Theory Of Legal Argumentation Research Articles

Teoria da Argumentação para a concepção do Direito como integridade de Dworkin: Uma impossibilidade?

The article aims to verify the possibility of an argumentation theory within the framework of Ronald Dworkin’s theory of Law as Integrity. The research is based on a literature re-view based on the analysis of the epistemological contradiction between the current theories of legal argumentation and the theory of Law as Integrity, based on Hans-Georg Gadamer and Ronald Dworkin. We conclude that, despite this contradiction, a theory of argu-mentation is possible within Dworkin’s theory, as long as the logic of developing a previous and methodical path to reach a metaphysical truth is overcome. Without illusions or relativism, we propose the acceptance of Law as Integrity, founded on hermeneutic bases, as an alternative for the strengthening of an argumentative process within the scope of a Democratic State of Law.

The Par Condicio Creditorum in Colombian bankruptcy jurisprudence. Principle or rulé Analysis of two orders of the Superintendence of Companies

Through the present work, it will be studied if in Colombian bankruptcy jurisprudence the par condicio creditorum has received the treatment of principle or rather of rule. Thus, we will begin by reviewing the concepts of «principle» and «rule» in Robert Alexy’s theory of legal argumentation. Then, after having studied the notion, purpose and historical evolution of the Bankruptcy Law, an exposition will be made of the different solutions that historically have been offered to the problem that arises when more than one creditor has more than one creditor on the patrimony of the same debtor, so as to approach the notion of par condicio creditorum, and be able to determine whether it, in the recent jurisprudence of the Superintendency of Companies, has received the treatment of principle or rule and the consequences of such a conclusion.

Erística na decisão jurídica

The paper intends to define what should be understood by theory of legal argumentation, focusing the role of eristics and its relationship with the concepts of persuasion – to which legal argumentation is traditionally reduced – and decision. The methodology consists of an etymological archeology or conceptual phenomenology of the main concepts, starting from ancient Greece, where rhetoric was born. The text also suggests that complex contemporary society pulverizes its decision centers and expands the eristic character of the legal discourse. And it seeks the anthropological foundations of the eristic decision in the impossibility to distinguish lying in human language and consequently in communication.

ANCIENT ORIGINS OF THE METHODOLOGY OF MODERN EVIDENCE LAW

The course towards Ukraine's European integration provides for the harmonisation of national and European law, starting with the cultural and traditional foundations of the latter, laid down in the era of antiquity. In addition, according to the analysis of current issues in the field of modern evidence law, the main sources of methodological contradictions in approaches to its solution go back to their historical roots in this particular era. Accordingly, it seems appropriate to study the ancient origins of both the methodology of legal argumentation itself and the modern technique of its effective application. Moreover, these issues are still insufficiently investigated. Therefore, the purpose of the study is to identify those logical foundations of evidentiary reasoning that are the property of ancient thought and can be effectively used in the development of modern methods of legal evidence. Hermeneutical and comparative analysis methods were used to critically evaluate classical and modern methodological concepts in the field of evidence law, and to identify fundamental differences in the interpretation of goals, means, and methodological approaches to the construction of evidentiary procedures. When searching for ways to resolve contradictions between alternative methodological paradigms, each of which reveals both its own constructive points and some functional limitations, the method of dialectical synthesis is applied, which provides for rational integration of oppositely oriented approaches based on the principles of their relevant involvement and complementarity. Methods of deductive and logical analysis, as well as inductive generalisation, probabilistic and statistical estimates, and analogy were used to substantiate the results and formulate the conclusions of the study. Scientific originality. It is proved that the appeal to the logical and methodological foundations of rational thinking, formulated and systematised by ancient Greek scholars and technically used in the system of Roman law, opens up wide opportunities in terms of solving a number of topical problems of modern theory and practice of legal evidence. To solve the actual problems of the modern methodology of evidence law, it is advisable to retrospectively analyse its previous historical development, since this makes possible, first, to find out the essential causes of such problems from their very origins. Second, the proposed approach, being aimed at studying the logical and methodological foundations of the theory of legal argumentation, provides for the search for solutions to these problems at a fundamental level. In particular, turning to ancient sources of proof methodology will help solve many debatable issues of its modern development, among which the dilemma of the deductivist or probabilistic and statistical paradigm, the problem of criteria for the sufficiency of evidence, etc., are distinguished. The use of argumentative strategies based on basic logical criteria of rationality and evidence will help increase the degree of objectivity in the practice of making legal decisions, being an effective means of countering subjectivism in the course of their development

