The analysis of multimodal argumentation in advertising is a crucial and problematic area of research. While its importance is growing in a time characterized by images and pictorial messages, the methods used for interpreting and reconstructing the structure of arguments expressed through verbal and visual means capture only isolated dimensions of this complex phenomenon. This paper intends to propose and illustrate a methodology for the reconstruction and analysis of “double-mode” arguments in advertisements, combining the instruments developed in social semiotics, (...) pragmatics, and argumentation theory. An advertisement is processed through a five-step path. The analysis of its context, text genre, and images leads to a first representation of the messages that it encodes both pictorially and verbally (step 1). These first semantic representations are further enriched by including their polyphonic articulations and presuppositions (step 2), their explicatures (step 3), and their dialogical functions and illocutionary forces (step 4). These pragmatic steps retrieve the commitment structure of the ad, which allows a further argument analysis conducted through argumentation schemes (step 5). (shrink)

The innovative Moral Impact Theory (“MIT”) of law claims that the moral impacts of legal institutional actions, rather than the linguistic content of “rules” or judicial or legislative pronouncements, determine law’s content. MIT’s corollary is that legal interpretation consists in the inquiry into what is morally required as a consequence of the lawmaking actions. This paper challenges MIT by critiquing its attendant view of the nature of legal interpretation and argument. Points including the following: (1) it (...) is not practicable to predicate law’s content on the ability of legal officials to resolve moral controversies; (2) it would be impermissibly uncharitable to claim that participants in the legal system commit widespread error in failing to regard moral argument as the focus of legal interpretation; (3) whereas the legal official may initially respond to a conflict at the intuitive moral level, she must resolve the controversy at the deliberative, critical level, at which moral and legal thinking diverge; (4) because no two cases are precisely alike, and owing to the open texture of natural language, reference to extra-jurisdictional “persuasive” and “secondary” authority permeates legal argument, yet, nearly by definition, such linguistic sources cannot have engendered significant moral impacts in the home jurisdiction; and (5) one way or another, we ultimately arrive at linguistic contents. The paper concludes by accepting, as undeniable, that legal institutional actions have moral impacts, and generate moral obligations. Officials are obligated to adhere to certain constraints in their treatment of one another, cases, litigants and citizens. Less explored, however, have been the ways in which legal pronouncements likely morally impact the community, beyond the issue of a duty to obey the law. (shrink)

In this paper, we present a survey of the development of the technique of argument diagramming covering not only the fields in which it originated - informal logic, argumentation theory, evidence law and legal reasoning – but also more recent work in applying and developing it in computer science and artificial intelligence. Beginning with a simple example of an everyday argument, we present an analysis of it visualised as an argument diagram constructed using a software tool. In (...) the context of a brief history of the development of diagramming, it is then shown how argument diagrams have been used to analyze and work with argumentation in law, philosophy and artificial intelligence. (shrink)

This is an article about Legal Pragmatism, studied under the prism of the Philosophy of Law. The pragmatist philosophical current, born in the United States, was responsible for consolidating the line of legal reasoning aimed at obtaining the results that best meet social desires and human hopes. Legal Pragmatism is not presented as a Theory of Law, consubstantiating itself, in reality, in a method based on argumentation, capable of substantiating decision making. Finally, an attempt was (...) made to ponder on Legal Pragmatism in the Brazilian legal system, as a guide for new perspectives on the application of Law, with emphasis on the recent changes in the Law of Introduction to the Rules of Brazilian Law (Lei de Introdução às Normas do Direito Brasileiro). (shrink)

This book shows how research in linguistic pragmatics, philosophy of language, and rhetoric can be connected through argumentation to analyze a recognizably common strategy used in political and everyday conversation, namely the distortion of another’s words in an argumentative exchange. Straw man argumentation refers to the modification of a position by misquoting, misreporting or wrenching the original speaker’s statements from their context in order to attack them more easily or more effectively. Through 63 examples taken from different contexts (...) (including political and forensic discourses and dialogs) and 20 legal cases, the book analyzes the explicit and implicit types of straw man, shows how to assess the correctness of a quote or a report, and illustrates the arguments that can be used for supporting an interpretation and defending against a distortion. The tools of argumentation theory, a discipline aimed at investigating the uses of arguments by combining insights from pragmatics, logic, and communication, are applied to provide an original account of interpretation and reporting, and to describe and illustrate tactics and procedures that can be used and implemented for practical purposes.. This book will appeal to scholars in the fields of political communication, communication in general, argumentation theory, rhetoric and pragmatics, as well as to people working in public speech, speech writing, and discourse analysis. (shrink)

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal (...) interpretation are regarded as presumptions subject to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

Take “legal reality” to be the part of reality that actual legal thought and talk is dis- tinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not another (legal norms). We offer two arguments (...) that suggest that legal reality is disunified: one concerns the heteroge- neity of different entities that are part of legal reality; the other concerns variation within legal thought and talk. We then show that taking the possibility of the disunity of legal reality seriously has important upshots for how we think about the positivist and antipositivist traditions, the debate between them, and their relation to other parts of legal theory, such as critical legal theory and legal realism. (shrink)

The problem of establishing the best interpretation of a speech act is of fundamental importance in argumentation and communication in general. A party in a dialogue can interpret another’s or his own speech acts in the most convenient ways to achieve his dialogical goals. In defamation law this phenomenon becomes particularly important, as the dialogical effects of a communicative move may result in legal consequences. The purpose of this paper is to combine the instruments provided by argumentation (...) theory with the advances in pragmatics in order to propose an argumentative approach to meaning reconstruction. This theoretical proposal will be applied to and tested against defamation cases at common law. Interpretation is represented as based on a hierarchy of interpretative presumptions. On this view, the development of the logical form of an utterance is regarded as the result of an abductive pattern of reasoning in which various types of presumptions are confronted and the weakest ones are excluded. Conflicts of interpretations and equivocation become essentially interwoven with the dialectical problem of fulfilling the burden of defeating a presumption. The interpreter has a burden of explaining why a given presumption is subject to default, assuming that the speaker is reasonable and acting based on a set of shared expectations. (shrink)

