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].
|Published (Last):||12 June 2018|
|PDF File Size:||13.5 Mb|
|ePub File Size:||17.58 Mb|
|Price:||Free* [*Free Regsitration Required]|
Is Law an Applicative Model? Atienza M, Las razones del derecho.
In that sense, it is a common place to locate, following Neil MacCormick, the particular legal argumentation within general practical argumentation, 34 which includes axiological, deontological and teleological reasons about the material correction and validity of the argument itself.
Hart insisted, following Holmes, that due to the “open texture” of language and according to him of law as well, the judges must exercise their discretion by assuming the role of the legislative to create or change the law: The basic experience is of double surrender: Moreover, the Council, presided by Napoleon himself, suppressed this part before presenting it to the General Assembly.
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.
Hence, its must neither be overstated nor understated. 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.
Flores IB, ‘Unchaining Prometheus: 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.
This is an open-access article distributed under the terms of the Creative Commons Attribution License. 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 their 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.
On the contrary, the latter reasoning is not incontrovertible, irrefutable and undeniable, but controvertible, refutable and deniable; it cannot be out of question, because they are neither certain nor proved but probable, since by definition the conclusion follows from propositions which are merely probable and as such are subject of the Dialecticswhich comprises: Both kinds are based in a syllogism, i.
Lógica jurídica – Ulrich Klug – Google Books
Auf den Verifchievenen gtufen feiner enwidlung: Hence, he criticizes the idea that mistakenly reduces law and legal education to the teaching-learning of an applicative model, which he characterizes as a-critical, passive and re -creative, and confronts it with an argumentative one, which he conceives as critical, active and creative.
This is a clear example of what Aristotle labeled as an “apparent syllogism”, i. January 07, ; Accepted: But they are nowhere near as inaccessible as they are made to seem by the mystique of legal education. From Application to Argumentation. Moreover, ever lkgica the appearance in Germany of the Review 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.
In that sense, it is not kluv 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. Jurivica this loguca, let me bring to mind Oliver Wendell Holmes Jr. However, this reasoning begins with an openly false premise, i. A Polemic Against the Kkug Any lawyer has built up, through education, training, and experience, his own jurridica of when an interpretation fits well enough to count as an interpretation rather than as an inventio n.
The passing of any animal, like a dog, which constitutes a danger or represents an unnecessary risk to the well being of the passengers, is and must be equally forbidden.
One of the very few exceptions, of those who did take seriously the invitation, include both Jerome Frank and Karl N. Moreover, in case of considering 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.
Rather they did 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. 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.
Dworkin R, ‘No Right Answer? A titanic endeavor realized paradoxically in only four months. In my opinion, it is imperative to insist in the importance of rejecting any definition klugg 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 unique right answer to the case at hand.
To the extent that for Napoleon the Code was nothing but perfect, a sign of excessive trust in the French rationalism that enable him to consider ulricb as “the most pure exercise of reason”, and that any deforming interpretation of it may endanger his general project of bringing order in ulridh the internal and the external.
Ulrich Klug, Lógica Jurídica – PhilPapers
Theory of Legal Argumentation. It is also clear that regardless of the intentions of the French emperor, the members of the commission neither conceive the code nor the law as a merely applicative model, and much less do they pretend it was perfect, but perfectible as any other human endeavor. Nevertheless, in uuridica, legal education is limited or restricted to the teaching-learning and, thus, to the recreation of the existing rules, and the prior responses given by others.
In this way, with the help of the middle concept “human juridic it is possible to subsume the subject “Socrates” in the predicate “mortal”.
Actually, the formulas “animals” and “animals with certain size” are not that fortunate. The Forms and Limits of Legislation’ 1 Problema.
The fact that these reasons are provided by an institutional authority is not enough to justify its application to the case at hand, and hence additional reasons are required.
The concept “human being” is the meson or medius terminusand the concepts “Socrates” and “mortal” are the two extremi. For example, their reasoning might be the following: Conclusion To conclude I will like to insist that law is not an applicative model but an argumentative one.