In this paper we will analyse the issue of defeasibility in the law, taking into account research carried out in philosophy, artificial intelligence and legal theory. We will adopt a very general idea of legal defeasibility, in which we will include all different ways in which certain legal conclusions may need to be abandoned, though no mistake was made in deriving them. We will argue that defeasibility in the law involves three different aspects, which we will call inference‐based defeasibility, process‐based (...) defeasibility, and theory‐based defeasibility. Only the integration of these three perspectives allows us to provide a satisfactory account of the role of defeasibility in legal reasoning. (shrink)

In this article, we try to trace the relationship between semiotics and theory of legal reasoning using Peirce’s idea that all reasoning must be necessarily in signs: every act of reasoning/argumentation is a sign process, leading to “the growth of knowledge. The broad scope and universal character of Peirce’s sign theory of reasoning allows us to look for new conciliatory paradigms, which must be presented in terms of possible synthesis between the traditional approaches to argumentation. These traditional approaches are strongly (...) affected by either the dialectical (logical) perspective or the rhetorical perspective on argumentation, while Peirce’s approach tends to reconcile the rhetorical and methodological aspects of reasoning. This reconcilation is best illustrated by Peircean analysis of argument’s logical and rhetorical structure; while the diagrammatic (iconic) analysis of arguments is performed in the system of Existential Graphs (which is Peirce’s major methodological system, designed for the expressions of propositions in point of their relational structure). Obviously, Peirce’s original division of argument parts offered only the characterisation of the sign activity (involved in the process of reasoning), and thus left much to be desired in terms of practical explication. (shrink)

Robert Alexy’s theory of legal argumentation is among the notable contributions made to mainstream jurisprudence in the last three decades. Remaining true to its rational discursive mission, it engages with both analytical positivism and natural law theories. A recent collection of essays edited by George Pavlakos explores Alexy’s theory from a number of philosophical standpoints, revealing its theoretical potential and flaws. By doing so, this volume helps us to gain a better understanding of the implications of Alexy’s theory of legal (...) argumentation, but also to identify new areas of research within the discourse theory of law. Although this collection is concerned with a critical examination of various aspects of Alexy’s work, it nonetheless draws attention to the dual characteristics of positive law, that is, the problematic separation of facts from values, law from morality, legal certainty from justice, which continue to preoccupy legal theory. In what follows I shall attempt to examine the debate between Alexy and the contributors to Pavlakos’s volume in order to gain a deeper understanding of the role of dichotomies in legal theory. Part 1 starts by explaining the theoretical background against which I have read the debate on Alexy’s theory of legal argumentation. I have explored the role of dichotomies in socio-legal research elsewhere. However, in the following pages, I shall use Alan Norrie’s critical examination of antinomies to throw light on some of the shortcomings of Alexy’s theory and also to discuss the concerns of mainstream jurisprudence. In that sense, this essay presents both Norrie’s and Alexy’s works, using the former to critically assess the latter. In Part 2, I briefly sketch the layout of Pavlakos’s collection to provide an overview of the type of questions that are discussed by the various contributors. Parts 3 and 4 bring into focus two issues that loom large in the collection. The first issue is Alexy’s central thesis on law’s claim to correctness, while the second concerns the duality of law exemplified by the attempts of mainstream jurisprudence to cope with the tension between the positivist notion of law and the idea of justice. In Part 5, I conclude the essay by reflecting on some of the implications of Alexy’s thesis. (shrink)

Managers of multinational companies often favour an aggressive tax avoidance strategy that pushes the legal limits onto the advantage of shareholders and the disadvantage of the spirit of democratically legitimized tax laws. The public and media debate whether such aggressive behaviour is immoral. Aggressive tax avoidance is a subset of the aggressive legal interpretations potentially observable in all fields which places little weight on the will of a democratically legitimized legislation. A thorough ethical analysis based on the deontological approach of (...) Kant demonstrates that aggressive tax avoidance as a special case of operating on the edge of legal boundaries is potentially immoral. Applying the Kantian “contradiction of conception or will” test shows that this maxim might not be conceived or willed as a general law of nature. If all natural or legal persons aggressively interpret laws on all subjects and in every imaginable situation, then central principles of the system of law we all rely upon would be severely compromised. Therefore, aggressive tax avoidance by managers of multinational companies may violate the managers’ moral duty to obey not only the letter but also the intention or spirit of the law. The validity of the argumentation depends critically on the formulation and interpretation of the respective maxims and on assumptions about the legal system. Preserving central elements of Kantian philosophy, the article demonstrates the complexity of a philosophical argumentation which tries to justify the moral intuitions that underpin the common negative evaluation of aggressive legal strategies in business. (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)

