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.

The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the (...) final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values. (shrink)

Originally published in 1968. This is a critical study of the concept of 'rule' featuring in law, ethics and much philosophical analysis which the author uses to investigate the concept of 'rationality'. The author indicates in what manner the modes of reasoning involved in reliance upon rules are unique and in what fashion they provide an alternative both to the modes of logico-mathematical reasoning and to the modes of scientific reasoning. This prepares the groundwork for a methodology meeting the requirements (...) of the fields using rules such as law and ethics which could be significant for communications theory and the use of computers in normative fields. Other substantive issues related to the mainstream of legal philosophy are discussed - theories of interpretation, the notion of purpose and the requirements of principled decision-making. The book utilizes examples drawn from English and American legal decisions to suggest how the positions of legal positivism and of natural law are equally artificial and misleading. (shrink)

This paper presents a formal reconstruction of a Dutch civil legal case in Prakken’s formal model of adjudication dialogues. The object of formalisation is the argumentative speech acts exchanged during the dispute by the adversaries and the judge. The goal of this formalisation is twofold: to test whether AI & law models of legal dialogues in general, and Prakken’s model in particular, are suitable for modelling particular legal procedures; and to learn about the process of formalising an actual legal dispute.

This article presents a formal dialogue game for adjudication dialogues. Existing AI & law models of legal dialogues and argumentation-theoretic models of persuasion are extended with a neutral third party, to give a more realistic account of the adjudicator’s role in legal procedures. The main feature of the model is a division into an argumentation phase, where the adversaries plea their case and the adjudicator has a largely mediating role, and a decision phase, where the adjudicator decides the dispute on (...) the basis of the claims, arguments and evidence put forward in the argumentation phase. The model allows for explicit decisions on admissibility of evidence and burden of proof by the adjudicator in the argumentation phase. Adjudication is modelled as putting forward arguments, in particular undercutting and priority arguments, in the decision phase. The model reconciles logical aspects of burden of proof induced by the defeasible nature of arguments with dialogical aspects of burden of proof as something that can be allocated by explicit decisions on legal grounds. (shrink)

Although the genetic argument is a widely used interpretative argument, what it amounts to does not seem to be altogether clear. Basic forms of the genetic argument that are distinguished are often too rough to provide an adequate basis for the evaluation of an interpretative decision. In this article I attempt to provide a more detailed analysis of the genetic argument by making use of pragma-dialectical insights. The analysis clarifies the character and the structure of different forms of the genetic (...) argument and thus the elements that are relevant for the evaluation of the argument.*. (shrink)

a This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.a (TM) These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. (...) In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the booka (TM)s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (a defeasiblea (TM)) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail. (shrink)

Empirical research in the field of legal interpretation shows that, in many cases, analogy argumentation is complex rather than simple. Traditional analytical approaches to analogy argumentation do not explore that complexity. In most cases analogy argumentation is reconstructed as a simple form of argumentation that consists of two premises and a conclusion. This article focuses on the question of how to analyze and evaluate complex analogy argumentation. It is shown how the pragma-dialectical approach provides clues for analyzing complex analogy argumentation (...) and how the criteria for evaluating analogy argumentation can be used to reconstruct these types of complex analogy argumentation in Dutch case law. The critical questions in the argumentation scheme do not only serve as a tool for analyzing arguments justifying analogy argumentation, but are also helpful in analyzing arguments against a specific analogy argumentation. (shrink)

SummaryThis contribution offers an evaluation of e contrario reasoning in which the interpretation of a legal rule is based on the context of the law system (contextual e contrario reasoning). A model is presented which will show all the explicit and implicit elements of the argument at work and will also point out how these distinct parts are interrelated. By questioning the content and justificatory power of these elements, the weak spots in the argument can be laid bare. It will (...) be argued that e contrario reasoning inevitably requires a dubious argumentative step, which renders the argument intrinsically weak. The model is applied to a European lawsuit on French cheese. (shrink)

Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...) conclusion only depends on the premises, and is independent of the argument that leads to the conclusion.This paper opposes the logical approach, and defends a procedural approach to legal reasoning. Legal conclusions are not true or false independent of the reasoning process that ended in these conclusions. In critical cases this reasoning process consists of an adversarial procedure in which several parties are involved. The course of the argument determines whether the conclusion is true or false. The phenomenon of hard cases is used to demonstrate this essential procedural nature of legal reasoning. (shrink)

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)

The author gives an analysis of the strategic manoeuvring in the justification of legal decisions from a pragma-dialectical perspective by showing how a judge tries to reconcile dialectical and rhetorical aims. On the basis of an analysis and evaluation of the argumentation given by the US Supreme Court in the famous Holy Trinity case, it is shown how in a case in which the judge wants to make an exception to a legal rule for the concrete case tries to meet (...) the dialectical reasonableness norm by seeing to it that his standpoint is sufficiently defended according to the requirements of the burden of proof of a judge in a rational critical discussion and how he tries at the same time to be rhetorically convincing for the legal audience by presenting the decision as a choice that is in line with the argumentation schemes and starting points that can be considered as accepted by the legal community in the US and by the US community as a whole. (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)

This paper answers the question how pragmatic argumentation which occurs in a legal context, can be analyzed and evaluated adequately. First, the author surveys various ideas taken from argumentation theory and legal theory on the analysis and evaluation of pragmatic argumentation. Then, on the basis of these ideas, she develops a pragma-dialectical instrument for analyzing and evaluating pragmatic argumentation in a legal context. Finally she demonstrates how this instrument can be used by giving an exemplary analysis and evaluation of pragmatic (...) argumentation in a decision of the Dutch Supreme Court. (shrink)

Rule-applying legal arguments are traditionally treated as a kind of syllogism. Such a treatment overlooks the fact that legal principles and rules are not statements which describe the world, but rather means by which humans impose structure on the world. Legal rules create legal consequences, they do not describe them. This has consequences for the logic of rule- and principle-applying arguments, the most important of which may be that such arguments are defeasible. This book offers an extensive analysis of the (...) role of rules and principles in legal reasoning, which focuses on the close relationship between rules, principles, and reasons. Moreover, it describes a logical theory which assigns a central place to the notion of reasons for and against a conclusion, and which is especially suited to deal with rules and principles. (shrink)

The thesis that propositions of law are intrinsically arguable is opposed by the antithesis that the Rule of Law is valued for the sake of legal certainty. The synthesis considers the insights of theories of rhetoric and proceduralist theories of practical reason, then locates the problem of indeterminacy of law in the context of the challengeable character of governmental action under free governments. This is not incompatible with, but required by the Rule of Law, which is misstated as securing legal (...) certainty. Defeasible certainty is the most that is desirable or achievable. (shrink)

In addition to ratio decidendi, judges are allowed to include obiter dicta in their decisions.The interpretative decision that an argument is superfluous may be justified by reference to the verbal presentation of the argument. In this paper I discuss several words and expressions that, in legal practice, are considered to be indicators of additional considerations. Starting from a pragma-dialectical characterization of additional considerations, I evaluate some examples of these cases in order to examine which words and expressions can be seen (...) as indicators of obiter dicta. (shrink)