Legal Theory Systems

Download On Law and Reason by A. Peczenik PDF

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By A. Peczenik

This can be an overview of a coherence conception of legislation. Its simple principles are: average aid and weighing of purposes. the entire relaxation is remark. those phrases at the start of the preface of this booklet completely point out what On legislation and cause is set. it's a thought in regards to the nature of the legislations which emphasises the position of cause within the legislations and which refuses to restrict the position of cause to the applying of deductive common sense. In 1989, while the 1st variation of On legislation and cause seemed, this booklet was once floor breaking for a number of purposes. It supplied a rationalistic idea of the legislations within the language of analytic philosophy and in response to a radical knowing of the consequences, together with technical ones, of analytic philosophy. That used to be now not an noticeable blend on the time of the publication s first visual appeal and nonetheless isn't really. the result's an analytical rigor that's often linked to positivist theories of the legislation, mixed with a philosophical place that isn't usual legislations in a strict feel, yet which stocks with it the emphasis at the position of cause in picking what the legislations is. If just for this infrequent mix, On legislation and cause nonetheless merits cautious learn. On legislation and cause additionally foreshadowed and prompted a improvement within the box of felony good judgment that might ensue within the nineties of the twentieth century, particularly the advance of non-monotonic ( defeasible ) logics for the research of criminal reasoning. within the new creation to this moment variation, this point is explored in a few extra aspect.

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Report “Ekonomisk brottslighet i Sverige”, SOU 1984: 15). The rationale of it is to play down protection of an individual against abuse of public power and to advocate protection the state provides against other risks. Though such protection is important, I find it confusing to call it “legal certainty”; cf. Mattsson 1981, 459 ff. In modern society, people expect in general that legal decisions be highly predictable and, at the same time, highly acceptable from the moral point of view. Ceteris paribus, the higher the degree of such predictability, the higher the chance of an individual to efficiently plan his life.

And 1980, 192; Aarnio, Alexy and Peczenik 1981, 154 n. 66). In “easy” cases, the decision follows from a legal rule, a description of the facts of the case and perhaps some other premises which are easy to prove. , that John parks his car without paying the required charge. A carpark attendant comes and John is fined 150 kronor. 2 Legal Decision-Making and Evaluations 15 Premise 2 The carpark attendant Svensson found John’s car at a place where charge was required and the charge was not paid Conclusion The carpark attendant Svensson shall impose a fine 150 kronor on John A “hard” case, on the other hand, “presents a moral dilemma, or at least a difficult moral determination” (Morawetz 1980, 90).

A gap occurs. One can establish such gaps in an objective, “value-free” manner but to fill them up, one must complete the statute with an additional norm, such as the following one: An action is permitted, if it is not explicitly forbidden by the law (cf. 4 infra). Such a norm may be established in a statute or another source of the law. If it is not, then filling up of the gap demands that one makes a value judgment. The “genuine gaps” are a special case of insufficiency gaps. , that one can demand compensation in a given situation but leaves it open who has to pay the compensation.

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