This article models legal interpretation through argumentation and provides a logical analysis of interpretive arguments, their conflicts, and the resulting indeterminacies. Interpretive arguments are modelled as defeasible inferences, which can be challenged and defeated by counterarguments and be reinstated through further arguments. It is shown what claims are possibly (defensibly) or necessarily (justifiably) supported by the arguments constructible from a given interpretive basis, i.e., a set of interpretive canons coupled with reasons for their application. It is finally established under what (...) conditions such arguments provide single outcomes or rather support alternative interpretive conclusions, thus leading to propositions of law whose truth‐value is undetermined. (shrink)

Argumentation schemes are forms of reasoning that are fallible but correctable within a self-correcting framework. Their use provides a basis for taking rational action or for reasonably accepting a conclusion as a tentative hypothesis, but they are not deductively valid. We argue that teleological reasoning can provide the basis for justifying the use of argument schemes both in monological and dialogical reasoning. We consider how such a teleological justification, besides being inspired by the aim of directing a bounded cognizer to (...) true belief and correct choices, needs to take into account the attitudes of dialogue partners as well as normative models of dialogue and communicative activity types, in particular social and cultural settings. (shrink)

In The Uses of Argument, Stephen Toulmin proposed a model for the layout of arguments: claim, data, warrant, qualifier, rebuttal, backing. Since then, Toulmin’s model has been appropriated, adapted and extended by researchers in speech communications, philosophy and artificial intelligence. This book assembles the best contemporary reflection in these fields, extending or challenging Toulmin’s ideas in ways that make fresh contributions to the theory of analysing and evaluating arguments.

Relativistic theories and arguments are fairly common in legal thinking. A case in point is Stanley Fish's theory of interpretation, which applies to statutes and constitutions as well as to novels and poems. Fish holds, inter alia, (i) that an interpretation of a statute, a poem, or some other text can be true or valid only in light of the interpretive strategies that define an interpretive community, and (ii) that no set of interpretive strategies (and therefore no interpretation) is truer (...) or more valid than any other. In this article, I discuss these claims critically and argue that the very idea of an interpretive community is more or less unintelligible, and that in any case Fish's theory is self-refuting. I begin with a few words about the methods and techniques of statutory interpretation(Section 2). I proceed by introducing Fish's theory of interpretation, giving special consideration to some difficulties in Fish's account of the concept of an interpretive community (Sections 3-4). I then introduce two types of relativism, cognitive and moral (Section 5), and argue that Fish's theory asserts cognitive relativism in the shape of conceptual relativism and relativism about truth (Section 6). Having done that, I consider Donald Davidson's well-known objection to alternative conceptual schemes (Section 7) as well as the popular charge that relativism about truth is self-refuting (Section 8). (shrink)

This article reflects on the received view of the rupture which constitutes the beginning of a critical, ethical, political and legal opening, the understanding of which inhabits the cry of, and response to, injustice. It takes the very critique that feeds into, and is distorted by, practical reasoning, as its point of departure. Grasping this rupture as the complementary relation between deconstruction and radical alterity, would entail unreflectively accepting a certain kind of truthfulness—truthfulness as [in]correctness, manifesting in a relationship that (...) involves rootless and controlling movement of making and unmaking of world. In closely reading Wittgenstein and Heidegger on the level of seeing, showing and saying, truthfulness is shown to contain an essential tension between, on the one hand, the Socratic, metaphysically-bound notion of beingness, correctness and meaning-steering and, on the other hand, the pre-Socratic notion of unconcealment (a-lethia), which, pointing even earlier than pre-Socratics into aboriginality, involves attentive letting of gliding in the inexpressible saying of language. While steering is about generating new possibilities of expressibility, gliding is about poetic dwelling, or enduring inexpressibility as a constitutive part of saying. Although aletheia is taken to be the key influence on rootless post-foundational thinking, it is argued that unconcealment involves letting and enduring the presencing inexpressibility of place and home-coming, that is, worlding-rootedness; thus showing Heidegger’s originary politics as the district of the uncanny to be about worlding that attentively lets the presencing inexpressibility of earth be as place. In reading Heidegger’s views on humanism, beginning and language, the argument links inexpressibility—essentially and historically—to the grasping of the belongingness together of world, earth and place, viewing this belongingness as key to both the saying of art and of mortals dwelling together temporally, spatially, materially in a manner always strange to, and nearer than, the steering/controlling of beingness, time, space and place that the very gesture and emergence of critique is captive of and is not capable of attuning to and capturing. Art always estranges the metaphysical cycle of correctness which preserves pain and suffering—a cycle that inhabits a double bind of responding to violence and injustice generated by the violence of metaphysics with metaphysical violence and justice. In showing essential strife within truthfulness itself, Heidegger points to even greater and earlier problematic than the pre-Socratics—to the painful core of inexpressibility between the ontology of steering time, spaces and material—steering places—and the gliding temporality, spatiality and materiality of ontology of place. (shrink)

