Eveline Feteris

Linguistic argumentation, using the meaning of the wording in a statutory norm, often plays an important role in the justification of interpretative standpoints in legal decisions. In legal theory, the use of linguistic argumentation is often discussed, but the reconstruction of the use of this argumentation in light of the different evaluation criteria has not received much attention yet. In order to provide clues for this reconstruction we will answer two related questions: which norms apply for the use of linguistic argumentation and which uses of linguistic argumentation can be distinguished based on these norms. We start with a pragma-dialectical framework for the analysis of linguistic argumentation, based on a dialogical application of MacCormick and Summers’ model for the interpretation of statutes. Given this framework, we will give an overview of the different forms of linguistic argumentation in the justification of interpretative standpoints. We will specify the justificatory function of linguistic argumentation in complex structures and we will distinguish four forms. For each form, we specify the norms for an acceptable use. For each form, we explain with an example in which discussion context such a form is used and how courts refer to the norms for an acceptable use.

Participants to a legal process often use linguistic arguments to support their claim. With a linguistic argument it is shown that the proposed interpretation of a rule is based on the meaning of the words used in the rule in ordinary or technical language. The reason why a linguistic argument is chosen as a support for a legal claim is that linguistic arguments are considered to have a preferred status in justifying a legal decision. However, this preferred status can also be ‘misused’ for rhetorical reasons. In my contribution I analyse and evaluate an example of a form of strategic manoeuvring with a linguistic argument that often occurs in discussions about the application of legal rules and I explain how the strategic manoeuvring derails. I explain that the strategic manoeuvring with the linguistic argument constitutes a complex form of strategic manoeuvring that consists of a combination of two manoeuvres.

This paper addresses a specific form of argumentation, pragmatic argumentation, in which a certain action, choice or decision is justified by referring to the favourable consequences of the action. The paper starts with a survey of the ideas on legal argumentation developed in argumentation theory, analytical philosophy and legal theory. The various ideas are brought together in a pragma-dialectical perspective in order to give a systematic survey of the various conceptions of pragmatic argumentation and to decide which further lines of research must be developed.

Modern legal systems are characterized by a tension between two commonplaces: the Rule of Law on the one hand, and the arguable character of law on the other. The Rule of Law calls for legal certainty, predictability and reasonableness; the argumentative character of law implies room for rational disagreement. In this book, expert scholars come together to offer interdisciplinary approaches to debate this tension and its possible reconciliation. Central in their perspective is that reconciliation is possible when the Rule of Law also incorporates rules for reason-giving. Reason-giving should be part of a substantive conception of the Rule of Law. Requiring that legal decision-makers give reasons furthers reasonable outcomes. The analysis of the ideal of rational argumentation and the ideal of the Rule of Law show how insights of two traditions are connected. This collection of essays includes contributions from law, argumentation theory, logic and philosophical perspectives. This multifaceted approach demonstrates the variety of questions that emerge at the intersection of both commonplaces. This volume fills a remarkable void in the current literature on the Rule of Law. It should be welcomed, not only by experts in Legal Methodology, Argumentation Theory and Rhetoric, but by judges, lawyers and law students as well. [Subject: Constitutional Law, Legal Theory, Civil Law]