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31 Int'l J. Semiotics L. 1 (2018)

handle is hein.journals/intjsemi31 and id is 1 raw text is: Int J Semiot Law (2018) 31:1-19 CrssMark https://doi.org/10.1007/si1196-017-9516-y Knowledge Construction in Legal Reasoning: A Three Stage Model of Law's Evolution in Practical Discourse Olaf Tans'- Published online: 17 July 2017 © Springer Science+Business Media B.V. 2017 Abstract Seeing that socio-legal theory has produced a number of compelling grand theories about law's development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. Keywords Legal reasoning - Knowledge construction - Rule-guided decision-making - Defeasibility - Evolution of law - Autopoiesis 1 Introduction Socio-legal theory has produced a variety of compelling accounts of law's development as a body of knowledge. Max Weber famously contended that law emerges and develops in an interplay between formal and substantive rationality. On the one hand, he argued that modern law is characterized by devotion to generalization and systemati- zation, that is, by the picture of law as a logically organized set of applicable rules. On ® Olaf Tans o.j.tans@auc.nl Department of Social Sciences, Amsterdam University College, Science Park 113, 1098 XG Amsterdam, The Netherlands 2 Centre for the Politics of Transnational Law (CePTL), Faculty of Law, VU University Amsterdam, De Boelelaan 1105, 1081 HV Amsterdam, The Netherlands I_ Springer

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