Reading
18 December 2021
16:25
Hage et al (2017) ch2, par 1-5
By Arianna van Beek
Sources of law have two different functions:
1. Indicate the various shapes that law can take: customary law, precedent-based law,
law based on legislation and treaties, and law based on legal doctrine and reason
2. Play an important role in legal reasoning: they are used to substantiate the assertion
that a particular rule is a legal rule and therefore can be used to support claims in law
(and the other way around).
2.1 The Legal Syllogism
Most important form of legal reasoning can be represented as a logical syllogism.
Syllogism: an argument with two premises (starting points) and a single conclusion.
First premise contains the formulation of a legal rule in the format:
IF condition THEN legal consequence.
Second (factual) premise is the description of the facts of a case that satisfy the
conditions of the rule.
Conclusion describes the legal consequence that results from the application of the
rule to the facts of the case.
Example:
First premise: IF somebody acted wrongfully toward another person, and if he thereby
caused damage to this other person, THEN he must compensate this damage.
Second premise: Pierre acted wrongfully toward his neighbours and thereby he caused
damage to his neighbours.
Conclusion: Pierre must compensate the damage to his neighbours.
2.2 Classification
Classification of facts = a translation from the concrete case description to the abstract case
description that matches the rule conditions.
Example: the facts that Pierre was distracted, stumbled over the carpet, and fell
against the vase are taken together and classified as the fact that Pierre acted
negligently.
Classification of case facts is often also based on the application of legal rules. Therefore, a
classificatory argument can usually be cast in the shape of a legal syllogism.
IF somebody acted negligently toward another person, THEN the former acted
wrongfully against the latter.
Pierre acted negligently toward his neighbours. à Pierre acted wrongfully toward his
neighbours.
This classificatory argument still has an abstract factual premise. Therefore, we need yet
another classificatory argument to justify the intermediate conclusion that Pierre acted
negligently toward his neighbours:
IF somebody paid insufficient attention and thereby caused damage to another,
THEN the former acted negligently toward the other.
Pierre paid insufficient attention and thereby caused damage to his neighbours.
Conclusion: Pierre acted negligently toward his neighbours.
2.3 Justification of the Rule: Official Legal Sources
, Most legal arguments are based on rules.
Often, the rules used in legal arguments are uncontroversial.
This is the case for many classificatory rules that express the normal
meanings of words. E.g. a car is a vehicle.
Rules can be more controversial.
E.g. the rule that if someone acted wrongfully toward another, and if he
thereby caused damage to that person, he must compensate this damage.
Source of law comes into play: the use of a rule in a legal argument is
typically justified by pointing out that the rule can be found in an official
source of law.
Official sources of a modern legal system are:
Legislation
Including treaties
Precedents (in the case of common law) à can be used as a reason why this rule is
valid law and can support new legal decisions.
Legal sources are indicative of the different shapes law can take.
Identified by looking at different legal systems at different times.
Official sources can be used as reasons why a particular rule is a valid legal rule here
and now.
The justification of a legal rule by means of an official legal source can be presented
as a syllogism:
IF a rule can be found in an official legal source, THEN this rule holds (is
valid).
The rule «If somebody acted wrongfully towards another, and if he thereby
caused damage to this other person, he must compensate this damage» can
be found in an official legal source.
IF somebody acted wrongfully toward another, and if he thereby caused
damage to this other person, THEN he must compensate this damage.
In the common law tradition, judges are not bound by every element of an earlier court
decision, but only by its ratio decidendi.
Ratio decidendi: consists only of the decisive grounds that led the court take the
decision.
This ratio decidendi, together with the outcome of the case, is comparable to
respectively the conditions and the conclusion of a rule.
Apart from these decisive reasons, the court may have mentioned other reasons that are
relevant but did not determine the court’s decision: obiter dicta.
Sources thesis: only those rules which can be traced to an official legal source are legal rules.
Legal positivism: the view that all law is positive law, that is: law that was created by being
laid down.
There is an official source for every legal rule.
2.4 Interpretation
Interpretation:
The step from the text of an official legal source to the formulation of a rule with a
clear structure --> this can be difficult to do.
The classification of case facts to allow their description fit the conditions of a rule
The establishment of the legal consequences of juridical acts such as a contract, last
will, or permit.
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