Legal Argumentation

This chapter discusses slippery slope arguments that are used in the context of common-law precedent. The slippery slope argument is often treated as a fallacy. Nonetheless, using or answering slippery slope worries in legal decision-making is conspicuously common. And not only that: several authors have remarked that slippery slope arguments can often be valid, even strong, in the context of legal precedent. In this chapter, I investigate why this should be so. It is argued that there is a special type (...) of slippery slope argument, the precedent slippery slope. Understanding its mechanism reveals why slippery slopes are so strong in the context of precedent. (shrink)

Critical review of "The Philosophy of Legal Change," edited by Maciej Chmieliński and Michał Rupniewski, the first volume on its subject matter, with some general remarks on the philosophical methodology of conceptualising legal change.

This paper proposes an argumentation-based procedure for legal interpretation, by reinterpreting the traditional canons of textual interpretation in terms of argumentation schemes, which are then classified, formalized, and represented through argument visualization and evaluation tools. The problem of statutory interpretation is framed as one of weighing contested interpretations as pro and con arguments. The paper builds an interpretation procedure by formulating a set of argumentation schemes that can be used to comparatively evaluate the types of arguments used in cases of (...) contested statutory interpretation in law. A simplified version of the Carneades Argumentation System is applied in a case analysis showing how the procedure works. A logical model for statutory interpretation is finally presented, covering pro-tanto and all-things-considered interpretive conclusions. -/- . (shrink)

Das hier zu besprechende Buch 'Rhetorik für Plädoyer und forensischen Streit' von T. Lübbig kündigt einen Beitrag im Bereich ‚Rhetorik und Recht‘ an, und dabei insbesondere eine Untersuchung zur Rhetorik in der juristischen Praxis.

The article describes the potential of abductive legal reasoning as a means of systematically exploring the role of inferences within legal reasoning. Starting out from the structures of abduction as originally presented by Peirce in his four‐horsemen example, the author points to the fact that Peirce actually employed a hypothesis that targeted an institutional fact. Hence the abductive inference has a great potential for categorising new phenomena under norms, yet it is undertheorised within the field of law as compared to (...) other fields of science. The article presents the idea of comparison in the frame of “double abduction” as an important feature of legal reasoning. (shrink)

Statutory interpretation involves the reconstruction of the meaning of a legal statement when it cannot be considered as accepted or granted. This phenomenon needs to be considered not only from the legal and linguistic perspective, but also from the argumentative one - which focuses on the strategies for defending a controversial or doubtful viewpoint. This book draws upon linguistics, legal theory, computing, and dialectics to present an argumentation-based approach to statutory interpretation. By translating and summarizing the existing legal interpretative canons (...) into eleven patterns of natural arguments - called argumentation schemes - the authors offer a system of argumentation strategies for developing, defending, assessing, and attacking an interpretation. Illustrated through major cases from both common and civil law, this methodology is summarized in diagrams and maps for application to computer sciences. These visuals help make the structures, strategies, and vulnerabilities of legal reasoning accessible to both legal professionals and laypeople. (shrink)

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

This paper traces the evolution of the concept of presumption from a subordinate part of the Roman law to a central feature of legal disputations in medieval law. Special attention will be given to the second edition of the Libellus Pylei Disputato rius by Pilius of Medicina, and to the anonymous Tractatus de Praesumptionibus. My analysis will emphasize elements of these developments useful in the renewed discussion about the role of presumptions in argumentation stimulate d particularly by Richard Gaskins' Burdens (...) of Proof in Modern Discourse, highlighting the paradigmatic significance of rhetorical manipulations of burdens of proof in legal reasoning. (shrink)

The Logic of Legal Requirements. Essays on Defeasibility, edited by Jordi Ferrer Beltrán and Giovanni Battista Ratti, and published by Oxford University Press in 2012, is a very much welcome contribution to one of the most discussed topics in the contemporary legal theory and philosophy. Defeasibility is connected to many essential issues such as the nature of legal reasoning, the structure of legal norms and legal system, the concept of legal validity, as well as the mechanisms and limits of..

