Arguing that our attachment to Aristotelian modes of discourse makes a revision of their conceptual foundations long overdue, the author proposes the consideration of unacknowledged factors that play a central role in argument itself. These are in particular the subjective imprint and the dynamics of argumentation. Their inclusion in a four-dimensional framework and the focus on thesis validity allow for a more realistic view of our discourse practice. Exhaustive analyses of fascinating historical and contemporary arguments are provided. These range from (...) Columbus’s advocacy of the Western Passage to India, over the trial of King Louis XVI during the French Revolution, to today’s highly charged controversies surrounding euthanasia and embryo research. Excavating foundational issues such as the purpose of argument itself and the contested role of argument as a generator of knowledge, the book culminates in a discussion of the relationship between rationality and reasonableness and criticizes the restrictions of ‘rational’ argument relying on fixed logical, economic or cultural criteria that in reality are mutable. Here, a true, open argument requires the infusion of Paul Lorenzen’s principle of ‘transsubjectivity’, which recognizes but transcends the partiality of the individual and which can be seen in the pragmatic and expanding consensus that humanity can control itself to safeguard the future of a fragile, damaged world. (shrink)

The author distinguishes two concepts of practical reason: (a) practical reason as a source of practical principles, and (b) practical reason as the theory of thought operations connected with action. He proves that there is no practical recognition in the sense (a). We can deal with actions only on the basis of dichotomic semantics. Critical analyses of some theories of practical reason are presented (Kant, Lorenzen, Apel, Alexy). The critical part of the paper mainly concerns the discourse theory and its (...) implications for practical philosophy and jurisprudence. (shrink)

Argumentation schemes are forms of reasoning that are fallible but correctable within a self-correcting framework. Their use provides a basis for taking rational action or for reasonably accepting a conclusion as a tentative hypothesis, but they are not deductively valid. We argue that teleological reasoning can provide the basis for justifying the use of argument schemes both in monological and dialogical reasoning. We consider how such a teleological justification, besides being inspired by the aim of directing a bounded cognizer to (...) true belief and correct choices, needs to take into account the attitudes of dialogue partners as well as normative models of dialogue and communicative activity types, in particular social and cultural settings. (shrink)

In this article, we try to trace the relationship between semiotics and theory of legal reasoning using Peirce’s idea that all reasoning must be necessarily in signs: every act of reasoning/argumentation is a sign process, leading to “the growth of knowledge. The broad scope and universal character of Peirce’s sign theory of reasoning allows us to look for new conciliatory paradigms, which must be presented in terms of possible synthesis between the traditional approaches to argumentation. These traditional approaches are strongly (...) affected by either the dialectical (logical) perspective or the rhetorical perspective on argumentation, while Peirce’s approach tends to reconcile the rhetorical and methodological aspects of reasoning. This reconcilation is best illustrated by Peircean analysis of argument’s logical and rhetorical structure; while the diagrammatic (iconic) analysis of arguments is performed in the system of Existential Graphs (which is Peirce’s major methodological system, designed for the expressions of propositions in point of their relational structure). Obviously, Peirce’s original division of argument parts offered only the characterisation of the sign activity (involved in the process of reasoning), and thus left much to be desired in terms of practical explication. (shrink)

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the (...) argument from injustice, for the status of Alexy's inquiry. (shrink)

In my paper I will analyze decisions of the Russian Constitutional Court and courts of general jurisdiction, in which they interpret ordinary and seemingly unambiguous words and phrases. In a number of cases this interpretation is made in a manner, which is suspect from a linguistic point of view. The analysis shows that there is no consistency in the application by Russian courts of the “plain language” rule and that literal interpretation may be used selectively as a means of legitimizing (...) the decisions made on non-linguistic grounds. Though literal interpretation can be often incompatible with the concept of justice and therefore judges should also take into account other criteria, there are examples of court decisions, in which literal interpretation would have been more appropriate from the perspective of justice, separation of powers and human rights. The article shows how use and misuse of language by judges is employed as a tool in judicial decision-making. (shrink)

