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Legal Reasoning

Legal Reasoning.

allen-hays
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Legal Reasoning

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  1. Legal Reasoning • Two principal kinds of questions are asked in legal studies. Such studies are known as “jurisprudence” and “philosophy of law.” The first kind asks what the law should be and what procedures for making law should be adopted; the second kind asks what the law is and how it should be applied. Typically, philosophers are more interested in the former type of question and practicing attorneys in the latter.

  2. Legal Moralism • Consider whether a law that forbids doing X should be enacted by your state legislature. Typically there are four main grounds on which a supporter of a law can base his or her justification. • The claim that the law should make illegal anything that is immoral. This is the basis of the position known as legal moralism. Some possible starting points for legal moralism: Would any of these be more promising as a starting-point for a morality-based legal system? Moral relativism, utilitarianism, Kant’s categorical imperative, divine command theory?

  3. Harm principle • Harm principle: The only legitimate basis for forbidding X is that doing X causes harm to others. Notice that the harm principle states not just that harm to others is a good ground for forbidding an activity, but it is the only ground. It is interesting to think about environmental laws, smoking laws, and so forth.

  4. Legal Paternalism and the Offense Principal • Legal paternalism is the view that laws can be justified if they prevent a person from doing harm to him or herself; that is, they forbid or make it impossible to do X, for a person’s own good. i.e. seat belt laws. There are very few cases of pure legal paternalism. • The offense principle says that a law forbidding X can be justifiable if X causes great offense to others. Laws forbidding burning of the flag are often justified on this ground.

  5. Legal Reasoning V • Generally speaking, legal reasoning is like other reasoning insofar as it makes use of the same kinds of arguments: They are deductive or inductive; if the former, they can be valid or invalid; if the latter, they can range from strong to weak. The difference between legal and other types of reasoning is mainly in the subject matter to which the argumentative techniques are applied.

  6. Kelo vs. New London? Did this case violate the fifth amendment? • No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

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