Legal Reasoning

Question 1

Legal Syllogism

Answer 1

1. Two premises
   - Formulation of a legal rule (if condition, then legal consequence)
   - Description of the given facts that satisfy
2. one conclusion; describes lq that results from the application of the rule to the facts of the case

Question 2

Justification of a rule: official legal sources

Answer 2

• legal arguments are based on rules
• uncontroversial: revealing the true meaning of a word
• official sources: legislation, treaties, precedents
• ratio decidendi: common law, consists only of the decisive grounds that led the court to make the decision
• obiter dicta: another reason the court could have mentioned to determine the decision, not binding

Question 3

Legal positivism

Answer 3

all law is positive law; there is a source for every legal rule-> if a rule stems from an official source, it’s a legal rule

Question 4

Interpretation

Answer 4

canons of interpretation: techniques to deal with interpretation, the determination of rule formulation, classification of facts & determination of qualification of legal acts

• literal rule/ grammatical interpretation: interpretation matches literal meaning of word
• mischief rule/ legal intent: interpretation meets the intent of the author
• golden rule: personal interpretation of the rule

Question 5

Positive Right

Answer 5

impose a positive duty on someone else

Question 6

Negative Right

Answer 6

impose a negative duty on someone else

Question 7

Reasoning

Answer 7

Case-based reasoning: if there was a very similar case before, that can be used to determine new case

Analogy: rule is not applicable to a case but has many similarities to another case -> seems desirable to apply rule by analogy

Applicability: if the facts of the case satisfy the condition of a rule, after classification

Question 8

Conflict of rules

Answer 8

lex superior: superior rule overrules inferior rule
lex posterior: newer rule overrules older rule
lex specialis: more specific rule overrules general rule