Lógica jurídica. Front Cover. Ulrich Klug. Ed. Sucre, – Filosofia del derecho – pages Bibliographic information. QR code for Lógica jurídica. Lógica Jurídica Ulrich Klug – Download as PDF File .pdf), Text File .txt) or read online. Get this from a library! Logica Juridica. [Ulrich Klug].
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Hart Oxford University Press In that sense, it is a common place to locate, following Neil MacCormick, the particular legal argumentation within general practical argumentation, 34 which includes axiological, deontological and teleological reasons about the material correction and validity of the argument itself.
Flores IB, ‘Langdell v. They learn “issue spotting”, which means identifying the ways in which the rules are ambiguous, in conflict, or have a gap when applied to particular fact situations. On the other hand, logical-dynamical reasons include: Certainly, the great force and value of the syllogistics, as well as its flaws and limits, rely on this brute or crude fact: You can give to any conclusion a logical form.
You always can imply a condition in a contract. It is also clear that regardless of the kljg of the French emperor, the members of the commission neither conceive the code nor the law as a merely applicative model, and much less do they pretend it was perfect, but perfectible as any other human endeavor.
As you can see, legal argumentation benefits not only from the proved reasoning juridixa the analytical logic, but also from the probable reasoning of the dialectical logic.
But why do you imply it? Theory of Legal Argumentation.
Lógica jurídica – Ulrich Klug – Google Books
Conclusion To conclude I will ujridica to insist that law is not an applicative model but an argumentative one. A Polemic Against the System Afar Both kinds are based in a syllogism, i. With that, instead of an authentic exegesis, i. On this regard, let me bring to mind Oliver Wendell Holmes Jr.
Hence, its must neither be overstated nor understated. My hunch is that neither the emperor that promulgated the code nor the jurists commissioned to do the codification considered law as an applicative model, but limited themselves to systematize the maxims contained in such decisions to serve as a guiding criteria or precedent for future cases, but juridicaa after a while became considered as the law itself.
However, this reasoning begins kluf an openly false premise, i. Methods and Problems’5: They learn to retain large number of rules organized into categorical systems requisites for a contract, rules about a breach, etcetera. It is clear that the formal logic serves to derive a valid conclusion from the premises, but it does neither ulrixh how someone has reached such premises nor that it is its inescapable conclusion, as Holmes warned: Therefore, we can conclude: Thus, we can also conclude: This explains how legal education not only reproduces the existing ulroch but also re-legitimizes past decisions and reinforces the statu quo.
In that sense, its teaching-learning cannot be reduced to the recreation or reproduction of the preexisting rules and responses, much less of a mere application of the general and abstract norm to the particular and concrete case at hand, through mechanical subsuming facts into norms, to derive a certain conclusion and legal consequences.
The tension between the strictly legal aims of the Code and the political ones was solved in favor of the latter. One of the very few exceptions, of those who jugidica take seriously the invitation, include both Jerome Frank and Karl N. Furthermore, it is imperative to reject the notion, according to which the judge can legislate, i. On the contrary, what is realized as law is law, even though it is neither written in the laws, lovica the people and the science have gained knowledge of ilrich yet.
Likewise, I will like to insist that law has always been an argumentative model, ulricj of being considered for some time, especially in the context of the great codifications, from Justinian to Napoleon, as a mere jurldica one. On the contrary, the latter reasoning is not incontrovertible, irrefutable and undeniable, but controvertible, refutable and deniable; it cannot be out of question, because they are neither certain nor proved but probable, since by definition the conclusion follows from propositions which are merely probable and as such are subject of the Dialecticswhich comprises: Hence, he criticizes the idea that mistakenly reduces law and legal education to the teaching-learning of an applicative model, which he characterizes as a-critical, passive and re -creative, and confronts it with an argumentative one, which he conceives as critical, active and creative.
In the process of reaching a legal solution to a legal problem, it is not enough to apply the existing solutions but to create new solutions to the problems at stake. They claimed that from something as abstract as legal concepts it was possible to capture -and even exhaust- the essence of law and of the legal relations that it pretend to regulate, to the extent that it will suffice to apply them almost automatically or mechanically.
My truth glory is not in winning forty battles; Waterloo will eclipse the memory of many victories. Introduction to Legal Logic30 which was published, inthe same year that Georg Henrik von Wright and Ulrich Klug published their first articles and books on deontic or modal logic and legal logic, 31 and even before authors such as Georges Kalinowski. In this article the author questions whether the law is an applicative or an argumentative model.
In the case at hand, the head of the police commits a fallacy and falls into what is a pseudo-reasoning, which seems to be a valid reasoning but is not: The fact that these reasons are provided by an institutional authority is not enough to justify its application to the case at hand, and hence additional reasons are required.
Rather they did resolve the case at stake via the argumentation following not only the reasoning of the parties but also their own and by creating an individual norm, i.
Certainly, someone can claim that in the event of the legislators wanted to prohibit passing with “bears”, they should have included them next to “dogs”, or else, introduce a more ample or generic formula such as “animals”, “animals with certain size”, “dangerous animals” or “animals that may affect the passengers and their well being”.
Although the deductive syllogism is widely used, since all legal operators, including the legislator and the judge, have to ground their claims. Additionally, I will insist that law is and must be properly understood as an argumentative model, regardless of appearing to be reduced to a mere applicative one, especially in the context of the great codifications from Justinian to Napoleon; and, hence, its teaching-learning must be done according to its argumentative nature, not llug applicative.
Lalor trans, Callaghan and Company Moreover, he highlighted that these capacities in spite of not been evident juuridica real social value; they are difficult to acquire; and one can’t practice law effectively without them. What’s more, it will suffice that the “judicial legislation”, instead of being something exceptional or interstitial, becomes the general rule to proof its illegitimacy as a “judicial usurpation” as Lon L.