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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The former reasoning is incontrovertible, irrefutable and undeniable; it is simply out of question, because they are certain and already proved to the extent that the syllogism is formed by primitive and truth propositions, or else to propositions that own uprich certainty to primitive and truth propositions, and as such are object both of the First Analytics or Analitica primera as a theory of deduction or syllogism; and, of the Second Analytics or Analitica posteriori as a theory of demonstration or proof.
Both kinds are based in a syllogism, i. These are interpretative arguments and comprehend a great variety of classes or types of reasons: For example, their reasoning might be the following: The analytical reasoning, both in the form of the deductive syllogism and of the deductive demonstration or proof, constitutes a central part in the formal or traditional logic.
The law exists to be realized. In that sense, the Exegetic School presupposes that the legal norm constitutes a hypothesis that the judge applies as a general and abstract rule to a particular and concrete case, by subsuming automatically or mechanically particular and concrete facts in general and abstract norms to reach a conclusion, which deductively lgica the legal consequences applicable to the case at hand.
On the other hand, logical-dynamical reasons include: Conclusion To conclude I will like to insist that law is not an applicative model but an argumentative one. Moreover, the right answer is not and cannot be known ex ante to be merely applied but ex post after it has been argued for. In the process of reaching a legal solution to a legal problem, it lotica not enough to apply the existing solutions but to create new solutions to the problems at stake.
Lógica jurídica – Ulrich Klug – Google Books
Flores IB, ‘Unchaining Prometheus: Rather they ulricn 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.
For instance, a court is bounded by its previous rulings; lower courts are bound to follow the criteria or precedent of upper courts; and judges are logcia by the legislative enactments.
Furthermore, the legal argumentation is developed within an institutional context and comprises institutional reasons, i. Hence, its must neither be overstated nor understated. It seems like despite law’s practical nature there is a strong tendency to believe that it can only be learned in books, not in action.
Therefore, we can conclude: In this way, with the help of the middle concept “human being” it is possible to subsume the subject “Socrates” in the predicate “mortal”. Certainly the Roman jurists did not resolve the case at hand by means of a mere application -or at least did not limit themselves to the application- of pre-established or preexisting rules, and much less were expecting that those coming after them will pretend that it was possible to apply them automatically or mechanically.
Although the idea of law as something to be applied strictly and so recreated by a purely deductive mode of reasoning has been unpopular for some time now, it seems that most legal professors and scholars keep teaching law as already settled and not as a matter to be settled.
In that sense, it is not surprising that the legal logic, or more properly the general logic as applied to law, has become increasingly popular, ever since its reappearance in mid-twentieth century. Certainly, the great force and value of the syllogistics, as well as its flaws and limits, rely on this brute or crude fact: The basic experience is of double surrender: 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: As you can see, legal argumentation benefits not only from the proved reasoning of the analytical logic, but also from the probable reasoning of the dialectical logic.
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.
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Actually, the meaning of the word ‘conclude’ is “deduct or derive a judgment from other propositions, including judgments”. Atienza M, Las razones del derecho. To conclude I will like to insist that law is not an applicative model but an argumentative one. You always can imply a condition in a contract.
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 that after a while became considered as the law itself. Actually, in the case of the service dogs, they are instrumental not only for guaranteeing it but also for enabling blind people to use the subway or train.
Once the traditional conception of legal interpretation as mere application is displaced by an alternative conception as argumentation, it is clear that the applicative model must yield to the argumentative one. For that purpose, the commission revised for three years their legal decisions and writings to extract a collection of the maxims that they have established and that were followed at that time.
Non ex regula ius summatur, sed ex iure quod est regula fiat. So, from two premises protesis one necessarily arrives to a conclusion. From Application to Argumentation. The objection replies that there is sometimes no single right answer, but only answers’; ‘No Right Answer? In my opinion, it is imperative to insist in the importance of rejecting any definition of legal interpretation that portrays itself as capable of providing automatically in an uncritical, passive or re-creative fashion the one and only meaning or sense of any norm to be applied, as well as the lkgica right answer ulrkch the case at hand.
A Polemic Against the System Any lawyer has built up, through education, training, and experience, his own sense of when an interpretation fits well enough to count as an interpretation rather than as an inventio n.
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.
Dworkin R, ‘No Right Answer?
In addition, we are not certain that the legislator considered prohibiting passing with any dog, including assistance or service dogs, muridica else permitting passing with the bear, but it is probable that the legislator when establishing the prohibition was thinking it very likely that people will attempt to pass with a dog and that it was very unlikely logicaa do it with a bear, assuming that he even considered it as a possibility.
Nevertheless, to point out the flaws and limits of the formal or traditional logic, it is imperative to recall Rudolf von Jhering, who in his Scherz und Ernst in der Jurisprudenz puts the Begriff Jurisprudenz in its place, by pointing out the scope and limitations of the Conceptual Jurisprudence or Jurisprudence of Concepts as developed uncritically by the rest of the disciples of Friedrich Karl von Savigny.
Dworkin R, ‘Objectivity and Truth: Ronald Dworkin, Justice in Robes Summary: Since legal interpretation cannot be reduced to a mere applicative declaration -uncritical, passive and re-creative- of the one and only meaning, it is necessary to acknowledge it as an argumentative attribution -critical, active and creative- of a plausible sense among an infinity of possible ones. On the contrary, the formula “dangerous animals” is fortunate despite being still a vague expression since it provides a justification not ultich for the prohibition of those animals that may affect the passengers and their well being for posing a real or eminent threat due to the fact of being intrinsically perilous and representing a risk by creating conditions of incommodity, insalubrities, and insecurity, but also for the exception to the rule, i.
The tension between the strictly legal aims of the Code and the political ones was solved in favor of the latter. Methods and Problems’5: It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of exact logical conclusions.
Moreover, ever since the appearance in Germany of the Jurieica of the Historical School in it was clear that the law regulated legal relations, but in a more concrete way as expressed by the volkgeist or spirit of the people as national or state law, in this case, German law, but contrasted with the more sophisticated version of the law available at that time, i.
Moreover, in case of logida the cases of assistance and service dogs, and of bears, the most probable thing is that the legislator will permit the former and prohibit the latter.
What cannot be erase, what will eternally live, is my Civil Code”.