Wil Waluchow has advanced perhaps the most convincing argument in favour of what he eloquently termed ‘inclusive legal positivism’, the view that a given legal system could make legal validity depend on moral truths. This chapter refocuses the case for the opposing view of exclusive positivism on the metaphysical tension in seeing law as an institutional social fact and yet for its validity to depend on something that is not a social fact, developing an understanding of official (...) mistake as a way of highlighting that tension. If legal validity itself is understood as a socially constructed status (something with which any legal positivist would agree), key officials (as a group) cannot be wrong about the criteria sufficient for institutional membership having been met. While the officials cannot be wrong about the sufficient conditions, they can be wrong about the necessary (gatekeeping) ones and the moral criteria that inclusive positivists say could be included among the criteria of validity are invariably understood to be necessary conditions. That might look like a point in favour of inclusive positivism, but it is only the sufficient conditions that are constitutive of legal validity. Two facets of legal decisions are then marshalled to buttress the case for exclusive positivism: that almost every legal decision is also a determination of validity, and that all such decisions are systemically treated as correct until reviewed by a court of superior jurisdiction (which is itself a sufficient condition for membership). The implication of this is that moral criteria, understood as gatekeepers for legal validity, cannot be constitutive of legal validity. (shrink)

This paper explores the possibility of a standard legal language (e.g. English) for a principled evolution of law in line with technological development. In doing so, reference is made to blockchain networks and smart contracts to emphasise the discontinuity with the liberal legal tradition when it comes to decentralisation and binary code language. Methodologically, the argument is built on the underlying relation between law, semiotics and new forms of media adding to natural language; namely: code and symbols. In (...) what follows, I will concentrate on the study of factors that explain why such approach can be fruitful for the future of law and innovation. I have three reasons for selecting this topic. The first is a more pragmatic reason, based on my current research of law as a linguistic phenomenon. Secondly, the topic does also touch the matter on binary code language, rivalrous to legal alphabetic language. Lastly, the study aims at emphasizing the pivotal role of the jurist as an interpreter in a changing society accommodating diverging realms of reality. The study is structured as follows. Firstly, a quick exam of the traits of blockchain networks would provide the contextual link to establish the arguments in support of the need of a standard legal language. Secondly, a comparison between liberal legal institutions and theory of semiotics is set to perceive their functioning and ascertain their limits in the light of todays unprecedented changes. Thirdly, a summary on blockchain networks’ legal features would constitute the thrust behind the idea of a uniform legal language. Methodologically, the argument does also establish some relations with classical laws of physics and philosophy of media. Its aim is to demonstrate how the suggested legal interpretation and semiotic-based approach can contribute to overcome existing stumbling blocks including, but not limited to, the lack of cooperation at the international level as well as the gap in State norms when it comes to innovation. In this sense, the proposed strategies do not intend to replace current advances in the legal thought. In contrast, it seeks to harmonise their results providing a methodical approach that can concur to inform a new technique to address new controversial issues. In practice, the proposed method regarding the adoption of a uniform legal language would lower transactive costs in terms of normative coordination in the matter of international cooperation and in the definition of applicable law among different legal systems. Alternatively, it might contribute to the convergence of legal systems and/or their underlying concepts. Differently put, article’s contribution can be envisaged in fostering juridical consistency with regards to different forms of languages’ coexistence. (shrink)

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials (...) in a normative way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

The debate on the argumentative turn in Public Policy and Administration (PPA), as reflective of the influence of politico-legal theory on the discipline, is reviewed with a thorough and indepth engagement with the Argumentation Theory (AT) literature. The focus in this article is in fact of a methodological nature since we argue that critical scholars - who have contributed to the general and specialized (i.e. political discourse analysis and critical contextualism) literature of AT as well as (...) politico-legal theory - pave the way to a novel methodology which will be exemplified through the analysis of the transparency concept. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good (...) life, naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...) and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

Aristotle divided arguments that persuade into the rhetorical (which happen to persuade), the dialectical (which are strong so ought to persuade to some degree) and the demonstrative (which must persuade if rightly understood). Dialectical arguments were long neglected, partly because Aristotle did not write a book about them. But in the sixteenth and seventeenth century late scholastic authors such as Medina, Cano and Soto developed a sound theory of probable arguments, those that have logical and not merely psychological force (...) but fall short of demonstration. Informed by late medieval treatments of the law of evidence and problems in moral theology and aleatory contracts, they considered the reasons that could render legal, moral, theological, commercial and historical arguments strong though not demonstrative. At the same time, demonstrative arguments became better understood as Galileo and other figures of the Scientific Revolution used mathematical proof in arguments in physics. Galileo moved both dialectical and demonstrative arguments into mathematical territory. (shrink)

When Hegel first addresses moral responsibility in the Philosophy of Right, he presupposes that agents are only responsible for what they intended to do, but appears to offer little, if any, justification for this assumption. In this essay, I claim that the first part of the Philosophy of Right, “Abstract Right”, contains an implicit argument that legal or external responsibility (blame for what we have done) is conceptually dependent on moral responsibility proper (blame for what we have intended). This (...) overlooked argument satisfies the first half of a thesis Hegel applies to action in the Encyclopaedia Logic, namely, that the outer must be inner, and thus provides a necessary complement for his more explicit treatment of the second half of that thesis, that the inner must be outer. The claim that agents are only responsible for what they intended to do might appear, at first, to risk conflating legal and moral responsibility and to lack the necessary means to deal with the phenomenon of moral luck, but I argue that if it is properly situated within the whole of Hegel's philosophy of action it can be saved from both of these consequences and so take its place as an essential component of Hegel's full theory of moral responsibility. (shrink)

