Cambridge.University.Press.Demystifying.Legal.Reasoning.Jun.2008.pdf

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Cambridge.University.Press.Demystifying.Legal.Reasoning.Jun.2008. This page intentionally left blankP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18Demystifying Legal ReasoningDemystifying Legal Reasoning defends the proposition that there are no specialforms of reasoning peculiar to law. Legal decision makers engage in the samemodes of reasoning that all actors use in deciding what to do: open-ended moralreasoning, empirical reasoning, and deduction from authoritative rules. Thisbook addresses common-law reasoning, when prior judicial decisions determinethe law, and interpretation of texts. In both areas, the popular view that legaldecision makers practice special forms of reasoning is false.Larry Alexander is a Warren Distinguished Professor of Law at the University ofSan Diego School of Law. He is the author of Is There a Right of Freedom of Expres-sion? (Cambridge, 2005); (with Emily Sherwin) The Rule of Rules: Morality, Rules,and the Dilemmas of Law (2001); Constitutionalism: Philosophical Foundations(Cambridge, 1998); (with Paul Horton) Whom Does the Constitution Command?(1988); several anthologies; and more than 160 articles, book chapters, and reviewessays in jurisprudence, constitutional law, criminal law, and normative ethics.He has been a member of the faculty at the University of San Diego School of Lawsince 1970. He is coeditor of the journal Legal Theory (Cambridge), and he serveson the editorial boards of Ethics, Law and Philosophy, and Criminal Law andPhilosophy. He is co–executive director of the Institute for Law and Philosophyat the University of San Diego, and he is past president of AMINTAPHIL.Emily Sherwin is Professor of Law at Cornell Law School. She specializes injurisprudence, property, and remedies. She is the author (with Larry Alexander)of The Rule of Rules: Morality, Rules, and the Dilemmas of Law (2001) and haspublished numerous book chapters, articles, and reviews in her subjects ofspecialty. She was a member of the faculty at the University of Kentucky Collegeof Law from 1985 to 1990 and the University of San Diego School of Law from 1990to 2003, when she moved to Cornell University. She is a member of the advisorycommittee for the American Law Institute’s Restatement (Third) of Restitutionand Unjust Enrichment and a regular participant in roundtable conferences ofthe University of San Diego’s Institute for Law and Philosophy.iP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18iiP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18Cambridge Introductions to Philosophy and LawWilliam A. Edmundson, Georgia State UniversityThis introductory series of books provides concise studies of the philosophicalfoundations of law, of perennial topics in the philosophy of law, and of importantand opposing schools of thought. The series is aimed principally at students inphilosophy, law, and political science.iiiP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18ivP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18Demystifying Legal ReasoningLARRY ALEXANDERUniversity of San Diego School of LawEMILY SHERWINCornell Law SchoolvCAMBRIDGE UNIVERSITY PRESSCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University PressThe Edinburgh Building, Cambridge CB2 8RU, UKFirst published in print formatISBN-13 978-0-521-87898-2ISBN-13 978-0-521-70395-6ISBN-13 978-0-511-40908-0© Larry Alexander, Emily Sherwin 20082008Information on this title: www.cambridge.org/9780521878982This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.Published in the United States of America by Cambridge University Press, New Yorkwww.cambridge.orgpaperbackeBook (EBL)hardbackP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18ContentsIntroduction page 1PART ONE Law and Its FunctionI Settling Moral Controversy9PART TWO Common-Law Reasoning: Deciding CasesWhen Prior Judicial Decisions Determine the LawII Ordinary Reason Applied to Law: Natural Reasoningand Deduction from Rules31III The Mystification of Common-Law Reasoning64IV Common-Law Practice104PART THREE Reasoning from Canonical Legal TextsV Interpreting Statutes and Other Posited Rules131VI Infelicities of the Intended Meaning of CanonicalTexts and Norms Constraining Interpretation167viiP1: KNP Top Margin: 0.50186in Gutter Margin: 0.94101infm cuus142 ISBN: 978 0 521 70395 6 April 15, 2008 17:18viii CONTENTSVII Nonintentionalist Interpretation 191VIII Is Constitutional Interpretation Different? WhyIt Isn’t and Is 220Epilogue: All or Nothing 233Selected Bibliography 237Index 247 . 70395 6 April 15, 2008 17:1 8Demystifying Legal ReasoningDemystifying Legal Reasoning defends the proposition that there are no specialforms of reasoning peculiar. Clarendon Press 1765).More recent works focusing on legal reasoning include Lloyd L. Weinreb, Legal Reason:The Use of Analogy in Legal Argument (Cambridge: Cambridge
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Xem thêm: Cambridge.University.Press.Demystifying.Legal.Reasoning.Jun.2008.pdf, Cambridge.University.Press.Demystifying.Legal.Reasoning.Jun.2008.pdf, Cambridge.University.Press.Demystifying.Legal.Reasoning.Jun.2008.pdf, The Dilemma of Rules, The Possibility of Determinate Rules, The Nature of Law, The Natural Model of Common-Law Reasoning, The Rule Model of Common-Law Reasoning, A Closer Look at the Rule Model: Implications and Puzzles, Analogical Reasoning from Case to Case, Reasoning from Legal Principles, Judges as Rule Makers, Correctives to Judicial Rule Making, Rationality and Sustainability of Judicial Practice, The Goal of Legal Interpretation: The Lawmaker’s Intended Meaning, What Is the State of Mind That Constitutes the Lawmaker’s Intended Meaning?, Some Challenges to the Determinacy of Intended Meanings, Absurd, Unjust, and Pointless Intended Meanings, Conflicting Multiple Intended Meanings, Norms for Avoiding Substantively Infelicitous Results, Norms for Effectuating Specific Policies, Norms of Form Norms Constraining Intended Meanings as Antidotes to the Foregoing Infelicities, Norms for Failed Law, Levels of Generality of Rule Makers’ Intentions, Argument One: Texts Cannot Declare the Language in Which They Are Written, Argument Two: Texts Cannot Declare That They Are Texts, Argument Three: Meaning Cannot Be Autonomous from Intent – One Must Always Identify an Author, Argument Four: Texts Can Have “Deviant” Meanings Because Those Meanings Are Intended, Four Nonalgorithmic Textualisms Textualism, Dynamic Interpretation of Canonical Legal Rules, The Constitution as Super Statute, Supreme Court Precedents and Constitutional Interpretation

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