Демонстративные аргументы в логике устранения одной юридической коллизии

Философия. Журнал Высшей школы экономики. 2024. Т. 8. № 1. С. 67–80.

Lisanyuk E.

Submitted: Dec. 18, 2023. Reviewed: Dec. 30, 2023. Accepted: Jan. 11, 2024. Abstract: Based on modern approaches to defining critical thinking, we identify three of its properties — thoroughness, proactivity and heuristic suitability, associated with solving preference tasks, in contrast to demonstrative argumentation in solving logical tasks. Through the example of eliminating a legal collision in the case of “Women and the Jury”, caused by an axiological legal gap, we show that despite the fact that the abilities of critical thinking, resulting from its three properties, contribute to the detection and elimination of conflict, these abilities, taken by themselves, without knowledge of strict methods and techniques for their application, are insufficient for solving the task of eliminating collisions together with the legal gaps or inconsistency that have been causing them. We use the methodology of normative systems, based on deontic logic and set theory and proposed by Carlos Alchourron and Eugenio Bulygin in the treatise “Normative Systems”. With its help, we analyze the decision of the Constitutional Court of the Russian Federation in the case “Women and the Jury”, which supported the complaint filed by a female accused of murder against the refusal to consider her case by the jury. The refusal complied with the norms regarding the composition of the court and the jurisdiction of cases that require considering the gender and age of the accused and did not comply with the norms of the Constitution of the Russian Federation on equality of rights of access to justice regardless of gender and age. The logical reconstruction allows, through an investigation into the correctness and validity of reasoning, to assess the effectiveness and adequacy of the discretionary decision to eliminate an axiological gap and demonstrates the importance of studying logic by jurists and legal theorists.

Keywords: критическое мышление, аргументация, нормативные системы, деонтическая логика, пробел в праве