Statutory interpretation involves the reconstruction of the meaning of a legal statement when it cannot be considered as accepted or granted. This phenomenon needs to be considered not only from the legal and linguistic perspective, but also from the argumentative one - which focuses on the strategies for defending a controversial or doubtful viewpoint. This book draws upon linguistics, legal theory, computing, and dialectics to present an argumentation-based approach to statutory interpretation. By translating and summarizing (...) the existing legal interpretative canons into eleven patterns of natural arguments - called argumentation schemes - the authors offer a system of argumentation strategies for developing, defending, assessing, and attacking an interpretation. Illustrated through major cases from both common and civil law, this methodology is summarized in diagrams and maps for application to computer sciences. These visuals help make the structures, strategies, and vulnerabilities of legal reasoning accessible to both legal professionals and laypeople. (shrink)

Presumption is a complex concept in law, affecting the dialogue setting. However, it is not clear how presumptions work in everyday argumentation, in which the concept of “plausible argumentation” seems to encompass all kinds of inferences. By analyzing the legal notion of presumption, it appears that this type of reasoning combines argument schemes with reasoning from ignorance. Presumptive reasoning can be considered a particular form of reasoning, which needs positive or negative evidence to carry a probative weight (...) on the conclusion. For this reason, presumptions shift the burden of providing evidence or explanations onto the interlocutor. The latter can provide new information or fail to do so: whereas in the first case the new information rebuts the presumption, in the second case, the absence of information that the interlocutor could reasonably provide strengthen the conclusion of the presumptive reasoning. In both cases the result of the presumption is to strengthen the conclusion of the reasoning from lack of evidence. As shown in the legal cases, the effect of presumption is to shift the burden of proof to the interlocutor; however, the shift a presumption effects is only the shift of the evidential burden, or the burden of completing the incomplete knowledge from which the conclusion was drawn. The burden of persuasion remains on the proponent of the presumption. On the contrary, reasoning from definition in law is a conclusive proof, and shifts to the other party the burden to prove the contrary. This crucial difference can be applied to everyday argumentation: natural arguments can be divided into dialectical and presumptive arguments, leading to conclusions materially different in strength. -/- . (shrink)

This paper compares current ways of modeling the inferential structure of practical reasoning arguments, and proposes a new approach in which it is regarded in a modular way. Practical reasoning is not simply seen as reasoning from a goal and a means to an action using the basic argumentation scheme. Instead, it is conceived as a complex structure of classificatory, evaluative, and practical inferences, which is formalized as a cluster of three types of distinct and interlocked argumentation schemes. (...) Using two real examples, we show how applying the three types of schemes to a cluster of practical argumentation allows an argument analyst to reconstruct the tacit premises presupposed and evaluate the argumentative reasoning steps involved. This approach will be shown to overcome the limitations of the existing models of practical reasoning arguments within the BDI and commitment theoretical frameworks, providing a useful tool for discourse analysis and other disciplines. In particular, applying this method brings to light the crucial role of classification in practical argumentation, showing how the ordering of values and preferences is only one of the possible areas of deep disagreement. (shrink)

The article examines the issue of a necessary connection between the phenomena of law and morality. According to legal positiv- ism, morality is not a criterion of the legitimacy for legal norms. The law can have any content including absolutely immoral (the so-called “separability thesis”). Law issues are not connected with discussing the moral merits of a possible judicial decision. They are only closely related to studying various purely legal phenomena like precedents, judicial discretion, legislatures, etc. The (...) ascriptive legal statements theory proposed by the Oxford School of Law (Herbert Hart, Joseph Raz, and others) serves as the core of contemporary legal positivism. This theory is based on the notion of defeasibility for legal responsibility without any moral reasoning. There, phenomena of law are interpreted as purely linguistic, not social constructions. Analysis of pure law language should provide all the needful tools to extract hidden meaning from any legal norm. This analysis does not require going beyond the legal language since it does not describe any real situations in the world, but merely expresses legal requirements, allowing to legally qualify some observed events. It completely eliminates any references to moral principles from the analysis of legal language. However the critical reconstruction theory of ascriptive legal statements shows limitations of the legal positivism’s analytical approach to the phenomena of law. The example of a fictitious legal collision offered demonstrates limitations of the legal positivism approach to the understand- ing of law phenomena. This collision is a complex conceptual mix of Frankfurt-style examples and imaginary situations in the Trolley Problem widely known in analytical ethics. It clearly demonstrates the possible paradox of a law judgment in situations where conditions for the recognition and cancellation of legal liability are the property of two different (not necessarily openly contradictory) legal norms. It can serve as a strong argument in favor of contemporary theories of natural law (Lon Fuller, John Finnis, Ronald Dworkin, and others), which questioned the possibility of creating a theory of pure law. They considered it senseless and impossible to draw any strict border between moral and legal norms. Immoral law cannot have the particular property of creating a moral obliga- tion to follow such like a law. Law cannot be built on legality only, and the answers to all significant legal questions should be found in moral theories. (shrink)

This paper challenges the Critical Legal Studies (CLS) claims of legal indeterminacy. It shall use a legal formalist logic and language as its main assertion, further maintaining that the CLS claims is only grounded in ambiguity and confusion. CLS is a legal theory that challenges and overturns accepted norms and standards in legal theory and practice. They maintained that law in the historical and contemporary society has an alleged impartiality, and it is used (...) as a tool of privilege and power – law is politics. Consequently, CLS maintained that these results to indeterminacy of law. Legal indeterminacy can be summed up as contrary to the common understanding that legal materials, statutes and case law, do not really answer legal disputes. Legal principles and doctrines, as CLS scholars claim, are said to be indeterminate, for it is riddle with gaps, conflicts, and anomalies that are widely present even in simple cases. Legal indeterminacy also rises because of the underlying political power – law is politics – that implicates law as merely a tool for oppression. This thesis shows that CLS assertions with legal indeterminacy is only grounded on ambiguity. On one hand, using the main concept of legal formalist logic and language grounded with sub-arguments: inherent generality of legal language, reasoned elaboration, and neutral principles, it refutes the CLS claims of legal indeterminacy. On the other, the paper maintains that their main reason of legal indeterminacy, ‘law is politics’, is merely a statement of fact that currently happens in society is sentimental and weak through counterexamples. (shrink)

