However, legal argumentation is mainly related to judicial application and interpretation of the law. As a result, legal reasoning in the common law system gives considerable weight to arguments about the consequences of the application of legislation and judicial decisions. Legal principles therefore serve as the yardstick against which acts must be assessed in order to determine their legality and relevance. Any action or suggestion that violates a legal principle would be subject to criticism and rejection by lawyers. An example of a legal principle is the principle of natural justice. If the decision of a lower court violates this principle, it is subject to overturning on appeal. Distinguishing cases is the opposite of reasoning by analogy. In distinguishing the cases, it is argued that the facts of precedent do not coincide with the facts of the present case, so that the rule of precedent is not applicable in this case. For example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous, so the wildlife case rule that the owner of a wild animal is strictly liable for damage caused by that wild animal should not apply to toy poodles. Rules-based reasoning is the most important type of legal reasoning. In rule-based thinking, you take a rule (a law or a case) and apply it to a set of facts. (This is a kind of deductive reasoning.) Richard Neumann found that rules consist of at least three parts: „(1) a set of elements, collectively called a test; (2) a result that occurs when all items are present (and the test is thus completed); and (3).
a causal term that determines whether the outcome is mandatory, prohibitive, discretionary or declaratory. (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules have „one or more exceptions that, if present, would cancel out the result, even if all the elements are present“. (Ibid.) An example of a rule would be the intentional infliction of emotional harm when (1) the defendant`s conduct is outrageous, (2) the defendant`s conduct is intentional, (3) the defendant`s conduct causes severe emotional distress, and (4) causes severe emotional distress. The rule would be satisfied if the facts of this case fulfilled all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times in the middle of the night to harass her (outrageous behaviour; intentional behaviour) and it causes her severe emotional distress (causality) (element 4), deliberate emotional stress has occurred. Coherence has been explained by MacCormick in relation to unity of principle in a legal system, stating that the coherence of a set of legal norms is that they are linked either by the realization of one or more common values or by the fulfillment of one or more common principles. The legal justification for judicial decisions must be based on objective standards and sound moral judgment and demonstrate a rational standard of justification. In fact, „moral requirements“ are considered one of the most important criteria for good thinking. He notes: “ In arguing for the sake of consistency, we argue for ways to make the legal system as close as possible to a rationally structured whole that does not require us to pursue mutually contradictory general objectives. In this way, analogue thinking promotes legal certainty and predictability of judicial decisions.
Analogous thinking involves noticing similarities between cases and adapting them to new situations. Arguments by analogy are common both for judicial decisions and for the interpretation of legal provisions. The requirement of moral reason as a criterion of good reasoning involves the 3 points; As I understand it, NO. The legal justification in the legislative process includes legislative proposals, preparation, etc. types of legislation and everything. Basically, I think it is a different issue from my perspective. Combines perspectives from Anglo-American and continental legal theory For example, in civil law or continental systems, analogous thinking is used as a tool to fill a gap in legislation or code. In the civil or continental legal system, the basic concept of analogous thinking derives from the fact that codes are published to provide guidance on any legal matter covered by the Code. Legal reasoning deals with how different considerations contribute to the determination of the law.
Thus, legal argumentation is applied to the application of the law in jurisprudential argumentation and legal creation. Shows the philosophical basis of any theory of legal thought In deductive reasoning, a logical conclusion is drawn from the main premise and the secondary premise. The process of deductive reasoning involves the formulation of one or more statements, and then a conclusion is reached by applying the established principles of logic. Thus, legal argumentation can be shaped by legal and non-legal considerations. Legal reasoning is generally applied in three areas; Legal reasoning shows why and how the court, lawyer or judge came to his or her decision or reasoning in the case. However, judges and lawyers often use similar arguments to argue that previous decisions are not sufficiently similar to be relevant to the issue in question. In other words, analogous thinking requires that similar cases be treated equally. The book attempts to describe and critique four methods of legal practice, legal dogmatics and legal theory: logic, analysis, argumentation, and hermeneutics. In addition to presenting the basic ideas associated with the above methods, the essays in this book attempt to answer questions about the assumptions behind these methods, the limitations of their application, and their usefulness in legal practice and theory. A peculiarity of the book is that four different, partly competing, concepts of legal methods are discussed in a study. The panorama thus sketched allows an in-depth reflection on the questions of the methodological conditioning of case law and the existence of a single and specific legal method.
The authors argue that such a method does not exist. They argue that the methods presented in the book can serve as a basis for building a coherent and useful conception of legal thought. However, each of these conceptions must recognize its own assumptions and limitations arising from the adoption of a particular philosophical attitude. Analogous reasoning does not necessarily mean that such an earlier case must coincide exactly with the case to be decided.