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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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138A 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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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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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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57In 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 fro…Read more
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7Participants 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 rhet…Read more
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34Introduction: Dialectical legal argument: Formal and informal models (review)Artificial Intelligence and Law 8 (2-3): 107-113. 2000.
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Argumentation from Reasonableness in the Justification of Judicial DecisionsIn Christian Dahlman & Thomas Bustamante (eds.), Argument Types and Fallacies in Legal Argumentation, Springer
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56The Rationality of Legal Discourse in Habermas's Discourse TheoryInformal Logic 23 (2): 139-159. 2003.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 rel…Read more
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16In 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 pra…Read more
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