Saturday, March 09, 2013

Sociological Jurisprudence, Logical Jurisprudence, and Factual Proof


In years past I have not been much interested in sociological jurisprudence. It seemed to me that talk about social forces, social interests, social preferences, etc., as a basis for legal interpretation (or lawmaking) lacks theoretical rigor. But I now find that I am somewhat attracted to the idea of some kind of sociological jurisprudence when I ponder the "logic(s)" of factual inference and proof in legal settings.

That's in part because I think (contrary to some or much rational choice theory?) it does make sense -- and it is necessary -- to think and talk about the "purposes," "functions," "interests," "preferences," etc. of societies and parts of societies (including systems of legal proof) and that it is not enough to conceive of the "interests" and "preferences" etc. of social groups as being nothing more than an aggregation of the interests, preferences, etc., of the individual members of such social groups.

I also think a connection must be made between logic(s) in the abstract and the logic(s) that is (are) in actual use in societies and their parts: we need to look in part to how lawyers, judges, jurors, etc. actually reason and deliberate about matters such as evidence and facts. But, if possible, an attempt to link logic with actual legal practice, or conventional legal practice, should be done in a way that tends to preserve (so to speak) the logical character(s) of the method(s) of reasoning and deliberation that is (are) customarily used in investigation and proof in trials and other such legal settings. Is this possible? I propose to find out. (More accurately said, Joannes Pilapil and I will try to find out.) Hint: I suspect it is possible.


 

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