Law as Practical Reason

1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
The State ◽  
Strong Sense ◽  
A Priority ◽  
The Law ◽  
John Finnis ◽  
Vast Range

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

scholarly journals Law’s Autonomy and Moral Reason

Laws ◽  
2019 ◽  
Vol 8 (1) ◽  
pp. 6
Author(s):  
Jack Clayton Thompson
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Moral Values ◽  
Moral Truth ◽  
Moral Reason ◽  
Moral Principles ◽  
Legal Positivist ◽  
Law And Morality ◽  
The Law ◽  
The Concept Of Law

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient

scholarly journals Action in Law’s Empire: Judging in the Deliberative Mode

2016 ◽  
Vol 29 (2) ◽  
pp. 431-456
Author(s):  
Veronica Rodriguez-Blanco
Keyword(s):  
Classical Tradition ◽  
Practical Reason ◽  
Theoretical Perspective ◽  
The State ◽  
Legal Cases ◽  
The Law ◽  
Do So

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

scholarly journals AKTUALISASI KAIDAH I’TIBA>R AL-MAS}A>LIH} DALAM PEMIKIRAN IZZ AL-DI>N IBN ABD AL-SALA>M)

Mahakim ◽  
2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Huzaimah Al-Anshori
Keyword(s):  
The State ◽  
A Priority ◽  
The Law

Goodness actualization in the thought of imam Izz al-Di>n in triggering the law is not separated from attracting good and avoiding destruction, a concept that indicates the benefit of mankind. This if we actualize it in the comunity, it will appear that goodness is a priority in assisting a law that will be triggered, provided that it does not conflict with the qur’an agreement, analogy, and istidian of the mu’tabar. mas}lah}ah (goodness) in a marriage registration, it has been mentioned in the books of fiqh. The regulation of it is an anticipatory step from the state (goverment) to anticipate the actions that harm in one side, especially women. This is accordance with the rules. Meaning: the actions of leader/goverment for the society are to realize the goodness. Imam izz al-Di>n makes the Holy Qur’an and the hadith as a juridical basis in establishing a law. Besides that, Izz al-Di>n in responding to mas}lah}ah as a reference in law istinbat he rests on istidla>l al-s}ah}i>h} or with the term istidla>l bi al-mas}a>lih}. Keywords: Actualization, Rules, I’tiba>r al-Mas}a>lih}.

Legal reasoning and interpretation

2018 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Deductive Reasoning ◽  
Legal Reasoning ◽  
Reasons For Action ◽  
Legal Decisions ◽  
Course Of Action ◽  
True State ◽  
State Of Affairs ◽  
Special Case

Legal reasoning is the process of devising, reflecting on, or giving reasons for legal acts and decisions or justifications for speculative opinions about the meaning of law and its relevance to action. Many contemporary writers, such as Aulis Aarnio (1987), Robert Alexy (1988), Manuel Atienza (1991) and Aleksander Peczenik (1989), propound the view that legal reasoning is a particular instance of general practical reasoning. They suppose, that is to say, that reasoning can link up with action, guiding one what to do, or showing whether or not there are good reasons for a proposed course of action or for something already done. They suppose also that in law reason links up to legal decisions in this way. Both suppositions are well founded. Law regulates what to do and how to respond to what has been done, doing so within an institutional framework of legislatures, lawcourts, enforcement agencies and the like. It is a feature of legal institutions that they are expected to have, and usually do give, good reasons for what they do, and to do this in public. Legal reasoning is therefore not only a special case of practical reasoning, but a specially public one. Rationality in action has at least two requirements: first, attention to facts, to the true state of affairs in relation to which one acts; second, attention to reasons for action relevant to the facts ascertained. The former aspect concerns reasoning about evidence; the latter, reasoning about rules or norms as reasons for action. In law, such rules and other norms have an institutional character. But how are these applied – by some kind of deductive reasoning, or nondeductively? Behind the rules of the law, there presumably lie other reasons, reasons for having these rules. What kind of reasons are these, developed through what modes of discourse? A discourse of principles, perhaps – but then how do reasons of principle themselves differ from rules? Reasoning from either rules or principles must always involve some process of interpretation, so how does interpretive reasoning enter into the practical reason of law? Answering such questions is the business of a theory of legal reasoning. Legal reasoning is to be understood as a form of practical reasoning concerning these very issues.

scholarly journals Advantages, benefits, services as gift items (novels of the anti-corruption legislation of Ukraine)

2020 ◽  
Vol 10 (19) ◽  
pp. 34-42
Author(s):  
Valeriia Riadinska ◽  
◽  
Liudmyla Rudenko ◽  
Keyword(s):  
Local Government ◽  
Civil Code ◽  
The State ◽  
Legal Analysis ◽  
National Legislation ◽  
The Subject ◽  
Personal Needs ◽  
A Priority ◽  
The Law ◽  
Intangible Benefit