On the Preconditions of Rationality

In the field of legal argumentation theory, rational justification is probably the most important part, and yet it is not fully understood by scholars even today. In several publication the author has presented already presented her theory on this, but has not discussed all the preconditions. In the present contribution this will be handed in – at least in a short version. Thus, aspects of epistemology and linguistic theory are discussed, as well as what the author calls the ‘LBA theorem’ (from ‘The Least Bad Alternative’), which relies on the law of noncontradiction and describes a criterion for when exactly an assertion is rationally justified.

НСТРУМЕНТИ ПРАВОВОГО АРГУМЕНТУВАННЯ Й ПРАВОВОЇ АРГУМЕНТАЦІЇ: ЗАГАЛЬНОТЕОРЕТИЧНА ХАРАКТЕРИСТИКА

The article is dedicated to the general theoretic study of the instruments of legal arguing and legal argumentation. The author determines that the substantive instruments of legal arguing are the arguments, while the argument schemes and argumentation structures serve for the purpose of reconstruction and evaluation of legal argumentation. The lack of unified understanding of what is argument in foreign and national legal studies is stated, as well as the impossibility of exhaustive categorization of the arguments in law. The argument is the basic tool of legal arguing. According to C. Tindale, in European tradition the concept of argument encompasses both premises of the argument (argumentation) and its conclusion (standpoint, claim). The concept of argument is rather vague. The author highlights the correlation of the argument and explanation as well as the argument and proof. The reasons for the argument are rooted in the sources of law, that makes argumentation legal. In the argumentation theory, the notions of «argument scheme» and «argumentation structure» are used in addition to the concept of argument. Argument scheme is the internal argument structure. An argument scheme characterizes the type of justification or refutation provided for the standpoint in a single argument by the explicit premise for the standpoint. Argument structure is considered as an external structure of argumentation. It is defined as the way the reasons advanced hang together and jointly support the defended standpoint. There are singular and multiple argumentation structures. The singular argumentation consists of one argument for or against a standpoint. In case of multiple argumentation, few arguments are put forward for or against the same standpoint to predict and respond counterarguments of an opposite party of legal arguing. The procedural aspect of the instruments of legal arguing are the rules of legal arguing. The procedural means of legal arguing are its procedural rules which depend on an area of legal activity where the argumentation is provided as well as on the peculiarities of the argumentative situation. On the one hand, there are procedural rules of legal arguing in any legal system, for instance, legal rules governing the procedures of debates in a parliament, court system, hearing in the Constitutional Court. On the other hand, there are doctrinal rules of critical discussion, of general and legal discourses, elaborated within the argumentation theory and the legal argumentation theory.

DA FUNDAMENTAÇÃO DAS DECISÕES E TEORIA DA ARGUMENTAÇÃO JURÍDICA À DINAMIZAÇÃO DO ÔNUS DA PROVA: O CPC/2015 E A BUSCA DE UM PROCESSO CONSTITUCIONALIZADO

The article aims to analyze the duty and right to justify judicial decisions, in which the theory of legal argumentation contributes in this point, as well as the system of burden of proof’s distribution brought by CPC/2015, as ways to ensure the constitutional guarantee an adeuqate and effective judicial protection. Through the deductive method, it was found that the judge must legitimize his arguments, granting material isonomy to the litigants in what concerns to the evidential production, guiding the process on procedural cooperation. The research contributes in Constitutional Law, Human and Fundamental Rights, General Process Theory and Civil Procedural Law.