Awarding rights to rivers, forests, and other environmental entities (EEs) is a new and increasingly popular approach to environmental protection. The distinctive feature of such rights of nature (RoN) legislation is that direct duties are owed to the EEs. This paper presents a novel rebuttal of the strongest argument against RoN: the no interest argument. The crux of this argument is that because EEs are not sentient, they cannot possess the kinds of interests necessary to ground direct duties. Therefore, they (...) cannot be legitimate rights-bearers. After considering and rejecting standard responses to this argument, the paper challenges its fundamental assumption: that rights-correlative duties must be grounded in the interests of the rights-bearer. The paper then presents the RoN critic with a dilemma. The critic must either accept that EEs are legitimate rights-bearers, or delegitimise many well-established rights-bearers along with EEs. Either way, the no interest argument loses its force. (shrink)

Despite the effort educators put into developing in students the critical writing and thinking skills needed to compose effective arguments, undergraduate college students are often accused of churning out essays lacking in creative and critical thought, arguments too obviously formulated and with sides too sharply drawn. Theories abound as to why these deficiencies are rampant. Some blame students’ immature cognitive and emotional development for these lacks. Others put the blame of lackadaisical output on the assigning of shopworn writing subjects, assigned (...) topics such as on American laws and attitudes about capital punishment and abortion. Although these factors might contribute to faulty written output in some cases, the prevailing hindrance is our very pedagogy, a system in which students are rewarded for composing the very type of argument we wish to avoid — the eristic, in which the goal is not truth seeking, but successfully disputing another’s argument. Certainly the eristic argument is the intended solution in cases when a clear‑cut outcome is needed, such as in legal battles and political campaigns when there can only be one winner. However, teaching mainly or exclusively the eristic, as is done in most composition classrooms today, halts the advancement of these higher‑order inquiry skills we try developing in our students. (shrink)

This qualitative research aims to explore and unravel the theory of natural law within its Greek context and its influence on political thought, particularly addressing the need to counteract the damages of tyranny and the cyclical succession of regimes, as articulated by Plato. This study reveals that the concept of natural law predates Stoics and it is rooted within the pre-Socratic natural philosophy. The study exposes that Aristotelian ethics and politics are rooted in the concept of natural law, ultimately (...) giving rise to the Aristotelian "mixed form of government" and laying the groundwork for republicanism. In extending this inquiry, I attempt to identify a parallel argument in ancient Iran, investigating the presence of natural law and its impact on the political landscape. The concept of natural law, emphasizing the alignment of social and political affairs with nature's rules, played a significant role in shaping the Indo-Iranian communities. The Sanskrit term rta and its Avestan equivalent, Aša, denote this foundational concept. However, the ascendancy of Zoroastrianism and its new theology led to the consolidation of all Indo-Iranian gods into the singular omnipotent deity, Ahura Mazdā. Ahura Mazdā, along with its prophet Zaraθuštra, possessed the authority to govern both earthly life and the afterlife. The exclusive attributes of Ahu and Ratu empowered God and its messenger to formulate and enact laws ensuring a place in heaven. Consequently, Divine Law and positive law became intricately intertwined within a unified legal framework. This divine law, sanctioned by God and enforced by the King, diverges from the Greek perspective, particularly that of Aristotle, where tyranny is seen as a deviation from the ideal political order. In the Iranian context, tyranny is synonymous with God's representation, sharing the holiness and regal attributes of a King, who, in the Iranian and Avestan sense, enjoys God's blessing as Xvarənah or Faer-e Izadi. The intertwining of law and authority of the King precludes the possibility of an independent legal sovereignty apart from the King’s authority. The monotheistic tenets of Zaraθuštra’s religion, officially established in the 4th century AD as the Religion of the State, solidify this integrated system. Consequently, the coexistence of republicanism or any mixed form of government within Iran becomes unattainable under the influence of this monotheistic doctrine. (shrink)

The phrase _secundum quid et simpliciter_ is the Latin expression translating and labelling the sophism described by Aristotle as connected with the use of some particular expression “absolutely or in a certain respect and not in its proper sense.” This paper presents an overview of the analysis of this fallacy in the history of dialectics, reconstructing the different explanations provided in the Aristotelian texts, the Latin and medieval dialectical tradition, and the modern logical approaches. The _secundum quid_ emerges as a (...) strategy that is based on the pragmatic dimension of arguments, and in particular the complex passage from an utterance (what is said) to its logical form (a proposition in an argument). The medieval and modern logical theories attempted to explain from different philosophical perspectives how the pragmatically enriched semantic representation can be achieved, justified, and most importantly manipulated. The different analyses of this fallacy bring to light various dimensions of the pragmatics of arguments, and the complex interdependence between context, meaning, and inferences. (shrink)

