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

Feteris, Eveline T.

doi:10.1007/s10503-005-0512-0

Cited by 23 publications

(9 citation statements)

References 10 publications

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“…13 See e.g., the contributions collected in MacCormick and Summers (1991); cf. Goldsworthy (2005) and Feteris (2005). See also Radin (1930Radin ( , 1942.…”

Section: Subjective and Objective Purposementioning

confidence: 99%

What is the Reason for This Rule? An Inferential Account of the Ratio Legis

Canale

Tuzet

2009

Argumentation

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Several legal arguments use the notion of ratio legis in order to sustain a normative conclusion, in particular the argument from analogy and some forms of teleological argumentation. However, determining the ratio is often a difficult and controversial task. In this paper we look firstly at the speech acts typically performed by legal practitioners in order to determine the ratio and, secondly, we take into account the argumentative commitments they undertake in so doing and the argumentative constraints put on them. This will lead us to distinguish different uses of the notion of ratio legis and to ask on what conditions each of them is justified.The final cause of the law is the welfare of society. The rule that misses its aim cannot permanently justify its existence.(B. N. Cardozo) Two ExamplesWhat is the ratio legis? It is the purpose of a legal rule; in particular, in civil law systems, the purpose of a statute enacted by the legislature. The ratio legis is important for legal theory and legal argumentation for two reasons at least. It plays a

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“…13 See e.g., the contributions collected in MacCormick and Summers (1991); cf. Goldsworthy (2005) and Feteris (2005). See also Radin (1930Radin ( , 1942.…”

Section: Subjective and Objective Purposementioning

confidence: 99%

What is the Reason for This Rule? An Inferential Account of the Ratio Legis

Canale

Tuzet

2009

Argumentation

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“…From a pragma-dialectical perspective the judge must show that the arguments that form part of the complex argumentation reconstructed above are acceptable in 3 In Feteris (2005) I explain that in legal decisions teleological argumentation is always based on a complex argumentation in which it is claimed that application of a rule is (un)desirable because it would lead to consequences that can be considered as (un)desirable from the perspective of the goal of the rule. Often reference to the consequences remains implicit but for the evaluation it is important that the intermediate step explicit.…”

Section: A Pragma-dialectical Reconstruction Of the Burden Of Proof Omentioning

confidence: 99%

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

Feteris

2008

Argumentation

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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.

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“…As concerns the justification of 1.1b and 1.1d, in earlier publications (Feteris 2005) I have specified what the burden of proof of a judge who puts forward teleological-evaluative argumentation exactly amounts to. On the level of the sub-argumentation in support of 1.1b respectively 1.1d, the judge must specify why the consequences of application in the concrete case of R' are desirable and why the consequences of R" are undesirable in light of the goal of the rule:…”

Section: The Justification Of the Desirability Of The Consequences Ofmentioning

confidence: 99%

Weighing and Balancing in the Justification of Judicial Decisions

Feteris

2008

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Abstract: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 argumenation 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 consists of different levels of argumentation and it is explained how these levels of argumentation relate to the burden of proof of a judge who gives a decision that is based on a weighing and balancing in which teleological-evaluative considerations are invoked.Résumé: Il est largement accepté dans la théorie du droit que les décisions dans les procès difficiles se fondent sur un balancement d'arguments opposés. Toutefois on ne donne aucune reconstruction de la structure profonde de l'argumentation complexe qui sous-tend la justification des ces décisions. L'auteur développe une approche fondée sur les réflexions d'une évaluation téléologique pour analyser le balancement des arguments qui justifient les décisions judi-ciaires. La justification est reconstruite comme une argumentation complexe à différents niveaux, et on explique comment ces niveaux d'argumentation se relient à la charge de preuve d'un juge qui donne une décision fondée sur un ba-lancement dans lequel il invoque des réflexions d'évaluations téléologiques.

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

Cited by 23 publications

References 10 publications

What is the Reason for This Rule? An Inferential Account of the Ratio Legis

What is the Reason for This Rule? An Inferential Account of the Ratio Legis

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

Weighing and Balancing in the Justification of Judicial Decisions

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