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Legal classification and judicial syllogism

Mioara-Ketty Guiu ()
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Mioara-Ketty Guiu: associate scientific researcher of the “Acad. Andrei Radulescu” Legal Research Institute of the Romanian Academy

Juridical Tribune (Tribuna Juridica), 2018, vol. 8, issue Special, 139-147

Abstract: Particularly in criminal matters, the judicial errors register an alarming increase, so much so that it not only affects the destiny of the wrongfully sentenced or the groups that they belong to, but also the destiny of the entire society. A cause of this situation resides, from what it seems, in the lack of thorough legal studies with regards to the logical operations which should stand at the base of the decision that an actual act does constitute a certain offence, with a well specified “classification” or “qualification”. The present paper tries to actuate debates on the matter, which has been wrongfully neglected. With this purpose, the author begins from a rather old idea, but insufficiently known, and that is that any court sentence is the result of two types of judicial syllogisms: qualificative and decisional. Elaborating this idea, the author observes a series of other aspects, such as: the fact that, in criminal matters, the qualificative syllogisms serve to establish the legal classification, while the decisional syllogisms serve to establish the sentence; the fact that, in criminal qualificative syllogisms, the subject is always the actual act, and the predicate is a criminal concept (the notion of an offence); the fact that the legal classification is not an “operation”, as is claimed by many authors, but a conclusion, specifically to a qualificative syllogism etc.

Keywords: actual act; act-species; concept; syllogism; judicial error. (search for similar items in EconPapers)
JEL-codes: K10 K14 (search for similar items in EconPapers)
Date: 2018
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