Modern Approach to Legal Reasoning (MALR-P)

Course description


Welcome

General Information


Modern Approaches to Legal Reasoning


The aim of this course is to introduce the students to the basic methods and techniques in legal reasoning, and to some modern normative theories of legal reasoning. The course, which deals mainly but not exclusively with statutory law, should be of interest to law students in general, as the judge’s methodological considerations will influence his reasoning and, therefore, his decisions, especially in hard cases.


The first part of the course (seminars 1-6) is devoted to an analysis of the so-called legal method, that is, the familiar “bag of tricks” that includes the principles of statutory interpretation, the modalities of decision (analogy, argumentum e contrario, liberal interpretation etc.) the concepts ratio decidendi and stare decisis, conflict-solving maxims such as lex superior, lex posterior, and lex specialis, and more. In this part of the course we also consider the relevance of general theories of law (such as natural law theory and legal positivism) to legal reasoning, the distinction between the process of justification and the process of discovery, the judicial activism/restraint debate, and the possibility of objectivity in legal interpretation.


Because the legal method turns out to be rather indeterminate, legal scholars have developed general, normative theories of legal reasoning that aim to give the judge the kind of concrete guidance he needs when faced with a hard case. The second part of the course (seminars 7-12) treats some of these theories. Employing a distinction between principled and pragmatic approaches to legal reasoning, we examine Neil MacCormick’s positivistic and Ronald Dworkin’s anti-positivistic theory of legal reasoning as examples of the principled approach; and we study William Eskridge’s dynamic approach to statutory interpretation as an example of the pragmatic approach. To determine whether any of these theories can actually give the judge the kind of concrete guidance he needs, we apply each theory to cases decided by the European Court of Justice and the Supreme Courts inGermany,England, and theUnited States, respectively. 


Instruction: Seminar attendance is compulsory, and the students are expected to participate actively in the seminars. 


Examination 


Essay


You are expected to write a 10-15 pages essay on a topic of your choice. The essay may contribute up to 30 points, which will be added to your exam result – the exam itself may give you up to 50 points. The focus of the essay is part 1 of the course (seminars 1-6).


Take-home exam


The students will be asked to analyze a case decided by one of the courts mentioned above, and to answer the usual type of questions concerning the content of the reading materials.


See schedule for more information.


 

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Course title:
Modern Approach to Legal Reasoning
Semester: Autumn 2017
Study period: 1
Rate of studies: 100%
Level:
Credits: 15.0
Language of instruction: English
Syllabus

Contact:


Course contact:
malr@juridicum.su.se
Course coordinator:
Meri Mirsoyan
Course manager:
Torben Spaak

Teachers:


Spaak Torben
Minna Gräns