Law as Philosophy How Reasoning Shapes Legal Reality

In this book, probabilism is presented from the perspective of the humanities, as based upon imaginative reality, and is connected to the two concepts of history and persuasion. Law is not about truth, but about probability. Lacking a full knowledge of the facts, jurists support the gaps in their argumentation with their own imagination. Thus, the legal discourse is a hybrid of factual reality and what is called here ‘imaginative reality’. Yet legal probabilism is not only about ‘trials by mathematics’. Law is an historical phenomenon influenced by several factors. Why do legal norms change so little through the millennia? Because of the metaphorical and analogical nature of legal reasoning. The significance of legal words expands constantly following historical developments and the jurist’s need to persuade the addressee. The role of imagination is such that the jurist becomes a jurist-poet. In Greek, poietes means creator. The jurist-poet creates an inter-subjective, shared reality that is constructed anew in each interaction with other parties. The persona of the jurist-poet is developed here from an historical, theoretical and philosophical perspective. Starting from Roman law and the influence of Greek philosophy, its evolution is followed through the centuries until modern times focussing on the theory of imagination applied in Italian Humanism (e.g. Salutati and Vico) and on German existentialism (e.g. Nietzsche, Heidegger and Grassi).