Strategic Maneuvering with the Intention of the Legislator in the Justification of Judicial Decisions

Argumentation 22 (3):335-353 (2008)

Authors
Eveline Feteris
University of Amsterdam
Abstract
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
Keywords Legal argumentation  Strategic manoeuvring  Burden of proof  Legal interpretation  Critical discussion  Rhetorical strategy  Precedent   Obiter dictum
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DOI 10.1007/s10503-008-9100-4
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What the Legislature Did Not Say.Damiano Canale & Giovanni Tuzet - 2016 - Journal of Argumentation in Context 5 (3):249-270.

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