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8Uses of Linguistic Argumentation in the Justification of Legal DecisionsIn Ronny Boogaart, Henrike Jansen & Maarten van Leeuwen (eds.), The Language of Argumentation, Springer Verlag. pp. 127-142. 2021.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 f…Read more
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1Legal Argumentation and the Rule of Law (edited book)Eleven International Publishing. 2016.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 reconciliatio…Read more
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59Aulis 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 sp…Read more
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3This 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 argument…Read more
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20Rationality in legal discussions: A pragma-dialectical perspectiveInformal Logic 15 (3): 179-188. 1993.
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9The Analysis and Evaluation of Legal Argumentation: Approaches from Legal Theory and Argumentation TheoryStudies in Logic, Grammar and Rhetoric 16 (29). 2009.
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58A Survey of 25 Years of Research on Legal ArgumentationArgumentation 11 (3): 355-376. 1997.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 empiricalc…Read more
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87Weighing and Balancing in the Justification of Judicial DecisionsInformal Logic 28 (1): 20-30. 2008.In legal theory, it is widely claimed that decisions in hard cases are based on weighing and balancing. However no reconstructions are given of the deep structure of the complex argumentation underlying the justification of these decisions. The author develops a model for the analysis of weighing and balancing of arguments in the justification of judicial decisions that are based on teleological-evaluative considerations. The justification is reconstructed as a complex argumentation that consist…Read more
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11I give a pragma-dialectical reconstruction of the role of teleological-evaluative argumentation referring to goals and values in the justification of judicial decisions. I establish the role and place of this form of argumentation in complex forms of justification in which the argumentation interacts with other forms of legal argumentation. I will do this by integrating the insights from legal theory and legal philosophy into a pragma-dialectical framework for the analysis and evaluation of argu…Read more
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15Millgram, Elijah (ed.), Varieties of Practical Reasoning (2001)Argumentation 17 (2): 251-255. 2003.
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94A Pragma-Dialectical Approach of the Analysis and Evaluation of Pragmatic Argumentation in a Legal ContextArgumentation 16 (3): 349-367. 2002.This paper answers the question how pragmatic argumentation which occurs in a legal context, can be analyzed and evaluated adequately. First, the author surveys various ideas taken from argumentation theory and legal theory on the analysis and evaluation of pragmatic argumentation. Then, on the basis of these ideas, she develops a pragma-dialectical instrument for analyzing and evaluating pragmatic argumentation in a legal context. Finally she demonstrates how this instrument can be used by givi…Read more
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47In 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 r…Read more
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32Strategic Maneuvering with the Intention of the Legislator in the Justification of Judicial DecisionsArgumentation 22 (3): 335-353. 2008.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…Read more
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Zijn de onuitgesproken vooronderstellingen, uitgangspunten en vanzelfsprekendheden in het argumenteren in het burgerlijk recht het leem in de voeten van de reus?Netherlands Journal of Legal Philosophy 1 43-46. 2004.
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135A dialogical theory of legal discussions:Pragma-dialectical analysis and evaluation of legalargumentationArtificial Intelligence and Law 8 (2-3): 115-135. 2000.In this paper, the author describes a dialogical approach tolegal argumentation from the perspective of argumentationtheory. In a pragma-dialectical approach of legalargumentation, the argumentation is considered to be part of acritical discussion aimed at the rational resolution of thedispute. The author describes how a pragma-dialecticalanalysis and evaluation of legal argumentation can be carriedout.
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33The role of the judge in legal proceedings: A Pragma-dialectical analysisJournal of Argumentation in Context 1 (2): 234-252. 2012.In this contribution I characterize the role of the judge in the context of the argumentative activity of legal proceeding. I describe the role of the judge from a pragma-dialectical perspective and explain in which way this role promotes a rational resolution of the dispute. I specify how a critical discussion in accordance with the ideal model is implemented in legal procedure to accomplish the institutional point, a resolution of the dispute in accordance with the Rule of Law.
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24Comments on `Rhetoric and Dialectic: Some Historical and Legal Perspectives'Argumentation 14 (3): 235-239. 2000.
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