In this paper a theoretical definition that helps to explain how the logical structure of legal presumptions is constructed by applying the Carneades model of argumentation developed in artificial intelligence. Using this model, it is shown how presumptions work as devices used in evidentiary reasoning in law in the event of a lack of evidence to assist a chain of reasoning to move forward to prove or disprove a claim. It is shown how presumptions work as practical devices that may (...) be useful in cases in which there is insufficient evidence to prove the claim to an appropriate standard of proof. (shrink)

Defeasible rules are said to allow for the following two-staged sequence, viz., that p → q and yet p & r → not-q. This is puzzling because in the logic of conditionals the sufficiency of p for q cannot normally be undermined if one adds to the antecedent a further proposition r. Critics argue that the better approach to comprehending defeasibility is explicitly to represent the limiting factor r in a single-stage articulation of the rule, viz., as p & not-r (...) → q. This is a more complete statement of the rule; where the old rule announced, confidently and without qualification, that in circumstances or class of cases p consequence q follows, the new rule admits from the outset that q only follows if we add the qualifier that limits the antecedent circumstances to the smaller class of cases p & not-r. This is not only more complete, the critics argue, it is also a more accurate or truthful statement of the rule. The rule p → q, articulated at the first stage of the defeasible process, is only a pretender encountered along the way to this more complete truth. In this paper I show how, and why, contrary to the critics, the process of private law adjudication supports the multi-staged structure and representation of defeasible legal rules. What matters when one party makes a claim against another party is not so much that the claim is true (or even that it is advanced as a legitimate claim under the rule that is most likely to be true), but rather that the claim is of the sort that the party can justifiably say is true. The latter, at least, is what carries the plaintiff past the initial burden of proof, and what calls for the defendant to reply if the plaintiff is not to carry the day. I illustrate the argument by way of the court’s reluctance in a tort case to entertain a purely statistical basis for a plaintiff’s claim that the defendant has caused her injury. Rather, the court will insist on direct evidence that appears to arise out of the particular circumstances of the case as the plaintiff alleges them to be, and even if, as a purely statistical matter, the latter sort of claim is less likely to be true than the claim grounded in pure statistical likelihood. I relate this argument for defeasible rules (and against rules that are more truthful) to some important arguments offered by the philosopher Stephen Darwall in his recent book The Second Person Viewpoint. Private law’s defeasible rules, I argue, capture the special respect (and interpersonal accountability) that attaches only to rights arising out of “second personal” claiming (and counterclaiming) and which are not realizable merely as a matter of “third personal” (moral) truth. (shrink)

This book provides a systematic analysis of many common argumentation schemes and a compendium of 96 schemes. The study of these schemes, or forms of argument that capture stereotypical patterns of human reasoning, is at the core of argumentation research. Surveying all aspects of argumentation schemes from the ground up, the book takes the reader from the elementary exposition in the first chapter to the latest state of the art in the research efforts to formalize and classify the schemes, outlined (...) in the last chapter. It provides a systematic and comprehensive account, with notation suitable for computational applications that increasingly make use of argumentation schemes. (shrink)

In this article we discuss the so-called cantilever argument, used by Joseph Carens to establish a human right to global freedom of movement. First of all, we criticise Carens’s classification of the argument as both an “analogy” and a “logical extension”. Comparing the cantilever argument with Carens’s popular feudalism analogy suggests understanding it solely as an extension, but certainly not as a “logical” one. Finally, we sketch out whether, by means of the cantilever, he succeeds in shifting the burden of (...) proof to the opponents of such a human right. (shrink)

The purpose of this paper is to analyze the structure and the defeasibility conditions of argument from analogy, addressing the issues of determining the nature of the comparison underlying the analogy and the types of inferences justifying the conclusion. In the dialectical tradition, different forms of similarity were distinguished and related to the possible inferences that can be drawn from them. The kinds of similarity can be divided into four categories, depending on whether they represent fundamental semantic features of the (...) terms of the comparison or non-semantic ones, indicating possible characteristics of the referents. Such distinct types of similarity characterize different kinds of analogical arguments, all based on a similar general structure, in which a common genus is abstracted. Depending on the nature of the abstracted common feature, different rules of inference will apply, guaranteeing the attribution of the analogical predicate to the genus and to the primary subject. This analysis of similarity and the relationship thereof with the rules of inference allows a deeper investigation of the defeasibility conditions. (shrink)

Legal Reason describes and explains the process of analogical reasoning, which is the distinctive feature of legal argument. It challenges the prevailing view, urged by Edward Levi, Cass Sunstein, Richard Posner and others, which regards analogical reasoning as logically flawed or as a defective form of deductive reasoning. It shows that analogical reasoning in the law is the same as the reasoning used by all of us routinely in everyday life and that it is a valid form of reasoning derived (...) from the innate human capacity to recognize the general in the particular, on which thought itself depends. The use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. Written for scholars as well as students and persons generally who are interested in law, Legal Reason is written in clear, accessible prose, with many examples drawn from the law and from everyday experience. (shrink)