The aim of this master’s thesis is to analyse and highlight the interaction between science, politics and law. More precisely, our research question concerns the use of scientific arguments in social spheres (notably in politics and law) instead of legal or political arguments. In fact, we want to raise the way in which certain actors invoke scientific arguments to impose "objective" elements of fact in debate and, in this way, refrain from politically and "subjectively" discussing these same elements (or, (...) at least, their social consequences). This Master’s thesis will adopt an interdisciplinary theoretical framework (chapter 1) mobilising philosophy of science, philosophy of law, sociology of law, legal technique and analytical theories. Then, we will apply it to a case study: the European regulation of genetically modified organisms (GMOs) after the European Court of Justice (CJEU) ruling of 25 July 2015 (chapter 2). The first chapter will provide theoretical elements to rethink the interaction between science, politics and law. The first section will propose a 'state of the art’ of the philosophical literature on the relationship between science (as a regime of truth) and politics. This master’s thesis will assess a truth under construction rather than a transcendental truth. Section 2 anticipates authoritarian claims based on science by considering the relationship science can have with power (Foucault). A solid review of philosophical, sociological and legal literature highlights the risks of giving decision-making power to an all-powerful science. Notably, the use of science to justify discriminatory policies is emphasised as these policies could not be challenged because, at the time, it was considered an objective scientific truth. Finally, section 3 offers a critique of the narratives of neutral and objective science, through the approach of science in action. This sociological approach presented all the doubts and subjectivity of science in action. The second chapter will propose a case study to illustrate the theoretical framework. We have chosen GMOs because they constitute a hybrid 'event', marked by scientific controversies, and with major socio-economic implications. The legal framework of GMOs in the European Union will be presented in the first section. In addition, the legal status of new breeding techniques (NBTs) will be examined. The second section will analyse the ruling of the European Court of Justice which made NBTs subject to GMO regulation. Finally, the third section will propose a reflection on the philosophy of law on the modes of existence of scientific, legal and political disciplines. (shrink)

In 1985, German sociologist Niklas Luhmann published a monograph on ecology, which appeared in English translation in 1989 as Ecological Communication. It contained many original insights for ecological thinking and, despite being well-reviewed upon publication, has had a relatively minor impact on Anglophone environmental discourse. This inattention is also present in environmental law, which has recently seen an increase in legal theories that challenge its mainstream. This contribution first investigates why Ecological Communication has received scant attention, pointing to changes (...) in the climatic context in which it first appeared and the reactionary nature of its arguments. Recognising that the work nevertheless contains critical theoretical insights for environmental law scholarship, the second aim of the article is to spotlight what from Ecological Communication remains relevant at the hand of three common claims progressive researchers level against mainstream environmental law: The critique of law's marriage to Cartesian dualism, that law should be better informed by climate science,of and law's anthropocentrism. Finally, environmental lawyers are called upon not to ignore Ecological Communication but to engage with it fruitfully. (shrink)

The aim of the article is to develop precise epistemic rules for good public political arguments, by which political measures in the broad sense are justified. By means of a theory of deliberative democracy, it is substantiated that the justification of a political measure consists in showing argumentatively that this measure most promotes the common good or is morally optimal. It is then discussed which argumentation-theoretical approaches are suitable for providing epistemically sound rules for arguments for such theses (...) and for the associated premises, rules whose compliance implies the truth or acceptability of the thesis. Finally, on the basis of the most suitable approach, namely the epistemological one, such systems of rules for the required types of arguments are presented that fulfil the conditions mentioned. (shrink)

This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule (...) application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart’s paper – Discretion – in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart’s work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart’s work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart’s year as a visiting professor. Hart’s Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history. (shrink)

Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capital punishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his (...) scattered remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capital punishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capital punishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)

Michael Moore’s recent book Mechanical Choices: The Responsibility of the Human Machine is full of rich, insightful discussion of many important issues related to free will and moral responsibility. I will focus on one particular issue raised by Moore: the question of whether we can have control over the past. Moore defends a compatibilist account of moral responsibility on which there are some possible cases in which agents do have such control. But Moore seeks to avoid positing too much control (...) over the past. I will argue that Moore’s attempt is not successful. Furthermore, I will try to show that compatibilists in general face a serious challenge regarding control over the past. In sections 1 and 2 I will explore Moore’s views. In section 3 and 4 I will offer a general argument against compatibilism about moral responsibility and determinism. (shrink)

This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common (...) law are not necessarily quite as customary as sometimes considered, showing that the common law built from precedents fits within a distributed design model of artefacts and that stare decisis has a wider systemic function of upholding certain rule of law principles. It ends with some considerations about the institutional nature of precedents, specifically that judicial decisions are most often both applications and developments of legal norms, but also determinations of legal validity. (shrink)

Legal philosophy dates to the Ancient Greek Philosophers, and it continues to be a vigorously debated subject due to the fact that there does not exist a legal philosophy that is beyond reapproach that encapsulates law’s origins or purpose. This paper will introduce a new legal philosophy, which I have termed instinctualism. -/- Instinctualism is the idea that law originates from human instinct. Human beings are born with certain natural capacities that they learn to utilize as they (...) mature. Examples include speaking, walking, associating, and interacting with others, and practicing faith in a divine being, the state, or some other source of inspiration and hope. Human beings don’t think about the potential illegalities of speaking their minds, moving from one place to another, or engaging in conversation with their friends or associates unless they are indoctrinated to do so. Rather, human beings do these things because they have instinctual desires and the knowledge to do so. Other rights and laws such as freedom of the press are the product of peoples’ instinctual rights. For example, as people learn to speak, they instinctually share information and news about their inner circles or communities. If taken a step further, one begins to discuss an organized press. Knowledge and understanding of laws, such as those limiting certain types of speech, i.e., hate speech, must be taught and learned; it is not instinctual. -/- This paper will introduce a subset of the most influential legal philosophies of different eras in human intellectual development, beginning with those of Ancient Greece. It will proceed to describe the shortcomings of those philosophies before introducing instinctualism as an alternative. After defining instinctualism, I will proceed to discuss how it addresses the shortcomings of other legal philosophies. Next, I will introduce rights guaranteed to the citizens of four prominent countries via relevant sources of primary law for each of those countries. Finally, I will close by reviewing the main arguments in the paper and discussing future research that I will undertake to buttress this paper’s arguments. (shrink)

