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Standards Of Legal Reasoning

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Chapter Summary

This chapter discusses the process of legal reasoning in general; the concept of deductive or syllogistic reasoning; and its role for legal justification. Scepticism, i. e. the denial of objectivity, poses a major threat to the legitimacy of judicial review. The chapter elaborates a meta theory of legal justification. It introduces the distinction between clear cases and hard cases and argued that at least in clear cases legal justification works in a deductive scheme. Moreover, the chapter asks whether it is a foundation of legal reasoning in hard cases or whether it should be replaced by another mode of justification, balancing. In order to answer this question the chapter has outlined the major tenets of legal reasoning, which are fulfilled by deductive reasoning. The chapter explains the notion of transformations or jumps (on page 16), which describes non-deductive schemes of legal reasoning.

Keywords: fundamental rights; legal reasoning; moderate scepticism



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