The purpose of this paper is to analyse the limits of constitutional reform. Some constitutions, for example, the German (art. 79, sec. 3), the Italian (art. 139), the Portuguese (art. 288), the French (art. 89, sec. 5), and the Brazilian (art. 60, sec. 4), contain an “essential core” of rights, which is usually understood as being immune to change. The initial focus in the paper is on the discussion on whether and to what extent these “essential cores” are indeed immune (...) to change. A second focus is on Ross's paradox. Here I analyse and reject Ross's own solution to the paradox and I show, too, that the paradox admits no solution that does not imply a discontinuity in the legal system. (shrink)

Although the genetic argument is a widely used interpretative argument, what it amounts to does not seem to be altogether clear. Basic forms of the genetic argument that are distinguished are often too rough to provide an adequate basis for the evaluation of an interpretative decision. In this article I attempt to provide a more detailed analysis of the genetic argument by making use of pragma-dialectical insights. The analysis clarifies the character and the structure of different forms of the genetic (...) argument and thus the elements that are relevant for the evaluation of the argument.*. (shrink)

The paper looks at an impasse with respect to the role of rights as reasons for action which afflicts contemporary legal and political debates. Adopting a meta‐ethical approach, it moves on to argue that the impasse arises from a philosophical confusion surrounding the role of rights as normative reasons. In dispelling the confusion, an account of reasons is put forward that attempts to capture their normativity by relating them to a reflexive public practice. Two key outcomes are identified as a (...) result of this explication: first, that normative practices are instances of rule‐following; and second, that agents partaking of normative practices possess absolute value (i.e., acquire the status of persons). In light of this explication, rights acquire the status of the most general reasons that purport to guarantee the content of personhood by specifying and safeguarding conditions which enable agents to participate in public practices of universalisation. (shrink)

The theory of rhetoric is recognised and widely used in a number of disciplines, particularly in the social sciences. It is therefore slightly surprising that it has not gained an important footing in jurisprudence. It is often argued that rhetoric and argumentative justification are clearly different issues. However, the present paper argues that they are in fact two aspects of argumentation and that the theory of rhetoric may be used also in the context of legal reasoning.

. One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer (...) an understanding of the institutionalisation of legal discourse as the tacit commitment of the participants to their shared normative experience and in particular in: 1) the possibility of containing normative force in space, 2) the possibility of transforming word into deed, 3) the possibility of grasping and controlling time and 4) the possibility of transforming deed into word. That commitment of participants in legal discourse is revealed as a set of fundamental assumptions embedded in all legal utterances, which provide the necessary bedrock that makes communication possible. It also provides a basis for the institution of legal discourse, to the effect that their problematisation signifies a departure from the latter. (shrink)

This paper aims to perform a multi-level analysis of the Irish public discourse on Covid-19. Despite widespread agreement that Ireland’s response was rapid and effective, the country’s journey through the pandemic has been no easy ride. In order to contain the virus, the Government’s emergency legislation imposed draconian measures including the detention and isolation of people deemed to be even “a potential source of infection” and a significant extension of An Garda Síochána’s power of arrest. In April 2020, journalists John (...) Waters and Gemma O’Doherty initiated judicial review proceedings before the High Court to challenge such legislation, which they defined as unconstitutional, “disproportionate” and based on “fraudulent science”. The proceedings attracted widespread media coverage in what soon became a debate on the legitimacy of emergency legislation and the notion of ‘fake news’ itself. After a brief survey of the legislative background to Ireland’s Covid response, the argumentative strategy is analysed through which the High Court eventually dismissed Mr Waters and Ms O’Doherty’s challenge. Focusing on the process of justification of the judicial decision, the paper provides a descriptive account of the argument structure of the Court’s decision. This sheds light on the pattern of multiple argumentation through which the Court interpreted relevant norms in the Constitution and at once re-established the primacy of “facts” informing political decision-making at a time of national emergency. (shrink)

