Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the (...) final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values. (shrink)
In this contribution the prototypical argumentative patterns are discussed in which pragmatic argumentation is used in the context of legal justification in hard cases. First, the function and implementation of pragmatic argumentation in prototypical argumentative patterns in legal justification are addressed. The dialectical function of the different parts of the complex argumentation are explained by characterizing them as argumentative moves that are put forward in reaction to certain forms of critique. Then, on the basis of an exemplary case, the famous (...) Holy Trinity case, the way in which the U.S. Supreme Court uses pragmatic argumentation in this case is discussed by showing how the court instantiates general prototypical argumentative patterns in light of the institutional preconditions of the justification in the context of the specific case. (shrink)
This paper answers the question how pragmatic argumentation which occurs in a legal context, can be analyzed and evaluated adequately. First, the author surveys various ideas taken from argumentation theory and legal theory on the analysis and evaluation of pragmatic argumentation. Then, on the basis of these ideas, she develops a pragma-dialectical instrument for analyzing and evaluating pragmatic argumentation in a legal context. Finally she demonstrates how this instrument can be used by giving an exemplary analysis and evaluation of pragmatic (...) argumentation in a decision of the Dutch Supreme Court. (shrink)
In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from legal practice, (...) it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand. (shrink)
The author gives an analysis of the strategic manoeuvring in the justification of legal decisions from a pragma-dialectical perspective by showing how a judge tries to reconcile dialectical and rhetorical aims. On the basis of an analysis and evaluation of the argumentation given by the US Supreme Court in the famous Holy Trinity case, it is shown how in a case in which the judge wants to make an exception to a legal rule for the concrete case tries to meet (...) the dialectical reasonableness norm by seeing to it that his standpoint is sufficiently defended according to the requirements of the burden of proof of a judge in a rational critical discussion and how he tries at the same time to be rhetorically convincing for the legal audience by presenting the decision as a choice that is in line with the argumentation schemes and starting points that can be considered as accepted by the legal community in the US and by the US community as a whole. (shrink)
In this article the author develops a framework for a pragma-dialectical reconstruction of teleological argumentation in a legal context. Ideas taken from legal theory are integrated in a pragma-dialectical model for analyzing and evaluating argumentation, thus providing a more systematic and elaborate framework for assessing the quality of teleological arguments in a legal context. Teleological argumentation in a legal context is approached as a specific form of pragmatic argumentation. The legal criteria that are relevant for the evaluation of teleological argumentation (...) are discussed and translated in terms of critical questions that are relevant for the evaluation of the various forms of teleological argumentation. (shrink)
In legal theory, it is widely claimed that decisions in hard cases are based on weighing and balancing. However no reconstructions are given of the deep structure of the complex argumentation underlying the justification of these decisions. The author develops a model for the analysis of weighing and balancing of arguments in the justification of judicial decisions that are based on teleological-evaluative considerations. The justification is reconstructed as a complex argumentation that consists of different levels of argumentation and it is (...) explained how these levels of argumentation relate to the burden of proof of a judge who gives a decision that is based on a weighing and balancing in which teleological-evaluative considerations are invoked. (shrink)
In this contribution the author develops an argumentation model for the reconstruction of weighing and balancing on the basis of teleological-evaluative considerations. The model is intended as a heuristic and critical tool for the rational reconstruction of the justification of judicial decisions. From the perspective of a rational discussion, it makes explicit the choices underlying the weighing and balancing on the basis of goals and values so that they can be made explicit and submitted to rational critique.
In this paper, the author describes a dialogical approach tolegal argumentation from the perspective of argumentationtheory. In a pragma-dialectical approach of legalargumentation, the argumentation is considered to be part of acritical discussion aimed at the rational resolution of thedispute. The author describes how a pragma-dialecticalanalysis and evaluation of legal argumentation can be carriedout.
In this contribution I characterize the role of the judge in the context of the argumentative activity of legal proceeding. I describe the role of the judge from a pragma-dialectical perspective and explain in which way this role promotes a rational resolution of the dispute. I specify how a critical discussion in accordance with the ideal model is implemented in legal procedure to accomplish the institutional point, a resolution of the dispute in accordance with the Rule of Law.
This paper argues that Habermas's conception of the rationality of moral and legal discussions has import for argumentation theorists interested in the rationality of public deliberations in politics and law. I begin with a survey of Haber mas's discourse theory and his criteria of rationality for moral and legal discourse. I then explain why, in his view, the forms of rational discourse in morality and law complement each other. My aim is to show how Habermas's account of this complementary relationship (...) opens up fruitful perspectives for argumentation theory. Specifically, his thought can stimulate research regarding, on the one hand, the ways in which legal procedures provide for presumptively rational resolutions of moral disputes and, on the other hand, the applicability of ideal argumentation-theoretic models to the legal field. I conclude with a proposal for integrating Habermas's ideas in a research program for legal argumentation. (shrink)
In this contribution I identify prototypical patterns in the justification of judicial decisions. From a pragma-dialectical perspective, I explain the nature and rationale for the argumentative patterns from the perspective of the institutional function of legal justification and I distinguish different argumentative patterns in clear cases and hard cases in the justification of judicial decisions.
La misma serie editorial en la que aparecieron obras de Robert Walter, Hasso Höfman, Arthur Kaufmann o Robert Alexy ofrece ahora a los lectores interesados por el mundo de la argumentación jurídica una esmerada traducción de la obra de Eveline T. Feteris, Fundamentals of Legal Argumentation, editada por Kluwer Academic en 1999. En los doce capítulos que componen esta obra, Feteris consigue mostrar de manera a un tiempo sustantiva y concisa los problemas teóricos más importantes de las (...) distintas tradiciones que componen el ámbito de la argumentación jurídica. Sobre la base de esta exposición de naturaleza histórica, la profesora holandesa examina con detalle las teorías de la justificación de las decisiones judiciales sin perder de vista el hilo realmente vertebrador de esta investigación, a saber, la descripción de los componentes teóricos implícitos en las distintas concepciones sobre la argumentación jurídica. (shrink)
This essay discusses the developments and trends of research in legalargumentation of the last 25 years. The essay starts with a survey of thevarious approaches which can be distinguished: the logical approach, therhetorical approach, and the dialogical approach. Then it identifies varioustopics in the research, which constitute the various components of aresearch programme of legal argumentation: the philosophical component, thetheoretical component, the reconstruction component, the empiricalcomponent, and the practical component. It concludes with a discussion ofthe main trends in the research (...) of the last 25 years. (shrink)