Eveline Feteris

In a logical approach of legal argumentation the central focus is on the role of formal validity as a criterion of rationality for legal argumentation. Various logical systems have been developed to analyse and evaluate legal argumentation. This chapter explains the role and the importance of formal logic for the analysis and evaluation of legal argumentation. Section 2.2 describes the role of formal logic as criterion of rationality for legal argumentation. Section 2.3 describes the various logical systems for the reconstruction of legal argumentation. In Sect. 2.4 attention is devoted to the operations required for a logical analysis of legal argumentation. Section 2.5 gives an overview of the discussion on the importance of logic for legal argumentation. In Sect. 2.6 recent developments in the study of the role of logic in legal justification in Artificial Intelligence and Law are discussed and Sect. 2.7 is a summary of the main results of this chapter.

This chapter discusses Toulmin’s argumentation model and its application in a legal context. In the introduction of his argumentation model, Toulmin uses the legal process to show that the acceptability of practical argumentation does not depend on logical validity. Comparing the process of practical argumentation with a legal process, he tries to demonstrate that the acceptability of a claim depends in part on a fixed procedure for defending standpoints. The elements of such a procedure are field-invariant. However, the evaluation criteria that are used in various forms of legal proceedings to decide whether the content of the arguments put forward in this procedure are acceptable are field-dependent.In this chapter, Sect. 3.2 describes Toulmin’s argumentation model in which he translates the stages of a legal process in terms of a general procedure for practical argumentation. Section 3.3 discusses the application of Toulmin’s model in literature on legal argumentation. Section 3.4 discusses refinements and extensions of the Toulmin model developed in research on AI and Law. Section 3.5 concludes with a summary of the insights offered by Toulmin’s theory with respect to the analysis and evaluation of legal argumentation.

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values.In this chapter, I explain in more detail how these ideas are developed in Aarnio’s theory. As an introduction to Aarnio’s conceptual framework, Sect. 8.2 will deal with the concept of an interpretation standpoint, and Sect. 8.3 will show how such a standpoint is justified. The topic of Sect. 8.4 is the distinction between the rationality and acceptability of legal interpretations. The Sects. 8.5 and 8.6 examine the role of the concepts rationality and acceptability in Aarnio’s theory. Finally, Sect. 8.7 specifies those parts of Aarnio’s theory that are of particular importance for the analysis and evaluation of legal argumentation and for a further development of a theory of legal argumentation.

This chapter gives an overview of the pragma-dialectical approach to legal argumentation. The chapter provides a summary of the pragma-dialectical theory of argumentation and describes developments in the application of the theory to the legal context. It characterizes legal justification as an argumentative activity type and it analyses the role of the judge in terms of his function in the resolution of a difference of opinion. The different prototypical argumentative patterns in legal justification are discussed. The patterns are characterized as prototypical patterns that result from the obligations of courts to justify their decisions in clear cases and hard cases. It is specified which argument schemes have a function in the justification. For the different argument schemes it is investigated how the way courts react to different critical questions results in different argumentative patterns. On the basis of some representative examples of justifications in hard cases in which courts must interpret the legal rule, a description is given of implementations of prototypical argumentative patterns. Finally, prototypical patterns of weighing and balancing, that consist of a combination of different forms of justification, are discussed.

As an introduction to the discussion of theories of legal justification in the following chapters, this chapter discusses the central topics in the literature on interpretation and application of legal rules in particular, and the law in general. The central focus of this introduction is on the discretionary space judges have in interpreting and applying the law and the way in which they must account for the decisions taken in this decision process by means of argumentation. First, in Sect. 1.2, the central problems in the interpretation and application of legal rules will be discussed. Section 1.3 concentrates on methods of legal interpretation and types of legal reasoning. In Sect.1.4 specific attention is paid to the role of legal interpretation and argumentation in the context of EU law and international law and the way in which courts use their discretionary space in a multi-layered system of law. Section 1.5 forms the conclusion with attention for the argumentative character of the law in light of the discretionary space of the judge and the fact that the correctness of the decisions taken in the interpretation process depends on the quality of the argumentation put forward in defence of these decisions.