The centrality of argumentation in the judicial process is an age-old acquisition of research on legal discourse. Notwithstanding the deep insights provided by legal theoretical and philosophical works, only recently has judicial argumentation been tackled in its linguistic dimension. This paper aims to contribute to the development of linguistic studies of judicial argumentation, by shedding light on evaluation as a prominent aspect in the construction of the judge’s argumentative position. Evaluation as a deep structure of judicial argumentation is studied from (...) a discursive point of view entailing the analysis of a sample of authentic judicial language. Evaluative lexis is investigated within a single genre of judicial discourse, i.e. judgments, instantiated by a corpus of US Supreme Court judgments. Findings show that judges use diversified strategies to take stance as they organise their argumentative discourse: from easily recognisable verbal and adjectival tools to more finely-grained discourse elements such as the encapsulating pattern ‘this/these/that/those + labelling noun’. (shrink)

This paper connects to Jon Bing’s great vision of an integrated national legal information system. The intention of this paper is to variegate Bing’s vision of an integrated information system by shifting the focus to the lay users, thus to those, who are subject to the law. The modified vision is an integrated information system that supports intelligible access to law for the citizens. This presupposes however an unambiguous and transparent legal system. Accordingly, it is also stressed that intelligent legal (...) knowledge engineering has high potential to increase precision and rationality in law, and hence safeguard the predictability of law and legal certainty. The central hypothesis is that putting the person who is subject to the law at the centre provides more rational reason to aim for the greatest possible precision of law by exploiting the means and technologies of our time than to uphold strategic vagueness. On this basis, the paper proposes the development of a basic set of controllable and justiciable basic legal drafting standards on EU and on national level, and promotes a transparency by design approach for legal knowledge engineering in order to enhance precision, integrity, comprehensibility and accessibility of law. Similarly to Jon Bing’s vision, this modified vision of an integrated legal information systems is, most probably, also likely to remain unfulfilled. However, what would science be without visions and (science) fictions? (shrink)

This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing Heck’s metaphor (...) of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion (...) and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

SummaryThis contribution offers an evaluation of e contrario reasoning in which the interpretation of a legal rule is based on the context of the law system (contextual e contrario reasoning). A model is presented which will show all the explicit and implicit elements of the argument at work and will also point out how these distinct parts are interrelated. By questioning the content and justificatory power of these elements, the weak spots in the argument can be laid bare. It will (...) be argued that e contrario reasoning inevitably requires a dubious argumentative step, which renders the argument intrinsically weak. The model is applied to a European lawsuit on French cheese. (shrink)

An outsider to argument theory, should she look through the rich outpouring of our recent work, might be amused to find us theorists not following our own prescriptions. We propound our ideas, but we don't always interact with each other--we don't argue. The essays by William Rehg and Robert Asen make promising start on rectifying this difficulty. I want to discuss them, first, to show how they acknowledge in exemplary fashion a pair of challenges I think we should all be (...) addressing; and next to consider their specific responses. (shrink)

This article examines Robert Alexy's account of legal validity. It concludes that Alexy's account of legal validity lacks sufficient support given the author's methodological commitments. To reach that conclusion, it assesses the plausibility of simultaneously maintaining that the participant's perspective has conceptual privilege in the explanation of the nature of law, that legal discourse is a special case of general practical discourse, and that unjust considerations can be legally valid norms.

