In this contribution two approaches of legal analogy-argumentation will be discussed: the traditional, monological approach and the dialogical approach. This contribution aims at answering the question in how far these approaches may serve as adequate instruments for rational reconstructions of this analogy-argumentation. We will also indicate along which lines the insights resulting from these approaches may be developed further in order to arrive at a more comprehensive and systematic method for a rational reconstruction of argumentation of this sort. We will (...) make use of the insights gained from the pragma-dialectical argumentation theory. (shrink)

In this paper I investigate the similarities betweenthe dialectical procedure in the pragma-dialecticaltheory and dialectical procedures in AI and Law. I dothis by focusing on one specific type of reasoning inlaw: analogy argumentation. I will argue that analogyargumentation is not only a heuristic forfinding new premises, but also a part of thejustification of legal decisions. The relevantcriteria for the evaluation of analogy argumentationare not to be found at the logical level of inference,but at the procedural level of the discussion. I (...) willproceed as follows. I start with an outline ofPrakken's theory of argumentation frameworks andprocedural models. Then, I will discuss Peczenik'sanalysis of analogy argumentation and try to combineit with the descriptive-normative research ofMacCormick and Summers. Finally, I propose asystematization of the criteria for the evaluation ofanalogy argumentation within the framework of apragma-dialectical notion of an argumentation scheme. (shrink)

The article discusses topics in the context of contemporary legal argumentation. It starts with a sketch of the development of topics from ancient times until the present day. Here the author focuses on the theory of the German legal philosopher Theodor Viehweg, which was most influential to legal argumentation in the 20th century. Then a modern concept of topics is introduced and finally the author discusses the role of topics in contemporary legal argumentation. In this part the distinction between topoi (...) in the weak sense (practically all argumentation schemes) and in the strong sense (specific legal topoi as listed by Gerhard Struck in 1971 is introduced. The author argues that Viehweg’s claim that topics plays an important role in legal argumentation is problematic, because topoi in the weak sense are certainly of high importance, but this is almost trivial. Topoi in the strong sense on the other hand are only of minor importance for legal practice. What characterises legal discourse much more is a set specific pragmatic discourse rules, discussed at the end of the paper. (shrink)

Faced with the threat of pandemic influenza, several countries have made the decision to put a number of measures in place which have been incorporated into national plans. In view of the magnitude of the powers and responsibilities that States assume in the event of a pandemic, a review of the various national preparedness and response plans for pandemic influenza brought to light a series of extremely important ethical concerns. Nevertheless, in spite of the recent emergence of literature focusing specifically (...) on the ethical aspects of pandemics, too few studies explicitly examine public participation as one means of ethical contribution to public health policies. Thus this article seeks, in the first place, to present an analysis of the various national preparedness and response plans for pandemic influenza, and secondly, to outline the role that the plans envisage for ethics and more importantly for public participation. (shrink)