Law and Logic: E. Bulygin’s Deductive Pattern of Judicial Reasoning

In the twentieth century, the debate over the possibilities and limits of logic in law became particularly acute with the emergence of judicial realism, a philosophical and legal trend that denied the deductive nature of judicial decision-making. This compromised the theory of the judicial syllogism, assuming that a judicial decision could be deduced as a logical consequence from the premises - norms and facts, and generally provoked a sceptical attitude towards logic in law. The subject of the article is the deductive model of the justification of judicial decisions proposed by the outstanding legal philosopher Eugenio Bulygin. The aim of the article is to show Bulygin’s contribution to the improvement of the deductive model of judicial reasoning. The main innovations Bulygin brought to the deductive model of judicial reasoning are: 1) justifying, based on logical analysis and open texture of language theory, the analytical character of the court interpretative sentences; 2) distinguishing the individual and the generic subsumptions, etc. At the same time, the authors conclude that Bulygin’s improved deductive theory is not free from criticism, as the Argentine jurist does not succeed in complete eliminating doubts about the logical deducibility of at least some categories of decisions from general rules.

The risky temptation of wanting to be the Legislator of the Language

Criticizing the modern, rationalistic temptation to legislate on language, this article argues that issues of 'political correctness' are an aspect of the eternal problem of definitions in law. This problem has in its turn profound connections, on the one hand, with the need, entirely human, for a correct (not one-sided or arbitrary) relationship with reality; and, on the other hand, with the insidious attempt – which is all the same typically human – to deny reality, with its conflicts and ambiguities, and to replace it with a false, less challenging reality of 'objective' certainties. In law, the problem of definitions has historically followed many and different itineraries; this article briefly traces some, trying to show that the ideal of an objective definition – an ideal epitomized in the 'norm' idealized by legal positivism – has always co-existed, in the legal experience, with the different ideal of a subjective definition (dialectical, controversial, negative, refutative), of which the ancient maxims of equity, the regulae iuris, offer a model. The problem of legal definitions in law is then a matter of forms of reason that confront each other throughout the history of law, the one investing on a calculating and instrumental rationality, the other relying on a more porous and flexible reason. In the legacy of this second point of view – which, the article maintains, has more than one analogy with the paths of contemporary Feminist 'Radical' Thought – antidotes can be found to the temptation to legislate on language, which is risky. If objectivity tries to suppress subjectivity, in fact, this is in the name of the illusion, that problems that trouble the human conditions can be fixed, defined, solved once and for all. It is instead the open texture of these problems, which cannot be defined once and for all, that encourages the work of language and thought. And these latter are the resources for a living together really capable of freedom and equality, of change and future.

Analytic Tradition in Law: Through the Analysis of Language to the Reconstruction of Social Order

The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its limit, the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law (H.L.A. Hart, F. Waismann). The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first (A.L. Nikiforov’s) article of the discussion, can be challenged.

Jurisprudence—Merely Judgment: A Fallibilist Account of the Rule of Law

Published: Bruce Miller, Merely Judgment: A Fallibilist Account of the Rule of Law, 42 W. NEW ENG. L. REV. 215 (2020).How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions on what they take to be in the best interests of society.Is there a convincing response to Judge Posner’s critique? H.L.A. Hart famously sought to defend the rule of law as a law of rules, grounded in judges’ acceptance of a “Rule of Recognition,” as the ultimate basis for their decisions. But Hart’s reliance on agreement among judges, coupled with his acknowledgement of an “open texture” where the Rule of Recognition breaks down, renders his explanation unhelpful to a judge confronted with seriously competing arguments.

The Problem of Definition of Legal Concepts with “Open Texture”

Introduction: The article discusses the problems associated with the definition of legal concepts which have the feature of “open texture”. The introduction presents the nature and meaning of “open texture”, which is understood as a special kind of indeterminacy. Such concepts are considered in the form in which they were postulated in the works of the Austrian linguistic philosopher Friedrich Waismann and the British legal philosopher Herbert Hart. Theoretical Basis. Methods. It is contested that, in Hart’s interpretation, “open texture” appears in legal concepts in borderline cases, when the meaning of the term of “concept” becomes indeterminate, unclear, uncertain, and we do not know whether or not it should be applied. Such cases should be distinguished from clear-cut cases where such doubt does not arise. The methodological basis of the study is Hart’s thesis stating that legal concepts have “core” and “penumbra” of meaning. The “core” meaning indicates a set of certain conditions, in which the use of the term “concept” is clear, while a “penumbra” meaning refers to conditions in which the its use becomes less clear. “Open texture” in this case, is an irreducible feature of legal concepts. Results. The main result of the study is the assertion that “open texture” as an irreducible feature of legal concepts, can be disproved by changing its definition. It is shown that the most appropriate kind of definition of open-textured legal concepts is the definition or contextual definition, widely used in analytical philosophy.