Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, “doctrinal” or “dogmatic” legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars “authorities”? Is p, as (...) advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The paper addresses these questions. (shrink)

In this paper, I argue that many arguments from expert opinion are strong arguments. Therefore, in many cases it is rational to rely on experts since in many cases the fact that an expert says that p makes it highly likely that p is true. I will defend this claim by providing 5 arguments that illuminate and elaborate on 5 crucial claims about expertise. In this way, I aim to undermine recent attempts to establish a rampant scepticism about arguments from (...) expert opinion. (shrink)

We propose a revised definition of “argument scheme” that focuses on describing argumentative performances and normative assessments that occur within an argumentative context, the social context in which the scheme arises. Our premise-and-conclusion structure identifies the typical instantiation of an argument in the argumentative context, and our critical framework describes a set of normative assessments available to participants in the context, what we call _practically normative_ assessments. We distinguish this practical normativity from the _rationally or universally normative_ assessment that might (...) be imposed from outside the argumentative context. Thus, the practical norms represented in an argument scheme may still be subject to rational critique, and the scheme avoids the is/ought fallacy. We ground our theoretical discussion and observations in an empirical study of US district court opinions resolving legal questions about copyright fair use and the lawyers’ briefs that led to them, instantiating our definition of argument scheme in the “argument for classification by precedent.” Our definition addresses some criticisms the argument-scheme construct has received. For example, using our data, we show that a minimally well formed instance of this type of argument does not shift any conventional burden from the proponent of the argument to its skeptics. We also argue that these argument schemes need not be seen as dialogical. (shrink)

This paper offers insights into the nature and design of critical questions as they are found in argumentation schemes. In the first part of the paper, I address some general concerns regarding their purpose and formulation. These include a discussion of their evaluative function, their relationship with the patterns of reasoning they accompany, as well as the differing formulations of critical questions currently on offer. I argue that the purpose of critical questions for humans ought to be to provide the (...) means for a scalar evaluation of the reasoning at hand. To do so, critical questions should be closely paired with individual premises in the accompanying pattern of reasoning and be open-ended. Doing so allows the roles of raising considerations relevant for the reasoning and scrutinizing those considerations to be clearly distinguished. In the second part of the paper, I offer a positive methodological proposal for the construction of questions and premises that aims at overcoming a number of the individual and systematic shortcomings of extant question styles. The paper concludes by arguing that the newly proposed approach is both normatively strong and practically useful for argumentation in context. (shrink)