This article argues that to disrupt legal education in a radical sense, students need to become acquainted with the art of worldmaking and the view that law is a “way of worldmaking”. First, I show that law is a cultural semiotic practice that requires decoding and, for that reason, demands a creative intervention by those that want to know, understand, and do things with law. Altogether this amounts to recognizing the different modes in which law creates, and is part of, (...) worlds. Second, I propose that due to different features of their aesthetic form, comics are a particularly effective medium to place students before the myriad ways in which law and lawyers make and reproduce worlds. Third, I illustrate the argument by exploring how the Saga comic series, through its formal multimodality and narrative and cultural complexity, can make good on that challenge. (shrink)

Making a connection between ‘post-modernism’ and post-truth has by now become a standard trope, both within academia and popular discourse, despite post-truth’s only recent emergence as a concept. Such claims are often rather vague and fanciful and lack an altogether credible account of either phenomenon in many cases. This Chapter argues however that within a legal context, there is the emergence of a legal post-truth which is the direct consequence of a concrete form of post-modernity within legal practice and thought. (...) While law may be called upon to engage in judgments of ‘truth’ in numerous interesting ways, it does not itself have any particular form of privileged access to the truth of statements or allegations, even though it is often treated as doing so. However, the most persistent question which law must deal with, and indeed the most persistent question within legal philosophy, relates to a deeper form of inquiry into truth: the question of legal truth. In simple terms this refers to the correctness of any particular proposition of law. Within legal theory, this expands to the larger question of what makes, in general, any legal proposition valid, or true. Reflecting upon legal scholarship through the lens of truth reveals that theories of law can be broken down into two broad and radically distinct categories. On the one hand, there exist empirical accounts of law which fundamentally understand questions of legal truth as social questions whose answers are empirically demonstrable. On the other hand, there are ‘idealist’ accounts of law which view legal content, and hence truth, as existing in some way or other in a manner which transcends social practice and which is autonomous from it. Both of these classical accounts, while radically different, share an interesting paradox: they see truth in law as an objective fact, but one which is fleeting and distant, far from the paradigm of legal certainty upon which the ideology of law is partly based. However, such accounts of legal truth share many other unstated aspects, and are largely based upon ideas which place the separateness and completeness of legal systems at their heart, providing either a unified ideal or a unified empirically observable social practice. However, they are share a common flaw, namely the failure to account for what might be called a post-modern phase of development in law, in which ordinary legal questions now regularly require the complex and non-hierarchical interaction of competing legal systems with different ‘truths’ and different ways of arriving at such truths. Such phenomena are commonly referred to as legal or, at times, constitutional ‘pluralism’. This post-modern turn within law has also produced therefore what we might call a form of post-truth within law. This is particularly significant because it places under great strain both the empirical and ideal accounts of legal truth and require us to re-elaborate an account of what makes a legal proposition true. From certain perspectives, this legal post-truth shares certain important aspects with the cultural phenomenon of post-truth, namely its apparently capricious and deracinated nature. However, it is argued in this Chapter that, in the legal context at least, post-truth allows for the transcendence of the empirical/ideal divide and the revealing of deeper forms of legal truth and our ability to account for them through theory or, put more simply, explanation. Upon greater reflection, legal truth is generated by the very forms of argument, or modes, which allow access to it. Such forms of argument exist also to produce legal truths outside and between legal orders where these appear to conflict or collide. While some legal scholars and others claim that such pressures on structures of knowledge reveal the end of the potential for law to generate truth, it is argued here that, on the contrary, they require a more open and more transparent use of the pure methods and modes of reason which both reveal but also generate legal truth in the first place. This is relevant to post-truth more generally in one specific way, despite the numerous idiosyncrasies of legal truth and knowledge: when assertions of truth within structures of power seem to come to embody the perspectivism and relativism used as methods of deconstruction, the post-modern and deconstructionist projects themselves require radical change: they stay true to their goal of deconstructing structures and discourses of power by applying the classical epistemologies which are rejected by those in power. Just as legal outcomes which are asserted rather than reasoned or justified are most convincingly deconstructed through sober legal modes, so can the post-modernist project find purpose in a world where dominant epistemes seem to have come to embody a simplistic version of post-modernist critiques. (shrink)