Presentation on theme: "INTRODUCTION TO LAW. Legal inference is a part of legal exegesis. It’s a process of inferring one norm which is not explicitly formulated by lawgiver."— Presentation transcript:
INTRODUCTION TO LAW
Legal inference is a part of legal exegesis. It’s a process of inferring one norm which is not explicitly formulated by lawgiver on the basis of another one which is explicitly formulated by the legislator. Rules of inference are used by lawyers to determine the validity of norms based on other norms.
An explanation of the abbreviations used in this part: N1 = norm which is explicitly expressed in the legal text; N2 = norm which is being inferred from N1.
1. Logical inference; 2. Instrumental inference: a) Instrumental order rule, b) Instrumental prohibit rule; 3. Axiological inference: a) A simili: - Analogia legis, - Analogia iuris, b) A contrario; c) A fortiori: - A maiori ad minus, - A minori ad maius.
Is based on logical relations between the scope of particular elements of norm. 3 conditions for logical inference: 1) The scope of addressees of N2 fulfills the scope of addressees of N1. 2) The scope of application of N2 fulfills the scope of application of N1. 3) a. Execution of action ordered by N1 fulfills the action ordered by N2, or b. Execution of action prohibited by N2 fulfills the action prohibited by N1.
It is from the purpose to means argumentation. Claiming that N2 is valid by proving that it is causally necessary for the performance of N1. It refers to praxeological rationality, cause-effect relations.
What is a necessary condition for application of the norm is prescribed. N1 orders S1 to be done. S2 is necessary for S1 to exist. Result: N2 ordering to do S2 is obligatory.
Prohibited is what is a sufficient condition form branching the norm. N1 orders S1 to be done. S2 makes S1 impossible to exist. Result: N2 prohibiting S2 is recognized as valid.
Claiming that N2 is valid by reffering to the axiological rationality of lawgiver, relation on the level of ratio legis of both norms.
State of affairs S1 is not regulated. S1 is similar in relevant respect to S2. S2 is regulated by N1 which binds specific legal consequences with S2. There sholud be a valid norm N2, which binds the same or similar with S1.
N1, N2,… NX prefer value X to value Y, then NX+1 preffering X to Y can be recognized as valid or the general principle preffering value X to value Y can be dinstinguished, than NX+1 preffering X would also be recognized as valid.
Is prohibited: - On exceptions, - On lex specialis rule, - In criminal law to disadvantage of the accused, - In tax law to disadvantage of the taxpayer.
Is an inference from the contrary. It is the reverse of analogia legis. State of affairs S2 is not regulated. S2 is not identical to S1, although is might be similar in some important respectes. S1 is regulated by norm N1 which binds specific legal consequences with S1. Conclusion: one should not bind the same consequences with S2.
General rule: if N1 is binding, than N2 with the stronger axiological justification than N1 is also binding.
If N1 imposes or permits conductions to do more arduous duties, then N2 imposing less arduous duties is valid.
If N1 prohibits the violation of legally protected right in the narrower scope, then N2 prohibiting to breach it in more extensive scope is valid.