Defenders of intellectual property rights argue that these rights are justified because creators and inventors deserve compensation for their labour, because their ideas and expressions are their personal property and because the total amount of creative work and innovation increases when inventors and creators have a prospect of generating high income through the exploitation of their monopoly rights. This view is not only widely accepted by the general public, but also enforced through a very effective international legal framework. And (...) it is endorsed by most academic researchers and commentators in this field. In this essay, I will show that the classical arguments for the justification of private intellectual property rights can be contested, and that there are many good reasons to abolish intellectual property rights completely in favour of an intellectual commons where every person is allowed to use every cultural expression and invention in whatever way he wishes. I will first give a short overview of the classical arguments for the justification of intellectual property as they are usually stated. We will then discuss the question of whether the creator or inventor deserves his de jure monopoly, by using John Christman’s categories of income and control rights to analyse property rights. The aim here is to show that it does not make sense to create control rights for abstract objects, as they are not scarce, and that there is no logical connection between the surplus which may be generated through income rights and the labour which has been put into a cultural artefact or an invention, and therefore it is not justified to grant monopoly rights on the basis of Lockean natural rights arguments for self-ownership and the just appropriation of worldly resources. As it is possible to reject Christman’s property rights categories, I will then go on to show on the basis of Richard Dawkins’ postulation of the ‘meme’ and Ludwik Fleck’s theory of the ‘thought collective’ that creative processes should be interpreted as interpersonal or collective processes, and therefore it is not justified to grant intellectual property rights to individuals on the basis of the idea that the individual who has put labour into the creative work or the invention should be the one to whom the contents of the work belong exclusively. As it is still possible to postulate the utilitarian argument that intellectual property rights are just because they increase the amount of creative works and inventions, I will argue in the last chapter that, from a libertarian as well as from an egalitarian point of view, the justification of intellectual monopoly rights on utilitarian grounds cannot be maintained. Therefore it is time to abolish the current global intellectual property law regime in favour of an intellectual commons for the good of all human beings and societies. (shrink)

The interpretation and the indirect reporting of a speaker’s communicative intentions lie at the crossroad between pragmatics, argumentation theory, and forensic linguistics. Since the leading case Masson v. New Yorker Magazine, Inc., in the United States the legal problem of determining the truth of a quotation is essentially equated with the correctness of its indirect reporting, i.e. the representation of the speaker’s intentions. For this reason, indirect reports are treated as interpretations of what the speaker intends to (...) communicate. Theoretical considerations, aimed at establishing the pragmatic meaning of an utterance and differentiating between presumptive and non-presumptive interpretation, are thus interwoven with the practical legal need of distinguishing a correct indirect report from an indirect one or a misquotation. An incorrect report or a misquotation has the dialectical effect of attributing to the misquoted party commitments that he never held, which the latter needs to rebut. This shifting of the burden of persuasion can be increased by using strategically the conflict between the presumptive interpretation of an utterance and the non-presumptive one, i.e. the different types of pragmatic ambiguity. When an interpreter is confronted with an utterance taken out of its dialogical context, his interpretative process is not guided by the actual context or intention, but rather the most frequent or prototypical dialogical setting or the most typical individual purpose that it could have served to achieve. This presumptive reconstruction can be used to provide a prima facie case that the other party needs to reject. The stronger the interpretative presumptions a speaker needs to rebut, the more effective the misquotation strategy. The conflict between the systematic and the presumptive process of interpretation can be represented as an argumentative mechanism of reconstruction of the individual intention, which allows one to assess the reasonableness of the interpretative reasoning. (shrink)

Please contact me at [email protected] if you are interested in reading a particular chapter or being sent the entire manuscript for private use. -/- The thesis offers a comprehensive argument in favor of a regulationist approach to autonomous weapon systems (AWS). AWS, defined as all military robots capable of selecting or engaging targets without direct human involvement, are an emerging and potentially deeply transformative military technology subject to very substantial ethical controversy. AWS have both their enthusiasts and their detractors, prominently (...) advocating for a global preemptive ban on AWS development and use. Rejecting both positions, the author outlines a middle-of-the-road regulationist approach that is neither overly restrictive nor overly permissive. The disqualifying flaws of the rival prohibitionist approach are demonstrated in the process. After defining the core term of autonomy in weapon systems, the practical difficulties involved in applying an arms control regime to AWS are analyzed. The analysis shows that AWS are an extremely regulation-resistant technology. This feature when combined with their assumed high military utility makes a ban framework extremely costly to impose and enforce. As such it is ultimately very likely to fail at the benefit of the most unscrupulous international actors and at a very substantial risk to those abiding with international law. Consequently, to be ethically viable, a prohibitionist framework would need to offer substantial moral benefits impossible to attain through the rival regulationist approach. The remainder of the thesis undertakes to demonstrate that this is not the case. Comparing the considerations of military and strategic necessity to humanitarian concerns most commonly voiced by prohibitionists requires finding a common denominator for all values being referred to. Consequently, the thesis proceeds to show that both kinds of concerns are ultimately reducible to respect for basic human rights of all stakeholders, and so that the prohibitionist and regulationist approach may ultimately be compared in terms of consequences their adoption would generate for basic human rights realization. The author then evaluates both the potential humanitarian benefits, and the potential humanitarian hazards of AWS introduction. The benefits of leaving frontline combat to machines are outlined, with the unique kinds of suffering that would be abolished by such a development being described in detail. The arguments against AWS adoption are then divided into three classes: arguments related to alleged impossibility of compliance with The Laws of Armed Conflict, non-consequentialist and broad consequentialist arguments. This analysis, which comprises the greater part of the entire thesis, shows that the concerns behind compliance arguments are indeed substantial and have to be accommodated via a complex framework of best practices, regulations and localized restrictions on some kinds of AWS or AWS use in particular environments. They do not, however, justify a universal ban on using all the diverse forms of AWS in all environments. Non-consequentialist objections are found either reducible to other classes of arguments or thoroughly unconvincing, sometimes to the point of being actually vacuous. Broad consequentialist concerns are likewise found to be accommodable by regulation, empirically unfounded or causally disconnected from the actions of legitimate actors acquiring AWS, and therefore irrelevant to the moral permissibility of such actions. The author concludes that the proponents of prohibitionism are unable to point to moral benefits substantial enough to justify the costs and risks inherent in the approach. A global ban is, in fact, likely to have a worse humanitarian impact that well-regulated AWS adoption even if the strategic risks are disregarded. On the other hand, the analysis shows that there indeed exists an urgent need to regulate AWS through a variety of technological, procedural and legal solutions. These include, but are not limited to, a temporary moratorium on anti-personnel AWS use, development of internationally verified compliance software and eventual legal requirement of its employment, a temporary moratorium on AWS proliferation to state actors and a ban on their proliferation to non-state agents. (shrink)