좁은 수로의 항법 적용에 관한 한국·영국 법원 판결의 논증구조 비교 평석 - The “Alexandria 1” and “Ever Smart” Case와 “한림페리9호·민호호 충돌사건”를 중심으로 -

Since the description of the Collision Regulations for narrow channel does not cover all specific situations, substantial applications may be contested in many respects. For example, in situations where ships sailing on narrow channels intersect with vessels outside the channel, questions could arise as to whether rule of narrow channels will be applied or if rule of crossing will be applied. The judgements of the Queen`s bench and Court of appeal on the Alexandria 1 v. Ever Smart case in 2018 was of great significance in that it has come to the conclusion that a universal solution to this problem, the rule of narrow channel should be applied if even one vessel is on a narrow channel. On the other hand, the Daejeon High Court's judgment on the "Hallim Ferry 9 and Minho Collision" in 2017 is not much different from the above judgements on appearance, but the structure of the argument is different and does not seem to have made a ruling that is a guideline in the future. In this paper, I will examine in terms of legal argumentation theory how the process of justifying the navigation application of narrow channels in the crossiong situation between ships in the vicinity of narrow channels was different. Although both courts reached similar conclusions, the lack of justification is pointed out in that the Korean courts failed to provide a reasonable basis for argument. The purpose of these discussions is not to reveal which navigation rules are correct in special circumstances, but to suggest a desirable direction for providing evidence for the judgment.

Economic consequences for lawyers

Abstract This article moves from the premise that a bilateral relationship between law and economics requires the contribution of the theory of legal argumentation. The article shows that, to be legally relevant, economic consequences have to be incorporated into interpretive arguments. In this regard, the jurisprudential preface strategy proposed by Craswell goes in the right direction, but begs the question of why the legally relevant consequences have to be assessed in terms of total welfare maximization instead of, in the EU context at least, consumer welfare maximization. After having identified five points of divergence between total and consumer welfare approaches, the article draws from legal inferentialism to propose an analytical tool – the explanatory scorekeeping model – for assessing the explanatory power of these two approaches. The model is then applied to the reasoning in United Brands Company v. Commission.

'An Expansionist Model of Legal Reasoning'

In this paper, I engage with J.J. Moreso’s account of legal reasoning. First, I reconstruct Moreso’s conception of legal deliberation, which I regard as taking a distinctive stance within the contemporary debate in jurisprudence, since it innovatively expands on some of the most sophisticated models of practical reasoning and legal reasoning that have been defended in the literature. Building on this interpretation of Moreso’s theory of legal reasoning, I will go on presenting some reflections on the idea of practical rationality that undergirds the practice of reasoning in law, when this practice is conceived in Moreso’s terms. In this context, I account for two central features of the conception of practical rationality that underlines, and best fits with, Moreso’s explanation of legal reasoning. Since Moreso has yet to systematically explore the idea of practical rationality associated with his theory of legal argument, the claims I advance in this part of the paper are merely tentative. Whilst I try to make a rigorous attempt to develop Moreso’s jurisprudence from a theoretical perspective that is sympathetic to his overall project, nothing in the discussion I carry out here should be taken to suggest that Moreso is conceptually committed to the views about practical rationality I associate his theory of legal reasoning with.

Arsyad Al-Banjari’s Dialectical Model for Integrating Indonesian Traditional Uses into Islamic Law

Muhammad Arsyad Al-Banjari who lived from 1710 to 1812 in Borneo, Indonesia, applied a model of integrating uses of the Banjarese tradition into Islamic Jurisprudence based on a dialectical constitution of qiyās, the legal argumentation theory for parallel reasoning and analogy, he learned from the Shāfi‘ī-school of jurisprudence (uṣūl al-fiqh). Our paper focuses in the model of integration proposed and practiced by Al-Banjari, a rational debate grounded on a dynamic view on legal systems. We will illustrate the method with the help of two different kinds of qiyās deployed by Al-Banjari in order to argue for the rejection of some traditional Banjarese offering-rituals for avoiding disease or calamities (manyanggar and mambuang pasilih), and for the acceptance of the use of consuming the traditional drink called lahang made of the juice of sugar-palm. As our dialogical reconstruction shows, the development of the debates, particularly the first one, is quite sophisticated, with a Banjarese opponent that does not surrender easily to the rejection of his use of those rituals.

