A Survey of 25 Years of Research on Legal Argumentation

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.     

American Legal argumentation: The Law and Literature/rhetoric movement

This essay discusses the most recent manifestations of the debate of the law and literature movement. The essay traces the evolution of the Law and Literature schools and identifies some of their adherents and conclusions, shows how these schools have influenced the conceptual development and teaching of American law, presents connections between the Critical Legal Studies and Law and Economics movements in the U.S., and raises questions about the Law and Literature movement.     

A Pragma-Dialectical Approach of the Analysis and Evaluation of Pragmatic Argumentation in a Legal Context

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 giving an exemplary analysis and evaluation of pragmatic argumentation in a decision of the Dutch Supreme Court.     

Logic and Rhetoric in Legal Argumentation: Some Medieval Perspectives

While the formal treatment of arguments in the late medieval modi arguendi owes much to dialectic, this does not remove the substance and function of the argumentative modes discussed from the realm of rhetoric. These works, designed to teach law students skills in legal argumentation, remain importantly focused on persuasive features of argumentation which have traditionally been strongly associated with a rhetorical approach, particularly in efforts to differentiate from it dialectic as a more strictly scientific and logical form of reasoning. This also sheds some light on the relative roles logic and rhetoric play in the legal discourse of our own time. In their approach to persuasive legal discourse, the modi arguendi stand between the argumentative rhetorics of Antiquity and the rhetoricized dialectics of the Renaissance, and by linking the minute technicalities of professionalized law with broad general considerations of justice, utility, nature, and emotion, they mediate between the modem trend towards atomized field-specific rhetorics and the classical idea of a unified civic rhetoric.     

The Rational Reconstruction of Argumentation Referring to Consequences and Purposes in the Application of Legal Rules: A Pragma-Dialectical Perspective

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.     

Legal realisms: on law and politics

The focus of this work is the issue of whether, and to what extent, the nature of the law is affected by politics, has been taken up by the American and Scandinavian legal realists. By the very fact of their being products of␣the socio-political conditions of the most recent century, the American and Scandinavian legal realisms are the movements that have most explicitly and systematically brought to the surface one particular characteristic phenomenon of contemporary Western legal systems: the existence of two basic forces simultaneously attracting and repelling, affecting the law in its relations with the political world.I would like to deeply thank Brian Bix, Laura Carlson, Roger Cotterrell and Jori Munukka for their many helpful comments on earlier drafts of this article. Any errors remaining are my own.     

On Agents That Have the Ability to Choose

We demonstrate ways to incorporate nondeterminism in a system designed to formalize the reasoning of agents concerning their abilities and the results of the actions that they may perform. We distinguish between two kinds of nondeterministic choice operators: one that expresses an internal choice, in which the agent decides what action to take, and one that expresses an external choice, which cannot be influenced by the agent. The presence of abilities in our system is the reason why the usual approaches towards nondeterminism cannot be used here. The semantics that we define for nondeterministic actions is based on the idea that composite actions are unravelled in the strings of atomic actions and tests that constitute them. The main notions used in defining this semantics are finite computation sequences and finite computation runs of actions. The results that we obtain meet our intuitions regarding events and abilities in the presence of nondeterminism.     

Differential involvement of left prefrontal cortex in inductive and deductive reasoning

While inductive and deductive reasoning are considered distinct logical and psychological processes, little is known about their respective neural basis. To address this issue we scanned 16 subjects with fMRI, using an event-related design, while they engaged in inductive and deductive reasoning tasks. Both types of reasoning were characterized by activation of left lateral prefrontal and bilateral dorsal frontal, parietal, and occipital cortices. Neural responses unique to each type of reasoning determined from the Reasoning Type (deduction and induction) by Task (reasoning and baseline) interaction indicated greater involvement of left inferior frontal gyrus (BA 44) in deduction than induction, while left dorsolateral (BA 8/9) prefrontal gyrus showed greater activity during induction than deduction. This pattern suggests a dissociation within prefrontal cortex for deductive and inductive reasoning.     

医患关系的本质属性及其立法取向

考察医患关系的本质属性,结合国家医疗事业的公益性、医疗立法的宗旨和发展趋势,得出如下结论：医患关系本质平等,医事法属平权法。医事法律关系本质平等,是一种民事法律关系,现行医患关系立法体系下医患关系的某些特征,不能反映医事法律关系的本质属性。     

医疗市场化失败后的法律和伦理思考

法律上对于医疗机构的民事主体定位,虽然暂时满足了医疗市场化的需要,但却淡化了医疗机构所应承担的公共伦理职责.私权与公共伦理之间的剧烈冲突,最终使得医疗市场化走向终结.     

