This class will engage students in a reflection on the specific components of legal reasoning and argument. It will provide an introduction to both legal theory and legal technique and encourage students to develop critical thinking on certain substantive points of law, such as constitutional or contract law. The course will further provide elements of comparative in order to understand the terms in which law (lawyers) think about significant societal issues in different context. The format of the course is interactive and students are expected to participate of the discussions. A debate will be organized during the semester where the different techniques will be put in place.
Pratyush Nath UPRETI,Richard MARCON
English
Autumn 2020-2021
Requirements and grading:
- Final exam: 1/3 of final course mark (open book exam)
- Tutorial: 2/3 of final course mark (to be specified)
Lecture course (24 hours) with tutorials (24 hours)
A. Introduction
Session 1: What does it mean to think like a lawyer? The specific purpose of legal reasoning.
B. Perspectives and Traditions
Session 2: Classic and Contemporary Perspectives: Naturalism; positivisms; Formalism; Realism; Critical Legal Studies; Feminism and Law and Economics.
Session 3: the Common Law tradition, the Civil Law tradition and Islamic Law.
C. Basic Legal Reasoning
Session 4: Identifying the applicable law: characterizing the issue. Applicable law in contract law. Applicable law in Private International Law. Applicable law in international litigation
Session 5: Statutory Interpretation. The text, intention or purpose? Methods of interpretation; interpretation of human right treaties.
Session 6: The Precedent and Analogies. Parts to a decision; the role of precedent in Common and Civil law. Separate opinions and dissents. Overruling and distinguishing. Analogical reasoning. Distinguishing analogies from precedent. Analogical reasoning in Islamic law.
Session 7: Facts. Distinguishing facts and law. Law, facts, evidence. Admissible and inadmissible evidence. Presumptions. The burden and standard of proof.
Session 8: Judicial Discretion. What do we mean by judicial discretion? The Noble Dream. If discretion is bound, which are the constraints? Legal principles in adjudication, the doctrine of abuse of process.
D. Contextual Legal Reasoning
Session 9: Legal Principles in International Adjudication. Adapting principles of foro domestico. The doctrine of abuse of rights.
Session 10: Contracts: offer and acceptance (different theories), consideration, detrimental reliance and contractual promises, obligations of result and best efforts, contractual liability.
Session 11: Torts and extra-contractual liability: intentional tort, negligence (injury, causation, breach and duty) and strict liability. Different types of extra-contractual obligations and the obligation to repair.
E. Law and Justice
Session 12: Distributive, procedural, retributive and restorative justice . Predictive, random and impartial justice. Human rights: the last utopia?
G. Samuel, A Short Introduction to the Common Law, Edward Elgar, 2013.
J. H. Merryman and R. Pérez-Perdomo, The Civil Law Tradition – An Introduction to the Legal Systems of Europe and Latin Amerca, Stanford University Press; 3 edition (May 21, 2007)