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)

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 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 A Matter of Principle, Ronald Dworkin discusses the role a political morality should play in decisions about when the law should be obeyed and enforced, and even what law is. Noticing that liberalism was once a quasi-consensus theory in Great Britain and the United States – and, therefore, a natural candidate to that role in those countries – Dworkin argues that the loss of that status is due to an alleged failure of liberal political theorists to identify a kind (...) of egalitarianism as the constitutive principle on which liberalism is based. My aim in this paper is to advance arguments against such an influential claim that a certain egalitarianism would be the constitutive principle of political liberalism. (shrink)

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)

In this paper we describe the impact that Walton’s conception of argumentation schemes had on AI and Law research. We will discuss developments in argumentation in AI and Law before Walton’s schemes became known in that community, and the issues that were current in that work. We will then show how Walton’s schemes provided a means of addressing all of those issues, and so supplied a unifying perspective from which to view argumentation in AI and Law.

Los sesgos cognitivos afectan negativamente la toma de decisiones en todas las esferas de la vida, incluyendo las decisiones de los jueces. La imposibilidad de eliminarlos por completo de la práctica del derecho, o incluso de controlar sus efectos, contrasta con el anhelo de que las decisiones judiciales sean el resultado exclusivo de un razonamiento lógico-jurídico correcto. Frente el efecto sistemático, recalcitrante y porfiado de los sesgos cognitivos, una posible estrategia para disminuir su efecto es enfocarse, no en modificar el (...) comportamiento de los agentes judiciales, sino en moldear su entorno para que los sesgos tengan menos oportunidades de aparecer. En particular, es más provechoso concentrar los esfuerzos en identificar aquellas reglas procesales que faciliten o limiten el efecto de los sesgos. En este ensayo propongo un diálogo fructífero entre el derecho y la psicología que puede llevar a mejorar la calidad de los sistemas judiciales. La propuesta está basada en la creación de guías de práctica judicial que puedan servir de base para la creación de protocolos procesales que limiten en la medida de lo razonable sus efectos negativos y conduzcan a mejores decisiones judiciales. (shrink)

Law is the main regulator of public relations, and the question of the proper use and understanding of legal language is essential for law enforcement. This topic is of interest to both lawyers and philosophers, who often join efforts to study it. This article attempts precisely to take such an interdisciplinary approach when examining legal rules as specific linguistic conventions. First of all, for the sake of a better and more thorough understanding of legal language, legal norms are viewed both (...) from the point of view of semantics and from the point of view of pragmatics. Therefore, for this purpose, a distinction is made between legal norms and legal provisions as their linguistic equivalent. Legal norms are then explored through Wittgenstein's Later Philosophy, which describes their semantic content. The pragmatic aspect of the question is explained through John Austin's theory, thus treating legal rules as a kind of specific speech act of a conventional nature. (shrink)

The article develops and justifies, on the basis of the epistemological argumentation theory, two central pieces of the theory of evaluative argumentation interpretation: 1. criteria for recognizing argument types and 2. rules for adding reasons to create ideal arguments. Ad 1: The criteria for identifying argument types are a selection of essential elements from the definitions of the respective argument types. Ad 2: After presenting the general principles for adding reasons (benevolence, authenticity, immanence, optimization), heuristics are proposed for finding missing (...) reasons, for deductive arguments, e.g., semantic tableaux are suggested. (shrink)

Research using current literature on legal reasoning was conducted with the goals of (a) determining what skills are most important in good legal reasoning according to such literature, (b) determining the extent to which existing Law School Admission Test item types and subtypes are designed to assess those skills, and (c) suggesting test specifications or new or refined item types and formats that could be developed in the future to assess any important skills that appear [by (a) and (b)] to (...) be measured in a limited or minimal way by the current LSAT. So far as can be determined, such systematic research using legal reasoning literature has never been previously conducted. This report presents the findings of this research. (shrink)

If we think of fallacies as violations of the preconditions governing the products, processes, and procedures of argumentation, we see that fallacies do not merely weaken arguments, but rather undermine the possibility of argument itself. This approac h recommends itself on several counts. First, it accounts for diversity in fallacy analysis. Second, it makes possible investigations into new kinds of fallacies. Third, it provides new applications for ongoing developments in fallacy theory.