I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

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. (shrink)

In this contribution the author develops an argumentation model for the reconstruction of weighing and balancing on the basis of teleological-evaluative considerations. The model is intended as a heuristic and critical tool for the rational reconstruction of the justification of judicial decisions. From the perspective of a rational discussion, it makes explicit the choices underlying the weighing and balancing on the basis of goals and values so that they can be made explicit and submitted to rational critique.

In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from legal practice, (...) it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand. (shrink)

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 argumentation 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. (shrink)

Should artificial intelligences ever be included as co-authors of democratic decisions? According to the conventional view in democratic theory, the answer depends on the relationship between the political unit and the entity that is either affected or subjected to its decisions. The relational conditions for inclusion as stipulated by the all-affected and all-subjected principles determine the spatial extension of democratic inclusion. Thus, AI qualifies for democratic inclusion if and only if AI is either affected or subjected to decisions by the (...) political unit in relevant ways. This paper argues that the conventional view is too simple; that it neglects democratic reasons to recognize only agents and/or moral patients as participants in decision-making. The claim defended is that AAP and ASP implicitly affirm requirements for agency and patiency. In ASP, the entity included must be an agent understood either in terms of legal status, capacity to comply with the law or ability to recognize legitimate authority. In AAP, the entity included must be a patient, understood either in terms of capacity for sentience or consciousness. Thus, the idea here is to explore the potential democratic inclusion of artificial intelligences by an updated account of the relevant conditions of agency and patiency that are implicit in democratic theory. Although conceivable that AI is or will be either affected or subjected in relevant ways to decisions made by political units, it is far less clear that AI will ever be agents or patients in the sense required for democratic inclusion. (shrink)

I give a pragma-dialectical reconstruction of the role of teleological-evaluative argumentation referring to goals and values in the justification of judicial decisions. I establish the role and place of this form of argumentation in complex forms of justification in which the argumentation interacts with other forms of legal argumentation. I will do this by integrating the insights from legal theory and legal philosophy into a pragma-dialectical framework for the analysis and evaluation of argumentation.