This chapter discusses the relation between Jürgen Habermas’s discourse theory and the rationality of legal discourse. In his discourse theory, Habermas sets out the conditions a rational discussion is required to meet. In the legal part of his theory on argumentation, Habermas describes how the rationality of legal discourse is related to the rationality of non-legal discourse. The aim is to establish the standards of rationality legal argumentation should meet from the perspective of a discourse theory in which the norms for rational discourse are specified. In his view, both forms of rationality are complementary: on the one hand, legal procedures can promote the rational quality of legal discourse on moral issues in relation to the idealized requirements of rational discussion; on the other hand, these idealized requirements should function as a standard for the rationality of legal procedures.In this chapter, Sect. 5.2 describes Habermas’s general discourse theory, the ideal of rational consensus, and the necessity of institutionalizing rational discourses in institutional settings such as the law. Section 5.3 explores in detail the complementary relation between moral-practical discourse and legal discourse. By way of conclusion, Sect. 5.4 summarizes the respects in which Habermas’s ideas on communicative rationality are important for a further development of the theory of legal argumentation.

This chapter discusses Perelman’s New Rhetoric and its application in a legal context in the form of a legal logic. In his New Rhetoric Perelman describes the argumentative techniques a speaker can use to convince his audience. In his application of the general New Rhetoric in his legal logic, Perelman discusses the argumentative techniques that are used by lawyers to convince a legal audience. Section 4.2 describes Perelman’s general argumentation theory. Section 4.3 specifies how the ideas of this general theory are applied in his legal argumentation theory. Section 4.4 discusses applications of Perelman’s ideas in the literature of legal argumentation. The chapter concludes with Sect. 4.5, providing a summary of the insights offered by Perelman’s theory with respect to the analysis and evaluation of legal argumentation.

This chapter discusses Alexy’s theory of legal argumentation. The central question in the work on legal argumentation of Robert Alexy is how normative statements, such as legal decisions, can be justified in a rational way. Alexy considers the process of justification of normative statements as a practical discussion or ‘practical discourse’ and the process of justification of legal decisions as ‘legal discourse’. Since a legal discussion in which legal norms are defended is a specific form of general practical discourse, a theory of legal argumentation should be founded on a general theory of this kind.In this chapter, I describe the theory of general practical discourse and its connection with the theory of legal argumentation. The general theory of practical discourse will be discussed in Sect. 7.2, the theory of legal argumentation in Sect. 7.3 and the idea that legal discourse is a special case of general practical discourse in Sect. 7.4. In Sect. 7.5 the role of rules and legal principles in weighing and balancing in legal justification will be discussed. By way of conclusion, Sect. 7.6 identifies the elements of the theory of particular use for the analysis and evaluation of legal argumentation and identifies the respects in which Alexy’s ideas are important for a further development of a theory of legal argumentation.

In his theory of legal justification Neil MacCormick tries to formulate a solution for one of the central problems in modern legal theory. He explains how, in so-called hard cases in which a judge cannot rely on a generally accepted existing rule, a legal decision can be justified rationally. MacCormick specifies the forms of argument a judge must employ when formulating a new rule or when interpreting an existing rule drawn from a statute or precedent. MacCormick locates the solution of this problem in the more general context of an institutional theory of the rationality of legal decision-making and legal justification. Furthermore he attempts to answer the question which general and which specific legal requirements of rationality play a role in the justification of legal decisions from the perspective of the law as an institutional normative order.This chapter explains in some detail how these insights are developed in MacCormick’s institutional theory of legal reasoning and legal justification. In Sect. 6.2 I address the institutional approach of legal justification. In Sect. 6.3 I examine the deductive mode of justification, and in Sect. 7.4 the second-order mode of justification. The Sects. 6.5, 6.6 and 6.7 deal with consequentialist arguments and arguments from coherence and consistency. Section 6.8 offers an assessment of MacCormick’s theory with respect to the development of a theory of legal argumentation and the analysis and evaluation of legal argumentation.

In the preceding chapters, several of the most important theories of legal argumentation have been examined. Apart from these theories in which a more or less complete account of legal argumentation is developed, there have also been studies of legal argumentation in which the development of a theory is not the main goal, but in which a specific aspect is analysed or a case study of legal texts is described. Since the contributions by research groups and individual scholars with respect to such studies have been important for the development of research of legal argumentation, this chapter will provide an overview of research of legal argumentation by research groups and individual scholars, organized along different approaches in various legal systems and countries.In this chapter, I present, in the form of a bibliographical overview, a systematic survey of the research of legal argumentation in the context of legal justification in different legal systems and countries, and trace their more important interconnections. To give a clear picture of the similarities and differences of the contributions, the survey in this chapter is arranged in such a way as to emphasize a distinction between approaches to and studies of legal argument. Section 11.2 sketches a short background of the research. The following sections survey the main approaches, research traditions and studies of legal argument in different legal systems and countries: Sect. 11.3 in the civil law tradition (Europe and Latin-America), Sect. 11.4 in the Anglo-Saxon law system (the UK, the US and Canada) and Sect. 11.5 in Asia (China and Japan).

