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On the legal syllogism

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Original languageEnglish
Title of host publicationDimensions of Normativity
Subtitle of host publicationNew Essays on Metaethics and Jurisprudence
EditorsDavid Plunkett, Scott J. Shapiro, Kevin Toh
PublisherOxford University Press
Chapter15
Pages335-364
Number of pages30
ISBN (Print)9780190640408
Publication statusPublished - 28 Feb 2019

Abstract

This chapter argues against rule-deductivism. Rule-deductivism is the view that the justification of law-applying decisions is adequately understood on the model of a deductive argument—a “legal syllogism”, as it is often called—with a statement of an applicable rule as the “major premise”, and a statement of the relevant facts as the “minor” one. Rule-deductivism—not to be confused with formalism—has long been a popular view in legal argumentation theory. Endorsed by Kelsen, Hart, MacCormick, and Alexy, it continues to be accepted by authors such as Gardner, Leiter, and Marmor, among many others. But it is wrong, as this chapter tries to show. This chapter begins by offering a clear characterization of rule-deductivism; goes on to argue that rule-deductivism is not, even in its stronger version, a view that should be accepted; and concludes by sketching and motivating a new model of the justification of law-applying decisions that overcomes the flaws of the model of the legal syllogism.

    Research areas

  • legal argumentation, law application, legal justification, legal reasoning, legal rules, legal syllogism, deductivism

ID: 80914779