The Burden of Argumentation in Legal Disputes

Abstract

Juristic argumentation must in normal cases lead to a positive conclusion. The adoption of the rules of the burden of argumentation is, therefore, necessary. It is the task of the normative theory of juristic argumentation to formulate and to justify these rules.. The rules of the burden of argumentation are constitutive rules. They do not impose duties or obligations to justify, but they state under what conditions a thesis counts as justified. The basic problem lies in the second-order justification, that is, in the justification of the rules of the burden of argumentation. Their rational justification is a precondition for rational juristic discourse.

Statutory Interpretation as Argumentation

“…The purpose of this chapter is to analyze types of interpretive arguments as argumentation schemes, or rather dialogical patterns of arguments, in which an interpretation is regarded as a defeasible viewpoint that needs to be supported by a pattern of reasoning and can be subject to default in case specific critical questions are successfully advanced. On this perspective, interpretive reasoning is framed within a broader dialectical framework, involving a specific burden of bearing out and defeating a specific interpretation (Gizbert-Studnicki 1990).…”

Argument Types and Fallacies in Legal Argumentation

“…As for theoretical issues that are connected with the problems mentioned in this contribution, the concept of the burden of argumentation (Gizbert-Studnicki 1990 ) should be discussed in the context of analysing the threshold conditions for the application of different types of arguments. As noted in the case study, the fact that the threshold conditions were not satisfi ed was simply asserted and not justifi ed.…”

The Polish School of Argumentation: A Manifesto

“…The research in Krakow has been significantly influenced by the methodological postulates of precision, rigour and clarity advanced by the LWS. The special focus has been on issues such as extensional semantics of legal interpretation (Woleński 1972), the burden of argumentation in legal disputes (Gizbert-Studnicki 2010) or the pragma-dialectic account of legal argumentation (Grabowski 1999). Several academics who were educated there continued and popularised this research approach in other institutions in Poland (such as Jerzy Wróblewski, who lived and worked in Łódź (Wróblewski 1992)) and abroad (such as Aleksander Peczenik in Lund, Sweden (Peczenik 1966(Peczenik , 2008).…”