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.     

In the Field – The Development of Reasons in Criminal Proceedings

This paper is concerned with argumentation in legal proceedings, namely in criminal cases. My interest is to explore how in the legal realm different argumentation fields interact, the juridical field being just one of them. The paper lays out an approach of studying argumentation in the legal realm in the framework of an ethnographic methodology by identifying the “topical rules” the participants in criminal trials adhere to. Suggesting the notion of field-dependence as a good starting point for the analysis of legal argumentation, I will give several examples of different fields of argumentation interacting in criminal proceedings. The examination of what counts as a good reason and how arguments are employed, negotiated, and evaluated within a criminal proceeding might shed light on the practice of constructing facts and arriving at decisions in court. It can furthermore point at the constitution of legal rationality and how it is produced in criminal trials. I argue that rationality in criminal proceedings is interactively accomplished by negotiating different standards of validity.     

Reconstructing Complex Analogy Argumentation in Judicial Decisions: A Pragma-Dialectical Perspective

Empirical research in the field of legal interpretation shows that, in many cases, analogy argumentation is complex rather than simple. Traditional analytical approaches to analogy argumentation do not explore that complexity. In most cases analogy argumentation is reconstructed as a simple form of argumentation that consists of two premises and a conclusion. This article focuses on the question of how to analyze and evaluate complex analogy argumentation. It is shown how the pragma-dialectical approach provides clues for analyzing complex analogy argumentation and how the criteria for evaluating analogy argumentation can be used to reconstruct these types of complex analogy argumentation in Dutch case law. The critical questions in the argumentation scheme do not only serve as a tool for analyzing arguments justifying analogy argumentation, but are also helpful in analyzing arguments against a specific analogy argumentation.     

The Pragma-Dialectical Analysis and Evaluation of Teleological 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.

Des raisons d'être d'une argumentation rhétorique selon Aristote

The main purpose of this paper is to explore the reasons Aristotle gives for being able to use rhetorical argumentation, which is obviously not a scientific mode of expression. This faculty which was condemned by Plato as lacking morality, is paradoxically regarded by Aristotle as necessary on moral grounds. For, according to him, it would be blameworthy to keep silent when being verbally assailed. The necessity of rhetoric is, however, more deeply founded. First, because justice has to be saved from its enemies in the City's courts of law. Secondly, because everyone has to be convicted to follow in practice the rules of the City's laws and such a conviction, in the case of the multitude, cannot be obtained by the means of scientific arguments. Thirdly and above all, because, in forensic disputes, characteristics of free political societies, the demagogic power, which regularly leads to tyrannical regimes, can only be avoided by the weapons of rhetoric. From these explanations, one does see that rhetoric, for Aristotle, seems to be the necessary substitute for ancient and traditional instruments securing obedience to legal justice, i.e. myths and pure constraint or coercion. In civilized and free political communities, rhetoric is required for civilization and freedom.

---

Des raisons d'être d'une argumentation rhétorique selon Aristote

     

Evaluating Arguments Based on Toulmin’s Scheme

Toulmin’s scheme for the layout of arguments (1958, The Uses of Argument, Cambridge University Press, Cambridge) represents an influential tool for the analysis of arguments. The scheme enriches the traditional premises-conclusion model of arguments by distinguishing additional elements, like warrant, backing and rebuttal. The present paper contains a formal elaboration of Toulmin’s scheme, and extends it with a treatment of the formal evaluation of Toulmin-style arguments, which Toulmin did not discuss at all. Arguments are evaluated in terms of a so-called dialectical interpretation of their assumptions. In such an interpretation, an argument’s assumptions can be evaluated as defeated, e.g., when there is a defeating reason against the assumption. The present work builds on recent research on defeasible argumentation (cf. e.g. the work of Pollock, Reiter, Loui, Vreeswijk, Prakken, Hage and Dung). More specifically, the author’s work on the dialectical logic DEFLOG and the argumentation tool ARGUMED serve as starting points.     

Certainty,reasonableness and argumentation in law

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialectical notion of rationality this alternative account espouses an ambitious approach to reasoning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their reciprocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive.     

Legal Progress Through Pragma-Dialectics? Prospects Beyond Analogy and E Contrario

Pragma-dialectical approaches to legal argumentation seem to be rather different from traditional approaches appealing to standards of propositional logic. Pragma-dialectical analysis of arguments by analogy and e contrario seem to fall foul to the rigors of logical analysis, in which problems or even concepts of analogy and e contrario seem to disappear. The brunt of both types of special legal argumentation appears to be borne by often implicit general principles and an appeal to the system of the law as a whole. Still, pragma-dialectics and logical analysis of legal argument are best seen as fruitfully supplementing each other in ongoing research of ever evolving legal argument.     

Strategic Maneuvering with the Intention of the Legislator in the Justification of Judicial Decisions

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 seeing to it that his standpoint is sufficiently defended according to the requirements of the burden of proof of a judge in a rational critical discussion and how he tries at the same time to be rhetorically convincing for the legal audience by presenting the decision as a choice that is in line with the argumentation schemes and starting points that can be considered as accepted by the legal community in the US and by the US community as a whole.