This thesis addresses two enduring issues in legal theory-- rationality and its association with rule of law values--by offering detailed models of two patterns of legal reasoning. One is reasoning by analogy. The other is the inference process that legal reasoners use when they defer epistemically to scientific experts in the course of reaching legal decisions. Discussions in both chapters reveal that the inference pattern known as "abduction" is a deeply important element of many legal inferences, including analogy and epistemic (...) deference to experts--something that has been largely unrecognized in legal theory. After presenting a detailed model of analogy, Chapter 1 argues that legal reasoning by analogy, like analogical argument in logic, mathematics, and the natural sciences, possesses a great deal of rational force when properly executed. Chapter 2 investigates the reasoning process by which non-expert legal reasoners defer epistemically to the judgments of scientists. It presents five main conclusions or explanations. Every practical syllogism actually consists of two distinct chains of inference, and what is usually considered in writings on practical reasoning to be the minor premise of a practical syllogism is actually the conclusion of a separate chain of argument. When a practical reasoner defers epistemically to a theoretical expert, this separate chain of argument has a special structure, which is modeled in Chapter 2. The non-expert legal reasoner must always make a prescriptive practical judgment about the standard of epistemic appraisal and level of epistemic confidence that the reasoner requires of scientific evidence before it may be relied upon in reaching a legal decision. Legal systems should be committed to an emergent rule of law ideal identified and referred to as "intellectual due process" which condemns epistemically arbitrary reasoning processes insofar as they play a role in legal decisionmaking. Since non-arbitrariness is a necessary condition of both epistemic and legal legitimacy, we have compelling reason to doubt that the non-arbitrariness condition can be met when non-experts defer epistemically to scientific experts. (shrink)

A meticulous examination of the logical and axiological principles of analogical inference in legal reasoning. The first part presents an elementary but useful survey of traditional and modern logical analyses of analogy and analogical inference. In the second part, these concepts are examined in their juridical applications. Much is made of the conclusion that analogical inference cannot be rendered "binding" by logical considerations alone; to make up for this in legal reasoning, axiological principles must be employed.--L. K. B.

Lloyd Weinreb’s Legal Reason: The Use of Analogy in Legal Argument is the latest contribution to a familiar debate. Since the Second World War, a recurrent theme of Anglo–American jurisprudence has been the desire to explain and justify the process of courtroom adjudication, especially at appellate level. Such explanation and justification has proved extraordinarily elusive. According to the doctrine of separation of powers, the functions of the judiciary must differ from those of the legislature and executive. We therefore need to (...) know the scope of power of each branch of government. Yet, at the same time, judges must be able to declare any inappropriate acts or decisions of either the executive or legislature to be unlawful, illegal and/or unconstitutional. Such explanation and justification is thus tasked with showing how, in a representative democracy, an unelected judiciary stands as a bulwark against tyranny — even if, as in the early years of German fascism, it is a tyranny of the majority — without at the same time causing it to usurp the legitimate functions of the elected representatives of the people. In other words, a theory of judicial adjudication is required which both denies the judiciary any power to trespass on the legitimate territory of the other branches of government, while still permitting — nay, requiring — judges to hold the legislature and executive to account where the political process is unable to do so. This is, in short, the conundrum of the “rule of law.”. (shrink)

This paper applies recent work on scripts and stories developed as tools of evidential reasoning in artificial intelligence to model the use of argument from analogy as a rhetorical device of persuasion. The example studied is Gerry Spence’s closing argument in the case of Silkwood v. Kerr-McGee Corporation, said to be the most persuasive closing argument ever used in an American trial. It is shown using this example how argument from analogy is based on a similarity premise where similarity between (...) two cases is modeled using the device of a story scheme from the hybrid theory of legal evidential reasoning (Bex in Arguments, stories and criminal evidence: a formal hybrid theory. Springer, Dordrecht 2011). It is shown how the rhetorical strategy of Spence’s argumentation in the closing argument interweaves argument from analogy with explanation through three levels. (shrink)

Legal reasoning is not the same as the reasoning in mathematics or the physical sciences. It is like them. Specifying the likeness in more detail, and deciding whether there is more likeness than unlikeness, are the kinds of tasks that legal reasoning is better adapted to do than mathematical or scientific reasoning.