非法人体试验的实质化犯罪证成与刑法规制

同一社会的法律法规整体中,不同性质的法对行为违法性的评价始终是一致的。《民法典》的问世,将人格权独立成编。人格权的独立成编不仅彰显了国家对公民的生命权、身体权、健康权的法律保护,亦体现了法律对现代医学科学时代人格权新型权利内容的特别维护。刑法应当积极回应非法人体试验这一社会现实,准确把握刑事法律的国际趋势,科学构建刑法体系,完善人体试验法律秩序,保护受试者的合法权益,推动医学研究的良性发展。     

第三方医学检验机构法律问题研究——从两个典型判例的实证研究切入

第三方医学检验机构主要从美国兴起,我国的第三方医学检验机构随着医疗改革的深入也在迅猛发展。但是比起医疗机构附设的医学检验部门,第三方医学检验机构是独立的法人主体,因此与患者和医疗机构之间形成多元法律关系。通过整理涉医学检验机构诉讼纠纷发现,法律实践中主要存在两类典型的法律问题：一类是法理或法律可以予以解决的问题,但解决的结果无法达到案结事了或者公平公正,这类问题源于实践超出理论的复杂性;另一类是落入法律或法理的“间隙”,在理论上存疑的问题。诉诸法律来解决的这些问题虽然还未能成为第三方医学检验机构发展的重要风险,但是所展现出来的问题都具有相当的典型性和代表性。

     

Legal Practices and the Reason of the Law

Legal argumentation, like argumentation generally, occurs against a background of shared understanding and competence. This view, inspired by Kuhn's understanding of scientific reasoning, is in stark contrast to more traditional rule-following accounts of legal argumentation. Below I consider reasons to reject the more traditional view of legal reasoning in favor of a roughly Kuhnian account of legal reasoning and conclude by raising skeptical questions about the cogency of legal reasoning when the tacitly accepted background conditions that make it possible are not critically examined.     

当前医患纠纷解决模式的法律与道德评价

我国医患纠纷的最终解决是通过传统的民事诉讼途径,然而,这种模式并不符合医疗案件本身的特点。从法律和道德的角度而言,我们必须对医疗诉讼的制度设计重新进行反思,并在此基础上进行变革。     

论我国传染病防治法制建构

为完善我国传染病防治法律保障体系,回顾了新中国成立以来传染病防治法制建构历程,对不同时期传染病防治法制建设情况进行了梳理,总结了取得的主要成就及不足。我国传染病防治法制建设取得成效的关键在于坚持以人民为中心的立法价值观,坚持预防为主的立法指导思想,坚持集中统一领导、依法防疫的基本原则。为补齐我国传染病防治法律保障体系短板,应创新法律调控机制、完善配套立法及地方立法、重视立法中的技术性因素。     

E Contrario Reasoning: The Dilemma of the Silent Legislator

Summary This contribution offers an evaluation of e contrario reasoning in which the interpretation of a legal rule is based on the context of the law system (contextual e contrario reasoning). A model is presented which will show all the explicit and implicit elements of the argument at work and will also point out how these distinct parts are interrelated. By questioning the content and justificatory power of these elements, the weak spots in the argument can be laid bare. It will be argued that e contrario reasoning inevitably requires a dubious argumentative step, which renders the argument intrinsically weak. The model is applied to a European lawsuit on French cheese.     

论医务人员在医疗事故技术鉴定过程中的法律地位

目前,医疗事故技术鉴定过程中忽视了医务人员应有的地位。从法律规定和程序正义、当事人理论等方面明确了医务人员在鉴定中的法律地位。论述了医务人员应当是医疗事故技术鉴定的当事人,其在鉴定中享有当事人的权利和义务,这对保护医务人员的合法权益有着重要意义。     

The transconfessional character of the doctrine of justification and its depiction on the title page of the Brest Bible

Abstract

This article examines the illustration on the Brest Bible's title page, relating it to the woodcut, The Law and the Gospel or Law and Grace, created forty-five years earlier to provide a visual aid for Luther's doctrine of salvation by faith and God's grace alone. Luther's reflections on justification, while original in thrust, had been preceded by centuries of the Church's teaching on the subject. Law and Grace appeared among book illustrations, particularly on the title pages of Bibles, not only in Lutheran editions, but also in those commissioned by other confessions. Sometimes the schema would be deliberately altered to modify the message. This essay shows how the title page of the Brest Bible provides a striking example, and that in light of Calvin's teaching, the image there reveals a subtle, but significantly modified reinterpretation.     

Ethical and Legal Considerations in the Training of Mental Health Professionals

Summary

A discussion is provided regarding ethical and legal considerations that relate to the training of mental health professionals. A training program which emphasizes a proactive approach to identifying and resolving potential ethical and legal problems, and their close connection with clinical issues is described, as are the responsibilities of supervisors and supervisees in such a program. For illustrative purposes, a training vignette and a clinical vignette conclude the article.     

On the processing of arguments

This paper is concerned with the processing of informal arguments, that is, arguments involving probable truth. A model of informal argument processing is presented that is based upon Hample's (1977) expansion of Toulmin's (1958) model of argument structure. The model postulates that a claim activates an attitude, the two components forming a complex that in turn activates reasons. Furthermore, the model holds occurrence of the reason, or possibly the claim and the reason, activates values. Three experiments are described that provide support for the model.This research was supported by the Mellon Foundation and by the Office of Educational Research and Improvement of the Department of Education via an award for the Center for the Study of Learning to the Learning Research and Development Center. The contents of the paper are not necessarily the position of any of these organizations.