Methods of Legal Reasoning

The book attempts to describe and criticize four methods used in legal practice, legal dogmatics and legal theory: logic, analysis, argumentation and hermeneutics. Apart from a presentation of basic ideas connected with the above mentioned methods, the essays contained in this book seek to answer questions concerning the assumptions standing behind these methods, the limits of using them and their usefulness in the practice and theory of law. A specific feature of the book is that in one study four different, sometimes competing concepts of legal method are discussed. The panorama, sketched like this, allows one to reflect deeply on the questions concerning the methodological conditioning of legal science and the existence of a unique, specific legal method. The authors argue that there exists no such method. They claim that the methodologies presented in the book may serve as a basis for constructing a coherent and useful conception of legal thinking. Any such conception, however,must recognize its own assumptions and limitations, resulting from adopting a specific philosophical stance.

Zusammenfassung
Anyone reflecting on the methodology of legal reasoning faces a difficult task. The number of methodological theories in jurisprudence and the vast literature on the subject are not the only problems that have to be taken into account. Perhaps the most striking difficulty concerning the methodology of legal argument is the heated debate between jurists, legal theorists and philosophers of law that has been recurring since at least nineteenth century. Therefore a justification is needed for writing yet another book c- cerning the methods of legal reasoning; a book that aims to cover a lot of what has already been proposed in legal theory. We believe that there is such a justification. First, the perspective that we adopt in the present book is unique, at least in some respects. We venture to look at the methodology of legal reasoning from the outside, i.e. from a more g- eral, philosophical perspective, while taking into account the hard re- ity of law. This perspective enables us to ask questions about the justification for the methods of legal argument presented. Second, we do not want to defend one, paradigmatic conception of legal reasoning. On the contrary, we put forward the thesis that there is a plurality of argumentative methods. The plurality, however, does not lead to relativism in legal decision-making. Third, we reject any hierarchy of the methods of legal reasoning, and take the view that one can speak only of the precision and flexibility of different methodologies.

Inhalt

Part I. Controversy over legal methodology in the 19th and 20th centuries. 1. Three stances. 2. Methods of legal reasoning. 3. Logic - analysis - argumentation - hermeneutics.- Part II. Logic. 1. Introduction. 2. Classical logic: propositional logic and first order predicate logic. 3. Deontic logic. 4. Logic of action and logic of norms. 5. Defeasible logic. 6. Summary.- Part III. Analysis. 1. Introduction. 2. Linguistic analysis. 3. Economic analysis of law. 4. Summary.- Part IV. Argumentation. 1. Introduction. 2. Two conceptions of a legal discourse. 3. Legal argumentation.- Part V. Hermeneutics. 1. Introduction. 2. Hermeneutics as epistemology. 3. Hermeneutics as ontology. 4. The understanding of the law.- Part VI. Methods of legal reasoning from a post-modern perspective. 1. A summary. 2. Dilemmas of the contemporary philosophy of law. 3. The epistemological approach. 4. Unfinished projects.