In his theory of legal transformations, Peczenik tries to answer the question of how a legal decision can be justified rationally. To justify a legal decision, according to Peczenik, it must be shown that the decision can be justified, not only on legal grounds, but also on general rational grounds. Thus, two different modes of justification are required: a contextually sufficient legal justification and a deep justification. The first mode of justification shows that the decision can be sufficiently defended within the context of the legal tradition. The second mode shows that the legal starting points and argumentation rules can be defended by referring to general moral grounds.Peczenik develops a theory of these two modes of justification, which are required for a rational justification of a legal decision. The two forms of justification are reflected in the two components of his theory. The first component describes which requirements a legal justification must meet. Which transformations must be carried out to justify the standpoint that a legal decision can be derived from a particular legal rule? The second component specifies the requirements that a deep justification must satisfy. Which transformations have to be carried out to justify the standpoint that the procedures for a justification of legal decisions, used in legal practice and in legal theory, can be considered rational?This chapter explains the basic ideas of Peczenik’s theory of legal transformations and legal justification. Section 9.2 examines the question: what are legal transformations? Section 9.3 describes the process of legal justification. It addresses the question of what exactly transformations ‘into the law’ and ‘inside the law’ are that are performed when applying a legal rule in a specific case. Section 9.4 describes the concept of the deep justification. It explores what, in Peczenik’s view, constitutes the rationality of legal argumentation and defines what the starting points are of a legal system, also called the ‘legal ideology’. Section 9.5 goes into Peczenik’s ideas about coherence as a requirement for the rationality of legal justification. Section 9.6 offers an assessment of Peczenik’s theory with respect to the analysis and evaluation of legal argumentation and identifies the elements that are important for a further development of a theory of legal argumentation.

This book is an updated and revised edition of Fundamentals of Legal Argumentation published in 1999. It discusses new developments that have taken place in the past 15 years in research of legal argumentation, legal justification and legal interpretation, as well as the implications of these new developments for the theory of legal argumentation. Almost every chapter has been revised and updated, and the chapters include discussions of recent studies, major additions on topical issues, new perspectives, and new developments in several theoretical areas. Examples of these additions are discussions of recent developments in such areas as Habermas' theory, MacCormick's theory, Alexy's theory, Artificial Intelligence and law, and the pragma-dialectical theory of legal argumentation. Furthermore it provides an extensive and systematic overview of approaches and studies of legal argumentation in the context of legal justification in various legal systems and countries that have been important for the development of research of legal argumentation. The book contains a discussion of influential theories that conceive the law and legal justification as argumentative activity. From different disciplinary and theoretical angles it addresses such topics as the institutional characteristics of the law and the relation between general standards for moral discussions and legal standards such as the Rule of Law. It discusses patterns of legal justification in the context of different types of problems in the application of the law and it describes rules for rational legal discussions. The combination of the sound basis of the first edition and the discussions of new developments make this new edition an up-to-date and comprehensive survey of the various theoretical influences which have informed the study of legal argumentation. It discusses salient backgrounds to this field as well as major approaches and trends in the contemporary research. It surveys the relevant theoretical factors both from various continental law traditions and common law countries.

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.

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]

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values.

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.

This essay discusses the developments and trends of research in legalargumentation of the last 25 years. The essay starts with a survey of thevarious approaches which can be distinguished: the logical approach, therhetorical approach, and the dialogical approach. Then it identifies varioustopics in the research, which constitute the various components of aresearch programme of legal argumentation: the philosophical component, thetheoretical component, the reconstruction component, the empiricalcomponent, and the practical component. It concludes with a discussion ofthe main trends in the research of the last 25 years

In this contribution the prototypical argumentative patterns are discussed in which pragmatic argumentation is used in the context of legal justification in hard cases. First, the function and implementation of pragmatic argumentation in prototypical argumentative patterns in legal justification are addressed. The dialectical function of the different parts of the complex argumentation are explained by characterizing them as argumentative moves that are put forward in reaction to certain forms of critique. Then, on the basis of an exemplary case, the famous Holy Trinity case, the way in which the U.S. Supreme Court uses pragmatic argumentation in this case is discussed by showing how the court instantiates general prototypical argumentative patterns in light of the institutional preconditions of the justification in the context of the specific case.