uu.seUppsala University Publications
Change search
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf
On Behaviour-guidance, Legal Reasons, and The Ascertainment of the Truth of the Quaestio Facti
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Arts, Department of Philosophy.
(English)Manuscript (preprint) (Other academic)
Abstract [en]

In this essay, I advance two objections to the ‘behaviour-guidance’ theory that claims that for the law to motivate the behaviour of the governed, legal systems ought to ascertain the truth of the quaestio facti.  The first objection is based on what can cause the psychological state of being motivated to comply with the content of the law. The core claim is that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection is based on the indeterminacy of law. It claims that if indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, then the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Thus, the psychological state of compliance cannot be produced. I then provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti

Keywords [en]
law - truth - interpretation - legal interpretation - indeterminacy - normativity
National Category
Law
Research subject
Philosophy
Identifiers
URN: urn:nbn:se:uu:diva-402330OAI: oai:DiVA.org:uu-402330DiVA, id: diva2:1385374
Available from: 2020-01-14 Created: 2020-01-14 Last updated: 2020-01-21
In thesis
1. Legal Interpretation and Standards of Proof: Essays in Philosophy of Law and Evidence Law Theory
Open this publication in new window or tab >>Legal Interpretation and Standards of Proof: Essays in Philosophy of Law and Evidence Law Theory
2020 (English)Doctoral thesis, comprehensive summary (Other academic)
Abstract [en]

This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers:

In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. 

In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour-guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing.

In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules.

In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. 

Place, publisher, year, edition, pages
Uppsala: Department of Philosophy, 2020. p. 21
Keywords
law, legal interpretation, evidence, legal evidence, proof, philosophy of law, legal theory, general jurisprudence, standards of proof, philosophy, legal reasoning, evidential reasoning
National Category
Law Philosophy
Research subject
Philosophy
Identifiers
urn:nbn:se:uu:diva-402713 (URN)978-91-506-2804-3 (ISBN)
Public defence
2020-03-13, sal IV, Universitetshuset, Akademigatan 3, Uppsala, 02:15 (English)
Opponent
Supervisors
Projects
civis sum
Funder
Knut and Alice Wallenberg Foundation, Dnr KAW 2014.0133
Available from: 2020-02-20 Created: 2020-01-21 Last updated: 2020-02-20

Open Access in DiVA

No full text in DiVA

Authority records BETA

Reyes, Sebastián

Search in DiVA

By author/editor
Reyes, Sebastián
By organisation
Department of Philosophy
Law

Search outside of DiVA

GoogleGoogle Scholar

urn-nbn

Altmetric score

urn-nbn
Total: 7 hits
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf