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  1. An Argumentation Framework for Contested Cases of Statutory Interpretation.Fabrizio Macagno, Giovanni Sartor & Douglas Walton - 2016 - Artificial Intelligence and Law 24 (1):51-91.
    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 (...)
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  2. Thomas Lübbig, Rhetorik für Plädoyer und forensischen Streit. [REVIEW]Jens Lemanski - 2021 - Rechtsphilosophie. Zeitschrift Für Die Grundlagen des Rechts 7:326-333.
    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.
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  3. The Potential of Abductive Legal Reasoning.Bjarte Askeland - 2020 - Ratio Juris 33 (1):66-81.
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  4. Statutory Interpretation: Pragmatics and Argumentation.Douglas Walton, Fabrizio Macagno & Giovanni Sartor - 2021 - Cambridge: Cambridge University Press.
    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 (...)
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  5. The Problem of Defeasibility and the Problems of ‘Defeasibility’. [REVIEW]Luís Duarte D'Almeida - 2014 - Jurisprudence 5 (2):401-408.
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  6. Demystifying Legal Reasoning.Larry Alexander & Emily Sherwin (eds.) - 2008 - Cambridge University Press.
    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.
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  7. Presumption in Legal Argumentation: From Antiquity to the Middle Ages.Hanns Hohmann - unknown
    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 (...)
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  8. Law and Defeasibility. A Few Comments on The Logic of Legal Requirements.Bartosz Brożek - 2014 - Revus 23:165-170.
    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..
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  9. Presumptions in Legal Argumentation.Douglas Walton Fabrizio Macagno - 2012 - Ratio Juris 25 (3):271-300.
    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 (...)
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  10. More on the Gettier Problem and Legal Proof.Michael S. Pardo - 2011 - Legal Theory 17 (1):75-80.
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  11. The Rationality of Legal Argumentation.Sol Azuelos Atias - 2009 - Pragmatics and Cognition 17 (2):383-401.
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  12. Defeasible Rules and Interpersonal Accountability.Bruce Chapman - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
    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 (...)
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  13. Legal Defeasibility in Context and the Emergence of Substantial Indefeasibility.Jonathan R. Nash - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  14. Defeasibility and Adjudication.Richard H. S. Tur - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  15. Rules, Principles, and Defeasibility.Manuel Atienza & Juan Ruiz Manero - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  16. True Exceptions : Defeasibility and Particularism.Bruno Celano - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press. pp. 268--287.
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  17. Reasons for Action and Defeasibility.María Cristina Redondo - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  18. Defeasibility and Open Texture.Brian H. Bix - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  19. Acts, Normative Formulations, and Defeasible Norms.Ricardo Caracciolo - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  20. Defeasibility and Legal Indeterminacy.Pierluigi Chiassoni - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  21. Defeasibility, Axiological Gaps, and Interpretation.Riccardo Guastini - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  22. Defeasible Properties.Rafael Hernández Marín - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  23. Defeasibility in Legal Reasoning.Giovanni Sartor - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  24. Defeasibility, Contributory Conditionals, and Refinement of Legal Systems.Juliano S. A. Maranhão - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  25. Against Defeasibility of Legal Rules.Jorge L. Rodríguez - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
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  26. The Three Faces of Defeasibility in the Law.Henry Prakken & Giovanni Sartor - 2004 - Ratio Juris 17 (1):118-139.
  27. Lesser Evils: A Closer Look at the Paradigmatic Justification. [REVIEW]Larry Alexander - 2005 - Law and Philosophy 24 (6):611-643.
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  28. Why Shall Legal Reasoning Be Coherent?Aleksander Peczenik - 1993 - In K. B. Agrawal & R. K. Raizada (eds.), Sociological Jurisprudence and Legal Philosophy: Random Thoughts On. University Book House.
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  29. Argumentation Schemes.Douglas Walton, Chris Reed & Fabrizio Macagno - 2008 - Cambridge and New York: Cambridge University Press.
    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 (...)
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Analogical Reasoning in Law
  1. The Constraining Force of Analogies and the Role of the Judge.Katharina Stevens - 2018 - In Kenneth Einar Himma, Miodrag A. Jovanović & Bojan Spaic (eds.), Unpacking Normativity - Conceptual, Normative and Descriptive Issues. Oxford, UK: pp. 187 - 205.
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  2. Analogical Arguments: Inferential Structures and Defeasibility Conditions.Fabrizio Macagno, Douglas Walton & Christopher Tindale - 2017 - Argumentation 31 (2):221-243.
    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 (...)
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  3. Legal Reason: The Use of Analogy in Legal Argument.Lloyd L. Weinreb - 2005 - Cambridge University Press.
    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 (...)
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  4. Valuing Reasons: Analogy and Epistemic Deference in Legal Argument.Scott Brewer - 1997 - Dissertation, Harvard University
    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 (...)
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  5. Logik Und Axiologie der Analogen Rechtsanwendung. [REVIEW]K. B. L. - 1962 - Review of Metaphysics 15 (3):525-526.
    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.
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  6. Legal Reason: The Use of Analogy in Legal Argument. [REVIEW]Timothy Kaye - 2005 - Journal of Mind and Behavior 26 (4):307-312.
    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 (...)
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  7. Analogical Reasoning in the Common Law.Grant Lamond - 2014 - Oxford Journal of Legal Studies 34 (3):567-588.
    Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This article argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the (...)
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  8. Argument From Analogy in Legal Rhetoric.Douglas Walton - 2013 - Artificial Intelligence and Law 21 (3):279-302.
    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 (...)
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  9. Analogy Exercises for Teaching Legal Reasoning.Peter Suber - unknown
    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.
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  10. Argument From Analogy in Law, the Classical Tradition, and Recent Theories.Fabrizio Macagno & Douglas Walton - 2009 - Philosophy and Rhetoric 42 (2):154-182.
    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 (...)
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  11. Understanding Blended Multi-Source Arguments as Arguments From Partial Analogies.Marcello Guarini - 2010 - Ratio Juris 23 (1):65-100.
    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 (...)
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  12. Analogy in Legal Reasoning.Lawrence C. Becker - 1973 - Ethics 83 (3):248-255.
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  13. Precedent and Analogy in Legal Reasoning.Grant Lamond - 2008 - Stanford Encyclopedia of Philosophy.
  14. Thinking Like a Lawyer.Dan Priel - manuscript
    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 (...)
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Rules in Legal Reasoning
  1. Realism and Positivism.David Frydrych - forthcoming - Jurisprudence.
    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 (...)
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  2. Legal Realism and 'Working' Rules.David Frydrych - forthcoming - Canadian Journal of Law and Jurisprudence.
    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.
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  3. Opacity of Character: Virtue Ethics and the Legal Admissibility of Character Evidence.Jacob Smith & Georgi Gardiner - 2021 - Philosophical Issues 31 (1):334-354.
    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. (...)
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  4. Precedent and the Rule of Law.Sebastian Lewis - 2021 - Oxford Journal of Legal Studies 41 (4):873-898.
    Courts may reason using precedents in various ways, but not all of them satisfy the rule of law. This article provides two ways that are compatible with this ideal and one which is not. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. Two claims are defended. First, courts always have a reason to decide precedent-governed disputes by following precedent. This reason is a minimum requirement of (...)
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  5. Practical Reason and Norms, 2nd Edition.Joseph Raz - 1990 - Princeton University Press.
    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 (...)
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  6. Practical Rules: When We Need Them and When We Don’T.Alan H. Goldman (ed.) - 2001 - Cambridge University Press.
    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 (...)
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  7. Interpretative Importance of Legal Principles for the Understanding of Legal Texts.Marijan Pavčnik - 2015 - Archiv für Rechts- Und Sozialphilosophie 101 (1):52-59.
    Law is a system of legal rules and legal principles. The distinction between them is a relative one. Always such definite major and minor premises are to be formed that the case can be subsumed under the rule and a conclusion, which includes the decision, can be drawn. This applies to legal principles that are operationalised by legal rules as well as to statutory forms of legal rules, which are often open as to their meaning and/or contain definitions that comprise (...)
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