By Aleksander Peczenik (auth.)
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Extra resources for On Law and Reason
2. On the other hand, courts and authorities must use special interpretation methods to adapt legal norms to moral requirements. This duty, too, affects the concepts. One can understand the concept of legal reasoning in a way supporting the following theses: If decisions in a given kind of cases are made without attention to the established juristic tradition of reasoning, they are, by definition, not legal. If they are made without attention to moral considerations, they are, by definition, not legal, either.
One must consider the fact that, in Sweden, the maximal punishment for the latter crime is the same as for robbery. On the other hand, one may pay attention to the fact that the ordinary victim of such a crime perceives the situation as nothing less but a robbery. And so on. 2. Interpretative Problems - Ambiguity. Vagueness and Value-Openess A lawyer must make value judgments, inter alia in order to make a choice between different interpretations of a statute, a precedent, another source of the law, a contract etc.
One has a choice between two methods. Assume that a witness says he saw that X happened. The "theme-of-proof method" estimates probabil ity that X happened. The "value-of-proof method", on the other hand, estimates probability that X caused the observation the witness made and reported. It thus pays attention only to the cases in which the witness actually saw X, not merely guessed that X happened. Complex questions concern also chains of "evidentiary facts", contrary evidence etc. Cf. ; Stening 1975 and Ekelof 1982, 7 ff.