Legal reasoning: three key issues, and what philosophy can(not) do about them

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Abstract

Three issues are, I think, crucial to our understanding of legal interpretation and legal reasoning generally. First, how does the interpretation of cultural, linguistic artifacts fare within non-cooperative interpretive games (sect. 3)? Second, how can a game in which the pronouncements of the umpire are final as to whether the rules defining the game itself have been complied with--how can such a game be a coherent enterprise at all (sect. 4)? Finally, granted that legal rules and principles are usually, albeit implicitly, regarded as defeasible in the light of moral considerations, what is the structure of the reasons leading, in such cases, to their revision (sect. 5)?I shall only sketch the contours of these three issues, pointing to some of their implications and underlying assumptions, in the hope of giving the feeling of how important they are, and how central their role is in structuring our various puzzlements about legal interpretation and reasoning. In so doing, I shall avail myself of some philosophical tools (respectively, an informal understanding of strategic interaction and its various forms; the theory of constitutive rules; a particularistic view of reasons for action). I am not going to suggest, however, that philosophy (specifically, the deployment of these conceptual tools) does lead to a solution to the puzzles. On the contrary, resort to philosophical tools is only meant, here, to contribute to our awareness of the depth of the issues themselves. No “solution”--a fortiori, no “philosophical” solution--is in the offing.
Lingua originaleEnglish
Titolo della pubblicazione ospiteAnalisi e diritto 2005. Ricerche di giurisprudenza analitica
Pagine99-114
Stato di pubblicazionePublished - 2006

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