Legal Language LEGAL REASONING

The concept of reasoning Legal reasoning as public reasoning  the core of reasoning is argumentation. (publicly justified arguments) Kinds of reasoning: Theoretical – what is?‏ Practical – what should be? ‏

Legal reason – does it exist? 'God had endowed His Majesty with excellent science, and great endowments of nature ...' still 'his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an art which requires long study and experience, before that a man can attain to the cognisance of it.' Sir Edward Coke to King James I, in 1607 The first thing we do, let's kill all the lawyers. W. Shakespeare, Henry The Sixth, Part 2, about 1590

Legal reasoning Criteria for distinguishing legal reasoning kind of arguments used exercised by lawyers constrained by law Social practicies that apply legal reasoning: dogmatics (legal science)‏ law-making law-applying by courts law-applying by administrative agencies alternative dispute resolving private contracts and legal advising

Legal reasoning Questions of legal reasoning questiones iuris questiones facti Da mihi factum, dabo tibi ius Questiones iuris: 1. validity questions 2. interpretation questions

Legal reasoning Types of arguments used: 1. empirical arguments 2. general practical reasoning 3. rules of interpretation 4. dogmatic arguments 5. use of precedents 6. special legal argumentative schemes (topics)‏

Legal interpretation A Part of legal reasoning, dedicated to deciding the meaninig of the legal text. Statutory interpretation – precedents’ interpretation

Constructive vs. Reconstructive Discovering or creating the law? Necessarily reconstructive (otherwise, law-making): formalism Necessarily constructive : contextualism, constructivism Moderate view Limits of interpretation: legal text intention of a lawgiver rules of interpretation practice (former decisions, routine)‏ extra-legal factors (justice, economical effectiveness, political goals)‏

Context of reasoning In concreto judicial decisions, administrative decisions. In abstracto legal science, constitutional courts, other authorities.

Methods of interpretation linguistic the linguistic meaning -common rules -typically legal rules non-lingustic functional -axiological context -pragmatical context systemic rule as a part of a system -features of system -principles of system -place of the rule in system

Methods of interpretation Some other kinds of interpretation within this distinction: purposive historical (the will of legislator)‏ constitution friendly

Outcomes of interpretation literal – narrowing – extensive The priority of literal interpretation. Clara non sunt interpretanda Acte clairé & acte éclairé

Literal and extensive interpertation Extensive interpretation is restricted: on exceptions (exceptiones non sunt extendendae)‏ on lex specialis rule on rules limitating fundamental rights in criminal law to disadvantage of the accused in tax law to disadvantage of taxpayer

Rules of linguistic interpretation 'Lege non distinguente' rule What law does not distinguish, one should not distinguish (no exceptions should be made). 'Per non est' rule No piece of legal text may be treated as superfluous

Rules of systemic interpretation Argumentum a rubrica During interpretation, the location of the rule in the external and internal organization of the legal act should be respected. External organization: location in legal system (branch, hierarchical level)‏ Internal organization: order of legal act

Rules of systemic interpretation Legal principles: The rule should be interpreted in accordance with and with respect for legal principles. In case of taking the legal principle into account, one should point specific provision or provisions, from which the principle might be reconstructed.

Rules of functional interpretation Ratio legis The rule should be interpreted in accordance with and with respect for its ratio legis. ratio legis: reasons for creating the rule (its goal or value it serves)‏ Effects of the rule One should take the expected consequences of particular interpretation of the rule into account. Argumentum ad absurdum One may not choose the interpretation that guides to absurd, ridiculous or unacceptable consequences.

Priority of linguistic interpretation The principle of priority of linguistic interpretation limits for systemic and functional interpretation subsidiarity of systemic and functional prima-facie character (defeasible) requirement of justification in the case of exception NOT in the EU!

Where is an author? Communicative rationality of legal text A picture of the law-giver Intention of the law-giver ‘And the God laughed…’