Journal of Siberian Federal University. Humanities & Social Sciences / Critics on the Deductive Model of Judicial Decision in Herbert Hart’s 1949 and 1958 Works

Full text (.pdf)
Issue
Journal of Siberian Federal University. Humanities & Social Sciences. 2017 10 (4)
Authors
Kasatkin, Sergei N.
Contact information
Kasatkin, Sergei N.: Samara Law Institute of FPS of Russia 24в Ryl’skaya Str., Samara, 443022, Russia; ; Касаткин, С.Н.: Самарский юридический институт ФСИН России Россия, 443022, Самара, ул. Рыльская, 24в
Keywords
H.L.A. Hart; judicial decision; logic in law; legal language; ascriptivity; defeasibility; indeterminacy in law; analytical philosophy of law; formalism; legal positivism
Abstract

This article considers defects / limitations of a logical-deductive model of judicial decision (prevalent in continental jurisprudence) which are presented in “early” (and more rarely discussed) conceptions of a prominent British philosopher H.L.A. Hart: his 1949 doctrine of ascriptivism and defeasibility of concepts and 1958 doctrine of legal indeterminacy. According to the philosopher, a deductive model does not give a proper explanation of: a) a nature and functions of legal speech acts; b) a method and peculiarities of establishing connection between legal concepts and their referents; c) openness and complexity of grounds of judicial reasoning; d) a limited role of logical tools in making a legal conclusion; etc. At the same time the distinctive judicial and alike statements are interpreted by Hart as conclusions of law, i.e. as inferences arising from norms and facts. Hence, contrary to the author’s assertions, he actually denies not a judicial deduction per se, but rather its certain kind, status and claims to universality. Therefore this allows applying logical apparatus to law and judicial decision while accounting for their limited role in legal and social practice, and so in theory and methodology of jurisprudence

Pages
467-473
Paper at repository of SibFU
https://elib.sfu-kras.ru/handle/2311/32332

Creative Commons License This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).