plays in reasoning aimed at the application of law, while acknowledging that simple deductive reasoning, though always necessary, is very rarely sufficient to justify a decision. There are always problems of relevancy, classification or interpretation in relation to both facts and law. In justifying conclusions about such problems, reasoning has to be universalistic and yet fully sensitive to the particulars of specific cases. How is this possible? Is legal justification at this level consequentialist in character or principled and right-based? Both normative coherence and narrative coherence have a part to play in justification, and in accounting for the validity of arguments by analogy. Looking at such long-discussed subjects as precedent and analogy and the interpretative character of the reasoning involved, Neil MacCormick expands upon his celebrated Legal Reasoning and Legal Theory (OUP 1978 and 1994) and restates his 'institutional theory of law'.



Legal Knowledge and Analogy

Author : Patrick Nerhot

Publisher : Springer

Page : 0 pages

File Size : 43,91 MB

Release : 2012-10-31

Category : Philosophy

ISBN : 9789401054386

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Book Description

3 of law as an object that has always already been there, systematic and com plete. Quite the contrary. Some, indeed practically all of us, reject this sort of epistemology of law, and where the hypothesis of the coherence of the legal universe is put forward, this is in order to define it in very noticeably different terms from those traditionally used in legal scholarly accounts. If this referent, the law presented as a full discourses, runs through all of the contributions, this is because reasoning by analogy has to be found its specific place within this legal culture. It is the place to locate the problem of "lacunae" in law, which at bottom allows our various contributions to be classified. With Zaccaria and Maris, the question of lacunae is accepted as such (this is, we might say, the "traditionalist" aspect of these two articles, which is counterbalanced by - keeping to the same terminology - "modernist" emphases, sometimes Dworkinian in nature), and becomes the backdrop for considerations of purely hermeneutic type, in Zaccaria, ex tended in Maris to the field of ethics. The papers from Lenoble and Jackson, the former philosophical and the latter semiological, take as their main tar get this legal knowledge where the theory of lacunae finds its place.



The Philosophy of Law and Legal Science

Author : V.P. Salnikov

Publisher : Cambridge Scholars Publishing

Page : 280 pages

File Size : 19,93 MB

Release : 2018-10-01

Category : Law

ISBN : 152751787X

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Book Description

The book explores a variety of problems connected to philosophy and philosophy of law. It discusses the problem of monism-pluralism in philosophy and philosophy of law, criticizes philosophy of post-positivism and postmodernism, and investigates dialectics as a universal global methodological basis of scientific cognition and philosophy of law. The volume also pays particular attention to contemporary legal education, offering potential solutions to problems in this field. The book is the result of a range of sociological studies conducted both in Russia and abroad concerning the legal process and legal consciousness.



The Rule of Law History, Theory and Criticism

Author : Pietro Costa

Publisher : Springer Science & Business Media

Page : 699 pages

File Size : 40,93 MB

Release : 2007-05-06

Category : Law

ISBN : 1402057458

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Book Description

Authors Costa and Zolo share the conviction that a proper understanding of the rule of law today requires reference to a global problematic horizon. This book offers some relevant guides for orienting the reader through a political and legal debate where the rule of law (and the doctrine of human rights) is a concept both controversial and significant at the national and international levels.