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.     

Does Arguing from Coherence Make Sense?

In this paper the argument from coherence is submitted to a critical analysis. First, it is argued to be a complex form of coordinative argumentation, structured on various argumentative levels. Then, using the pragma-dialectical theory of argumentation a distinction is brought out between two basic forms of the argument from coherence: in one use this argument occurs as a sequence of two symptomatic arguments; in the other use we have a main symptomatic argument supported by a subordinate pragmatic argument. Finally, from an evaluative point of view it is assessed whether the argument from coherence can be found acceptable as a tool for settling disputes. It is claimed that in general, we can welcome this argumentative structure as sound and fully acceptable provided that we are aware of the interpretative discretion its use implies. A preliminary version of this essay was presented at the symposium organised by the Department of Speech Communication, Argumentation Theory, and Rhetoric at the University of Amsterdamon the 27/02/04. I wish to express my indebtedness to Dora Achourioti, Francesco Belvisi, Frans van Eemeren, Eveline Feteris, Bart Garssen, Jean Wagemans, Peter Houtlosser, and Henrike Jansen for their helpful remarks. Needless to say, the responsibility for the views expressed herein as well as for any errors of form or content rests solely with me.     

Argumentation Schemes in Persuasive Brochures

Many public information documents attempt to persuade the recipients that they should engage in or refrain from specific behaviour. This is based on the assumption that the recipient will decide about his or her behaviour on the basis of the information given and a rational evaluation of the pros and cons. An analysis of 20 public information brochures shows that the argumentation in persuasive brochures is often not marked as such. Argumentation is presented as factual information, and in many instances the task of making argumentational links and drawing conclusions is left to the reader. However, since the information offered does follow familiar argumentational schemes, readers can, in principle, reconstruct the argument. All the brochures make use of pragmatic argumentation (argumentation from consequences),i. e.,they formulate at least certain benefits of the desirable behaviour or disadvantages of the undesirable behaviour. In addition, they make regular use of argumentation from cause to effect and argumentation from example. Argumentation from rules and argumentation from authority are less frequently used. This empirical analysis of the use of argumentation schemes is a solid base for interesting and rich hypotheses about the cognitive processing of persuasive brochures. Central processing requires the reader to be able to reconstruct argumentation from informational texts and to identify and evaluate various types of argumentation.     

“Let Me Tell You Why!”. When Argumentation in Doctor–Patient Interaction Makes a Difference

This paper throws some light on the nature of argumentation, its use and advantages, within the setting of doctor–patient interaction. It claims that argumentation can be used by doctors to offer patients reasons that work as ontological conditions for enhancing the decision making process, as well as to preserve the institutional nature of their relationship with patients. In support of these claims, selected arguments from real-life interactions are presented in the second part of the paper, and analysed by means of a model of argumentation borrowed from classical rhetoric, and refined according to the modern orientation of the pragma-dialectic approach.     

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.     

Abstract argumentation and explanation applied to scientific debates

Abstract argumentation has been shown to be a powerful tool within many fields such as artificial intelligence, logic and legal reasoning. In this paper we enhance Dung’s well-known abstract argumentation framework with explanatory capabilities. We show that an explanatory argumentation framework (EAF) obtained in this way is a useful tool for the modeling of scientific debates. On the one hand, EAFs allow for the representation of explanatory and justificatory arguments constituting rivaling scientific views. On the other hand, different procedures for selecting arguments, corresponding to different methodological and epistemic requirements of theory evaluation, can be formulated in view of our framework.     

On Argumentation Schemes and the Natural Classification of Arguments

We develop conceptions of arguments and of argument types that will, by serving as the basis for developing a natural classification of arguments, benefit work in artificial intelligence. Focusing only on arguments construed as the semantic entities that are the outcome of processes of reasoning, we outline and clarify our view that an argument is a proposition that represents a fact as both conveying some other fact and as doing so wholly. Further, we outline our view that, with respect to arguments that are propositions, (roughly) two arguments are of the same type if and only if they represent the same relation of conveyance and do so in the same way. We then argue for our conceptions of arguments and argument types, and compare them to alternative positions. We also illustrate the need for, and some of the strengths of, our approach to classifying arguments through an examination of aspects of two prominent and recent attempts to classify arguments using argumentation schemes, namely those of M. Kienpointner and D. Walton. Finally, we clarify how our conception of arguments and of argument types can assist in developing an exhaustive classification of arguments.     

Critical Legal Studies and argumentation theory

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the role of legal reasoning in the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory.     

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.     

The Burden of Proof and Its Role in Argumentation

The notion of “the burden of proof” plays an important role in real-world argumentation contexts, in particular in law. It has also been given a central role in normative accounts of argumentation, and has been used to explain a range of classic argumentation fallacies. We argue that in law the goal is to make practical decisions whereas in critical discussion the goal is frequently simply to increase or decrease degree of belief in a proposition. In the latter case, it is not necessarily important whether that degree of belief exceeds a particular threshold (e.g., ‘reasonable doubt’). We explore the consequences of this distinction for the role that the “burden of proof” has played in argumentation and in theories of fallacy.