The life of the law has not been logic; it has been experience, Holmes stated in 1881.By “logic” Holmes indicated he meant “the syllogism” and “the axioms and corollaries of a book of mathematics” by “experience” he meant “considerations of what is socially expedient.”However useful syllogistic logic may be in testing the validity of conclusions drawn from given premises, it is inadequate as a method of reasoning in a practical science such as law, where the premises are not given but must be created.In Germany, Rudolf von Jhering ridiculed a “jurisprudence of concepts” (Begriffsjurisprudenz) and called for a conscious legal policy of evaluating the social and personal interests involved in the legal resolution of conflicts (Interessenjurisprudenz).Tags: What Is Peak Oil ThesisRomeo And Juliet Persuasive Essay Friar LawrenceUnable To Assign Drive LetterDavid Staack ThesisBooks Man'S Best Friend EssaysLeadership Thesis ProposalIdaho Essay OutlinePersuasive Essay EditingHannah Arendts Zur Zeit Politische EssaysTerm Paper Download
The main tenet that this article aims to establish is that judicial virtue is necessary for successful legal interpretation.
Theories of interpretation are exceedingly useful devices to guide and assess judicial reasoning, but they are limited in that the soundness of their outcomes is dependent upon the possession and exercise of judicial virtue.
Even the judgments of the ancient Greek oracles were believed to reflect a hidden consistency.
It is also characteristic of legal reasoning that it strives toward continuity in time; it looks to the authority of the past, embodied in previously declared rules and decisions, and it attempts to regulate social relations in such a way as to preserve stability.
In the telling words of Immanuel Kant, “there is no rule for applying a rule” that is, there are no rules that can tell us in advance, with certainty, how a particular judge (legislator, administrator, etc.) ought to resolve a concrete case or problem that is before him—and this would be true even though we were able to say in advance what rules are relevant to such a resolution.
Once a legal conclusion is reached, it may often be stated in syllogistic form; but in the process of reaching it, the determination of the major and minor premises may have come last.
Indeed, the legal facts of a case are not raw data but rather those facts that have been selected and classified in terms of legal categories.
Finally, the conclusion, that is, the application of the rule to the particular case or problem, since it is a responsible decision directly affecting particular people in particular situations, is never mathematically inevitable but always contingent upon the exercise of judgment.
These variations strongly suggest that in any society there is an intimate connection between the logic, rhetoric, and discourse of law and the dominant beliefs of the society concerning religion, politics, and other aspects of social life, including its beliefs about the nature of reasoning itself.
Legal reasoning seems to be most distinctive in those societies that have experienced the emergence of a special professional class of lawmen, with its own special professional traditions and institutional values; here special modes of logic, rhetoric, and discourse seem to have as part of their functions the preservation and further development of the legal profession’s traditions and values, although at the same time even in such societies the intimate connections between legal reasoning and other types of reasoning must be maintained if the legal profession is to retain the respect of the community as a whole.