Using of advantages, benefits, services as a gift item in the sphere of anti-corruption legislation of Ukraine investigated in the article. The article investigates the use of advantages, privileges, services as a gift subject in the sphere of anti-corruption legislation of Ukraine. Based on the analysis of the concepts of "advantage", " benefit", "service" it has been determined that there are no definitions of " advantages" or " benefits" in the national legislation. It is justified that advantages, as special privileges that create additional opportunities for individuals who favorably distinguish them from others; providing a person with a priority right to exercise the rights granted to him/her or meeting the needs may be the subject of a gift. Advantages could be provided through guarantees, benefits and the like. Attention is focused on the fact that benefits, such as advantages, supplementary rights, partial exemption from the established rules, duties or facilitating the conditions of their fulfillment provided to certain categories of persons are also considered as gifts. The service, as activity of the executor on rendering (transfer) of material or intangible goods to the consumer determined by the agreement, is carried out on individual order of the consumer for satisfying his personal needs, determined by the Law of Ukraine from 12.05.1991 No. 1023-XII "On protection of consumers' rights" and the Civil Code of Ukraine. It has been summed up, that the subject of a gift may include: advantages – special privileges that create additional opportunities for individuals who favorably distinguish them from others; providing individuals with a priority right to exercise the rights granted to them or meet their needs (advantages may be in the form of guarantees, privileges, etc.); benefits – advantages, additional rights, partial exemption from compliance with the established rules, obligations or facilitation of the conditions of their compliance, provided to certain categories of persons and so on; services – activity of the performing agency to provide (transfer) to the consumer a tangible or intangible benefit defined in the contract, is carried out on individual order of the consumer to meet his personal requirements. Considering that in case special entities receive advantages, benefits and services in connection with carrying out by such subjects of activity connected with performance of functions of the state or local government or from subordinated subjects can be considered as reception of gifts and serve as the basis for bringing such entities to responsibility, the legal analysis of the mentioned above concepts is of defining importance in application of the anticorruption legislation.

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

AGRARIAN REFORM UNDER THE REIGN OF JOKO WIDODO VIEWED FROM BASIC AGRARIAN LAW

2020 ◽  
Vol 10 (1) ◽  
pp. 107-122
Author(s):  
Rizka Refliarny ◽  
Herawan Sauni ◽  
Hamdani Ma'akir
Keyword(s):  
Economic System ◽  
Land Reform ◽  
Agrarian Reform ◽  
The State ◽  
Active Involvement ◽  
Reform Program ◽  
The Will ◽  
A Priority ◽  
Agrarian Law ◽  
Priority Program

This study raises the issue of agrarian reform draft under the reign of President Joko Widodo. Agrarian reform became a priority program in the RPJMN of 2015-2019. Based on this matter, the writer analyzes the concept of agrarian reform during the reign of Joko Widodo terms of BAL. The nature of the study was a normative research with statute approach, which was done in four ways, namely descriptive, comparative, evaluative and argumentative. The results showed that the agrarian reform draft during the reign of Joko Widodo is a concept of land stewardship and land reform. The economic system leads to a form of capitalism. It is necessary to conduct refinement of content and material of BAL implementation in order to achieve the justice and the welfare of the nation and the State. The agrarian reform program should be carried out in stages in order to obtain the desired results. It requires the will, ability and active involvement of all elements of the state.

Urgensi Assesment Report Dalam Omnibus Law RUU Cipta Kerja

ADALAH ◽  
2020 ◽  
Vol 4 (3) ◽  
Author(s):  
Indra Rahmatullah
Keyword(s):  
Academic Research ◽  
Legal Protection ◽  
The State ◽  
The Law ◽  
Scientific Arguments

Abstract:A draft law must be able to answer and solve the main problem of the society so that with the existence of the law the community gets legal protection from the state. However, the draft of Cipta Kerja Law makes an endless controversy. In fact, the draft was allegedly containing some problems since its appearance. Therefore, academic research (Assesment Report) is needed so that the rules in the draft have basic scientific arguments that can be justified. Unfortunately, the draft does not conduct an assesment report to know whether the society need the law and urgent.Keywords: Legal Protection, Controversy and Assesment Report Abstrak:Sebuah rancangan undang-undang harus dapat menjawab dan menyentuh pokok permasalahan masyarakat sehingga dengan adanya undang-undang tersebut masyarakat mendapatkan sebuah perlindungan hukum dari negara. Namun, dalam RUU Cipta Kerja ini justru berakibat pada kontroversi yang tiada hentinya. Bahkan, disinyalir RUU ini mengandung kecacatan sejak awal pembentukannya. Oleh karena itu, dibutuhkan penelitian akademis sehingga aturan-aturan yang ada dalam RUU ini mempunyai basis argumentasi ilmiah yang dapat dipertanggungjawabkan yang salah satunya adalah dengan membuat Laporan Kelayakan. Sayangnya RUU ini belum melakukan laporan kelayakan apakah RUU ini dibutuhkan dan penting di masyarakat.Katakunci: Perlindungan Hukum, Kontroversi dan Laporan Kelayakan

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