Universals of Legal Reasoning by Judges

Auteur
Thomas Lundmark earned a bachelor's degree (AB) after studying comparative literature in San Diego and Uppsala; a Juris Doctor (JD) degree from the University of California, Berkeley; and, having studied as a Fulbright Scholar at Freiburg, the degree Doktor der Rechte (Dr jur) from the University of Bonn. Lundmark practised law in California and served three years as a Fulbright Senior Professor at the Universities of Bonn and Rostock. He is emeritus Professor of Common Law and Legal Theory at the University of Münster and presently holds the HK Bevan Chair in Law at the University of Hull.

Texte du rabat

Universals in Legal Reasoning by Judges explores and expounds the usage of rules to justify judicial decisions. It argues for judicial transparency and candour to enhance the persuasiveness and efficacy of judicial precedents, to foster democratic legitimacy, and to permit political accountability.

Résumé
Universals in Legal Reasoning by Judges explores and expounds the usage of rules to justify judicial decisions. Inspired by Savigny's canons of interpretation, and informed by the author's years of study and teaching in Germany, the book constructs a matrix for all legal argumentation in place of the so-called rules of interpretation, classifying justificatory arguments into four categories: textual, historical, purposive, and system-contextual. Along these categories, the book reveals certain universals while dispelling the confusion and mystery surrounding reasoning from judicial case decisions. This it does &#8212 simply and elegantly &#8212 by equating reasoning from case decisions with reasoning from statute. A myriad of examples, primarily from Germany, California, and the United Kingdom, show how these arguments find universal application. From start to finish, this book is itself an argument: an argument for judicial transparency and candour, which requires that judges reveal their thoughts and motivations-their ultimate reasons. This is necessary to enhance the persuasiveness and efficacy of judicial precedents, to foster democratic legitimacy, and to permit political accountability.

Contenu

• 1: Introduction and Definitions

• 2: Making, Finding, Applying, and Justifying

• 3: Political Judging

• 4: Rules from Statutes and Cases

• 5: Textual Argument

• 6: Historical Argument

• 7: Purposive Argument

• 8: System-Contextual Argument

• 9: A Plea for Transparency and Candour