The paper aims at a critical discussion of Alexy’s conception of the relationship between law and morality, which is known to insist on their necessary connection. After a brief recapitulation of this conception, the author scrutinizes three of its essential elements: the thesis of the dual nature of law, the argument from law’s claim to moral correctness, and the idea of an objective morality. Finally, he sketches his own position which, in some respects, resembles Alexy’s view, but also differs from (...) it in certain relevant points. (shrink)

Negotiation research primarily focuses on negotiators? interests in order to understand negotiation and offer advice about the prospective outcome. Win-win outcomes, i.e., outcomes that serve the interests of all negotiating parties, have been established and promoted as the ultimate goal for any negotiation situation. We offer a perspective that draws on Aristotle's philosophical program and discuss how the outcome is not defined by the parties? interests, but by the intersubjective validity of claims, which can essentially be treated as representative of (...) the ?truth.? (shrink)

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. (shrink)

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. (shrink)

Robert Alexy’s theory of legal argumentation is among the notable contributions made to mainstream jurisprudence in the last three decades. Remaining true to its rational discursive mission, it engages with both analytical positivism and natural law theories. A recent collection of essays edited by George Pavlakos explores Alexy’s theory from a number of philosophical standpoints, revealing its theoretical potential and flaws. By doing so, this volume helps us to gain a better understanding of the implications of Alexy’s theory of legal (...) argumentation, but also to identify new areas of research within the discourse theory of law. Although this collection is concerned with a critical examination of various aspects of Alexy’s work, it nonetheless draws attention to the dual characteristics of positive law, that is, the problematic separation of facts from values, law from morality, legal certainty from justice, which continue to preoccupy legal theory. In what follows I shall attempt to examine the debate between Alexy and the contributors to Pavlakos’s volume in order to gain a deeper understanding of the role of dichotomies in legal theory. Part 1 starts by explaining the theoretical background against which I have read the debate on Alexy’s theory of legal argumentation. I have explored the role of dichotomies in socio-legal research elsewhere. However, in the following pages, I shall use Alan Norrie’s critical examination of antinomies to throw light on some of the shortcomings of Alexy’s theory and also to discuss the concerns of mainstream jurisprudence. In that sense, this essay presents both Norrie’s and Alexy’s works, using the former to critically assess the latter. In Part 2, I briefly sketch the layout of Pavlakos’s collection to provide an overview of the type of questions that are discussed by the various contributors. Parts 3 and 4 bring into focus two issues that loom large in the collection. The first issue is Alexy’s central thesis on law’s claim to correctness, while the second concerns the duality of law exemplified by the attempts of mainstream jurisprudence to cope with the tension between the positivist notion of law and the idea of justice. In Part 5, I conclude the essay by reflecting on some of the implications of Alexy’s thesis. (shrink)

In practical reasoning, reasonableness ‐ as opposed to rationality ‐ is an important concept. This paper explores the notion of reasonableness as applied exclusively to legal decisions. Conflicting values or legal requirements can make rationally deduced solutions unattainable, and may call for criteria of reasonableness, Conflicting values must be weighed, and weighed against each other, in search of a point of equilibrium between them. Legal cases are more or less difficult to solve, depending on the difficulty of finding a unique (...) optimal equilibrium. The relevance of factual and ideal consensus for the determination of a reasonable legal decision is underlined. Finally, a definition of “reasonable legal decision” is proposed. (shrink)

This study examines the concept of argumentation empirically, to correct the normative conception of argumentation adopted by most scholars since Aristotle. They are not interested in what argumentation is, but in what it ought to be. The pre-Aristotelian approach is preferable, because it recognizes that argumentation, although it includes persuasion, also embraces other eristic techniques in which the speaker does not necessarily seek to persuade, but simply to prevail. This broader descriptive and pragmatic analysis explains the different ways in which (...) discourse actually occurs and particular arguments succeed, leaving in a secondary place the opinion of each author on how they should be. (shrink)

En este artículo me ocuparé de criticar al argumento de Michelini sobre la validez del principio de no interrupción de la vida humana en su estado inicial (159) y la justificación de su aplicación no rigorista.