The author- following his own research on the subject- argues that Wittgenstein ignores argumentation theory and in general, the problems of rhetoric and argumentation. From this point of view, he frames Stephen Toulmin’s reading of Wittgenstein, arguing that the British philosopher- who was a student of the Austrian- advocates precisely the same thesis. He explains that this happens in a very peculiar (rhetorical) context on Toulmin’s part; a context in which, in essence, Wittgenstein’s philosophy is being rehabilitated.

The problem addressed in this article is the relationship between law and morality. It is asked (1) to what extent law and morality are connected and separated and (2) since when has it been so. To the extent that law and morality are distinct normative orders, it is asked (3) whether they rule exactly the same behaviors or whether each order rules dierent kinds of behaviors. If they rule at least some of the same behaviors, it is asked (4) whether (...) there can be antinomies (contradictions) between them. If there are an- tinomies, it is asked (5) whether the antinomies are only apparent (prima facie) and are therefore mistakes of human reason, or are definite and real. If the antinomies are apparent or real, it is asked (6) whether law or morality prevails (or should prevail) in the case of an antinomy. If one of these prevails, it is asked (7) whether this is always so, or whether law sometimes prevails (and should prevail) over morality and vice versa. In the case of existing coherence or at least solvable antinomies between law and morality, it is asked (8) whether the consequent achieved unity of practical reason is a specifically moral unity and whether it is a matter of cognition, of institutionalization, of individual or collective construction, or of consensus. (shrink)

This paper is aimed at combining the advances in argumentation theory with the models used in the field of education to address the issue of improving students’ argumentative behavior by interacting with an expert. The concept of deeper or more sophisticated argumentative strategy is theoretically defined and used to advance two new coding schemes, based on the advances in the argumentation studies and aimed at capturing the dialectical, or structural, behavior, and the argumentative content of each dialogue (...) unit. These coding schemes are then applied for a qualitative analysis of a study designed to investigate how students’ argumentative behavior can be influenced by the interaction with an expert, who used specific types of attacks to the interlocutors’ positions. The twofold coding shows at which dialogical level expert–peer interactions can directly and more stably affect students’ argumentative behavior, and what effects such more sophisticated strategies can have on the discussion and the analysis of disagreements. In particular, this paper shows how a specific type of deep-level attack, the underminer, can open dialogues of a different level, focused on unveiling and debating background beliefs underlying a specific position. (shrink)

Bayesian models of legal arguments generally aim to produce a single integrated model, combining each of the legal arguments under consideration. This combined approach implicitly assumes that variables and their relationships can be represented without any contradiction or misalignment, and in a way that makes sense with respect to the competing argument narratives. This paper describes a novel approach to compare and ‘average’ Bayesian models of legal arguments that have been built independently and with no attempt to (...) make them consistent in terms of variables, causal assumptions or parameterization. The approach involves assessing whether competing models of legal arguments are explained or predict facts uncovered before or during the trial process. Those models that are more heavily disconfirmed by the facts are given lower weight, as model plausibility measures, in the Bayesian model comparison and averaging framework adopted. In this way a plurality of arguments is allowed yet a single judgement based on all arguments is possible and rational. (shrink)

In this paper we use a series of examples to show how oppositions and dichotomies are fundamental in legal argumentation, and vitally important to be aware of, because of their twofold nature. On the one hand, they are argument structures underlying various kinds of rational argumentation commonly used in law as a means of getting to the truth in a conflict of opinion under critical discussion by two opposing sides before a tryer of fact. On the other (...) hand, they are argument structures underling moves made in strategic advocacy by both sides that function as platforms for different kinds of questionable argumentation tactics and moves that are in some instances tricky and deceptive. (shrink)

In response to critiques of rights as moralistic and depoliticising, a literature on the political nature and contestability of rights has emerged. In this view, rights are not merely formal, liberal and moralistic imperatives, but can also be invoked by the excluded in a struggle against domination. This article examines the limits to this practice of rights-claiming and its implication in forms of domination. It does this by returning to Marx’s blueprint for the critique of subjective rights. This engagement with (...) Marx will, however, take a particular form. I will read Marx first through the eyes of Claude Lefort and thereafter against Lefort. The latter’s critique of Marx still constitutes the strongest case against the dismissal of subjective rights. Introducing a reading of Lefort into the argument allows us to discover what is dead and what is well alive in the Marxist theory of rights. What is dead, I will argue, is Marx’s early conception of subjective rights as ideology and illusion. However, the more mature Marx developed a theory and critique of the legal form that is able to explain why the politics of rights—despite its undeniable advances—has not been able to overcome certain forms of domination. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

(Early) Modern social contract theories reject the idea that legal and political institutions are grounded in an alleged natural ordering or hierarchy of human beings, and instead argue that only government by a public (and not private) authority can fulfil the idea of justice as freedom and equality for all. To be authoritative and not just powerful, governing institutions must be shared as ours in this irreducible sense. I first outline how Kant’s ideal account of rightful freedom brilliantly transforms (...) this tradition as found in the works of Hobbes, Locke, and Rousseau, before proposing a way to see Kant’s two-layered non-ideal theory—his accounts of human nature (“moral anthropology”) and historical societies (“the principle of politics”)—as complementing his ideal theory of rightful freedom. This enables us to envision a conception not only of rightful external freedom but of rightful human freedom in particular societies—with their histories—on planet Earth. With these arguments at hand, we can also better appreciate the importance of realizing that the four possible political conditions for Kant—anarchy, barbarism, despotism, and republic—are ideas of reason, which means that they are never perfectly realized. Hence, historical societies we are not either in the state of nature or in civil society. In addition, in historical societies founded on principles of freedom, there are pockets of injustice or pockets that are devoid of justice that can only be captured by means of one of the three political ideas that are not constitutive of the republican legal-political framework. Kant’s four ideas therefore give us more tools with which to capture the nature of different political forces and challenges facing us in our historical societies. (shrink)

