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.

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 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.

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 argues that Habermas's conception of the rationality of moral and legal discussions has import for argumentation theorists interested in the rationality of public deliberations in politics and law. I begin with a survey of Haber mas's discourse theory and his criteria of rationality for moral and legal discourse. I then explain why, in his view, the forms of rational discourse in morality and law complement each other. My aim is to show how Habermas's account of this complementary relationship opens up fruitful perspectives for argumentation theory. Specifically, his thought can stimulate research regarding, on the one hand, the ways in which legal procedures provide for presumptively rational resolutions of moral disputes and, on the other hand, the applicability of ideal argumentation-theoretic models to the legal field. I conclude with a proposal for integrating Habermas's ideas in a research program for legal argumentation

In law, the soundness of pragmatic argumentation in which a decision is defended by pointing to the consequences of the application of a particular legal rule, is often disputed. Some legal authors think that it is more of a rhetorical trick than a se rious attempt to convince in a rational way. Others think that it can be an acceptable way to defend a decision, provided that judges make explicit which value judgments underlie their decisions. I will sketch a pragma-dialectical framework for pragmati c argumentation and describe the criteria for sound pragmatic argumentation in a legal context.

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