Argument from analogy is a common and formidable form of reasoning in law and in everyday conversation. Although there is substantial literature on the subject, according to a recent survey ( Juthe 2005) there is little fundamental agreement on what form the argument should take, or on how it should be evaluated. Th e lack of conformity, no doubt, stems from the complexity and multiplicity of forms taken by arguments that fall under the umbrella of analogical reasoning in argumentation, dialectical (...) studies, and law. Modeling arguments with argumentation schemes has proven useful in attempts to refine the analyst’s understanding of not only the logical structures that shape the backbone of the argument itself, but also the logical underpinning of strategies for evaluating it, strategies based on the semantic categories of genus and relevance. By clarifying the distinction between argument from example and argument from analogy, it is possible to advance a useful proposal for the treatment of argument from analogy in law. (shrink)

This paper identifies a type of multi-source (case-based) reasoning and differentiates it from other types of analogical reasoning. Work in cognitive science on mental space mapping or conceptual blending is used to better understand this type of reasoning. The type of argument featured herein will be shown to be a kind of source-blended argument. While it possesses some similarities to traditionally conceived analogical arguments, there are important differences as well. The triple contract (a key development in the usury debates of (...) the fifteenth and sixteenth centuries) will be shown to make use of source-blended arguments. (shrink)

Many legal theorists have argued that analogical reasoning is merely rule-following in which the general rule is not stated. Lloyd Weinreb's tries to defend the practice of analogical reasoning on its own terms. He does so by giving examples of the way people use analogical reasoning, both in legal and non-legal contexts, as a means for deciding how to act in particular circumstances. By itself such evidence does not support Weinreb's case, because to justify analogy he must show that analogical (...) reasoning can somehow lead us to correct answers. Moreover, his evidence does nothing to challenge the claim that analogical reasoning is simply following suppressed rules.I try to give Weinreb a helping hand. I use the data he mentions that people actually reason by analogy as a starting point for a novel justificatory account of analogical reasoning based on the notion of reliable results: a process of reasoning is reliable, and therefore reliance on it justified, if it tends to generate correct results. This requires explaining what counts as correct results in law, which is a question of political philosophy. I show that the most fundamental condition for the acceptability of analogical reasoning is that the standard of legal correctness is not determined by principles derived by Reason (as is the approach in the civil law tradition) but rather by a standard of acceptance (more prevalent in the common law tradition). Nonetheless, I argue that there two other conditions - shared social values and skepticism about the possibility of discovering the right normative foundations to legal questions - that together have to obtain in order to justify reliance on analogical reasoning. Since that in a modern society it is unlikely that these two conditions are not likely to obtain, I conclude that even this sympathetic reconstruction of Weinreb's argument ultimately fails. (shrink)

Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...) arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms. (shrink)

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

Many jurisdictions prohibit or severely restrict the use of evidence about a defendant’s character to prove legal culpability. Situationists, who argue that conduct is largely determined by situational features rather than by character, can easily defend this prohibition. According to situationism, character evidence is misleading or paltry. -/- Proscriptions on character evidence seem harder to justify, however, on virtue ethical accounts. It appears that excluding character evidence either denies the centrality of character for explaining conduct—the situationist position—or omits probative evidence. (...) Situationism is, after all, presented as antithetical to virtue ethics. -/- This essay provides a virtue ethical defense of character evidence exclusion rules. We show that existing virtue ethical rebuttals to situationism themselves support prohibitions on character evidence; even if behavior arises from stable character traits, character evidence should be prohibited. In building our case, we provide a taxonomy of kinds of character judgment and reconcile the ubiquity and reasonableness of character judgments in ordinary life with the epistemic legitimacy of character evidence prohibitions in law. (shrink)

Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...) and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force. (shrink)

Rules proliferate; some are kept with a bureaucratic stringency bordering on the absurd, while others are manipulated and ignored in ways that injure our sense of justice. Under what conditions should we make exceptions to rules, and when should they be followed despite particular circumstances? The two dominant models in the literature on rules are the particularist account and that which sees the application of rules as normative. Taking a position that falls between these two extremes, Alan Goldman provides a (...) systematic framework to clarify when we need to follow rules in our moral, legal and prudential decisions, and when we ought not to do so. The book distinguishes among various types of rules; it illuminates concepts such as integrity, self-interest and self-deception; and finally, it provides an account of ordinary moral reasoning without rules. This book will be of great interest to advanced students and professionals working in philosophy, law, decision theory and the social sciences. (shrink)