The study is focused on analysing formalism which is a strategy of applying laws by stressing the formal features of the law, even if the consequences of the strategy like that are difficult to accept in light of legal principles and the general requirement of equity. Contrary to the common view presented in the legal literature, the study sets out arguments that the formalism is neither justified in the tradition of legal positivism, neither in the idea of (...) the rule of law. In particular it is not true that formalism secures stability and predictability of laws application. On the other hand, a non-formalistic approach to applying laws, consisting in a simultaneous application of strict rules and general principles and in acknowledging the purpose and the function of the law as important factors, allows for realising the values that are traditionally linked with legal positivism. That non-formalistic approach to applying laws, called in the study 'interpretative holism', was supported by a wide use of contemporary philosophy of language, in particular the Kripke-Putnam semantics and the findings of the contemporary philosophy of law and legal theory. -/- Praca jest poświęcona analizie zjawiska formalizmu, które jest strategią stosowania prawa, podlegająca na podkreśleniu wagi formalnych cech prawa, nawet jeśli strategia taka prowadzi do rezultatów trudnych do zaakceptowania z punktu widzenia zasad prawa albo ogólnych wymogów słuszności. Przeciwnie do dotychczasowych stanowisk reprezentowanych w literaturze, w pracy przedstawione są argumenty, że formalistyczne podejście do stosowania prawa nie ma uzasadnienia, ani w koncepcji pozytywizmu prawniczego, ani w koncepcji rządów prawa. Z drugiej strony nieformalistyczne podejście do stosowania prawa, które polega głównie na współstosowaniu reguł i zasad oraz na uwzględnianiu celu i funkcji prawa, pozwala na realizację wartości tradycyjnie przypisywanych koncepcji pozytywizmu prawniczego. Ta nieformalistyczna strategia stosowania prawa, nazywana w pracy holizmem interpretacyjnym, została w pracy uzasadniona poprzez szerokie wykorzystanie współczesnej filozofii języka, w szczególności tzw. semantyki Kripkego-Putnama oraz współczesnego dorobku polskiej i zagranicznej teorii i filozofii prawa.". (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory (...) the author advocates can extend to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

One of the many arguments against capital punishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no alternative penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution is irrevocable. It follows that capital punishment should be abolished. This paper argues for the third premise. One might think that the truth of this premise (...) is self-evident. But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that it is false: the death penalty is not irrevocable. While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Strengthened in this way, the argument deserves careful consideration. I begin with a quick sketch of Davis’ argument, then show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capital punishment, defending their theory of harm against standard objections in the literature. Having established the coherency of the robust argument, I conclude that it nevertheless fails to make the case against irrevocability. This is because it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (shrink)

Resumo A problemática sobre a “verdade” não tem obtido a devida atenção no meio jurídico. As considerações a respeito do que seja “verdade”, por certo, têm nítido viés filosófico, existindo distintas concepções acerca da “verdade”, embora muitas não são capazes de servir ao direito processual civil. Habermas concebe a “verdade” sobre um fato como um conceito dialético, construída a partir das argumentações desenvolvidas pelos sujeitos cognoscentes, ou seja, buscada na cooperação direcionada para o entendimento mútuo racional. Identificam-se pontos de contato (...) existentes entre a teoria habermasiana e os enunciados até agora elaborados no projeto do novo Código de Processo Civil brasileiro. A “verdade” no moderno processo civil deve ser buscada em um procedimento baseado na probabilidade das provas e das teses apresentadas, na intensa argumentação dialética e em colaboração entre os sujeitos processuais, e no respeito às normas e aos princípios válidos para o caso em julgamento. Palavras-chave : argumentação, cooperação, Habermas, novo Código de Processo Civil brasileiro, procedimento, verdadeThe problem about “truth” has not gained enough attention in the legal field. All the considerations about “truth” have a clearly philosophical points of view, and distinct conceptions concerning it, although many are not capable of serving in the civil procedure. Jürgen Habermas conceives the “truth” as a dialectical concept, constructed from the arguments developed by cognizant agents, i.e., those seeking cooperation aimed at rational mutual understanding. The article identifies points of contact between habermasian theory and legal rules developed up to now in the project of the new Brazilian Civil Code of Procedure. The “truth” in the modern civil process must be sought in a procedure based on the probability of the evidence and theses in intense dialectical argumentation and collaboration between all parties involved with the respect for the rules and principles considered valid for the case at hand. Keywords : argumentation, cooperation, Habermas, new Brazilian Civil Procedure Code, procedure, truth. (shrink)

In free speech theory ‘speech’ has to be defined as a special term of art. I argue that much free speech discourse comes with a tacit commitment to a ‘Subtractive Approach’ to defining speech. As an initial default, all communicative acts are assumed to qualify as speech, before exceptions are made to ‘subtract’ those acts that don’t warrant the special legal protections owed to ‘speech’. I examine how different versions of the Subtractive Approach operate, and criticise them in (...) terms of their ability to yield a substantive definition of speech which covers all and only those forms of communicative action that – so our arguments for free speech indicate – really do merit special legal protection. In exploring alternative definitional approaches, I argue that what ultimately compromises definitional adequacy in this arena is a theoretical commitment to the significance of a single unified class of privileged communicative acts. I then propose an approach to free speech theory that eschews this theoretical commitment. (shrink)