El concepto neoconstitucionalista-pragmatista del Derecho

Este artigo pretende examinar duas acepções existentes acerca do conceito de Direito, sob a ótica da teoria pragmatista: a da doutrina tradicional, essencialista, bem como a da tese convencionalista. Explica-se que o pragmatismo aplicado no Direito possui diferentes sentidos, dentre eles o de uma teoria sobre o conceito do Direito. Defende-se que o chamado pragmatismo jurídico conceitual corresponde à busca de um conceito do Direito que nega a existência de uma verdade metafísica e que se desenvolve como uma doutrina relacionada com as convenções. Após analisar as características do pragmatismo conceitual, sustenta-se que o neoconstitucionalismo, especialmente aquele de alcance particular, assume delineamentos nitidamente pragmatistas, na medida em que procura resolver questões relacionadas com a argumentação e com o funcionamento dos sistemas jurídicos, em vez de procurar resolver indagações metafísicas. Conclui-se que o neoconstitucionalismo, ao tornar a teoria da argumentação jurídica o marco fundamental da teoria do Direito, representa uma forma de rechaçar o essencialismo jurídico.

Constitutionalism and transcendental arguments

In his A Theory of Legal Argumentation, Robert Alexy lists four modes of justification for his rules of practical discourse. Of these, the only one that to him seems to have a true foundationalist capability is Apel’s transcendental-pragmatic mode of justification. But there is another strategy, which Alexy calls 'definitional', based on the concept of language game, that seems to have been employed by Ronald Dworkin, in his 'Objectivity and truth. You’d better believe it', in order to reject moral scepticism. In this paper I will argue that these two modes of justification can be traced back, from a logical and genealogical perspective, to one form of argument, the transcendental argument. But I will also argue that there is a peculiar circularity in the way this kind of argument develops, a circularity possibly ascribable to certain idealising presuppositions.

La tópica como método en el Derecho público

La tópica, acuñada por Aristóteles en el marco del Organon, tuvo una importante influencia en la elaboración del Derecho en los siglos posteriores, especialmente en la Edad Media. La recopilación de catálogos de tópicos condujo a la creación de libros de máximas jurídicas, que constituyeron el estadio inicial de sistematización del Derecho. La tópica fue, así, una pieza fundamental en la configuración de los sistemas jurídicos contemporáneos. Sin embargo, desde 1700 y, muy especialmente, en el Siglo XIX, las corrientes sistematizadoras del Derecho continental desacreditaron el método tópico, dejándolo de lado. Tras la Segunda Guerra Mundial, Theodor Viehweg reivindicó la importancia de la tópica en la metodología jurídica, visibilizando las disfunciones derivados de una aproximación puramente lógico-formal al Derecho. Esta construcción evolucionó hacia las teorías de la argumentación jurídica que han alcanzado un alto grado de desarrollo en la actualidad. Sin embargo, el valor de la tópica en la metodología contemporánea del Derecho y, en especial, del Derecho público, no se ha analizado en profundidad. Este estudio realiza una primera aproximación en este sentido, y propone el reconocimiento de un espacio para la tópica compatible con otros enfoques metodológicos. Para ello se analiza el valor metodológico de la tópica y se parte de la distinción entre tópicos formales y tópicos materiales.

The Concept of Constitutional Identity as a Legal Argument in Constitutional Judicial Practice

Constitutional identity has recently emerged as a relevant concept in the theory of constitutional law. It first appeared in constitutional decision reasoning in the second half of the 20th century, particularly in cases concerning the process of European integration. Constitutional courts all over Europe have started to use this notion as a legal counterargument against the growing influence of the European Court of Justice on the national legal systems of member states. At the theoretical level, the use of this new concept caused a lot of criticism by law scholars, due, in their opinion, to its non-legal unscientific character. At the same time, there are also many supporters of this concept, mainly the representatives of the civilizational and sociocultural approaches to law. One way or another, it is fair to say that this concept has captured the attention of constitutional lawyers who, nevertheless, have not come yet to a common understanding of this notion. Some of them suggest defining constitutional identity as a method of legal argumentation, but there are still no comprehensive studies of this concept using achievements of the theory of legal argumentation. This article represents an attempt to research the notion of “constitutional identity” through the prism of the latter.

What is the Theory Legal Argumentation For?

The paper aims to present the legal theories of legal argumentation constructed in the last century, organised into two groups: the precursors (Viehweg, Perelman and Toulmin) and the authors of the standard theory (MacCormick and Alexy). Then, some criticisms about all these conceptions are presented. And finally, an outline of a theory of legal argumentation is made, capable of overcoming some of the previous criticisms. The fundamental idea for this is to build a very abstract concept of argumentation that could then allow various interpretations or conceptions of legal argumentation. From here, one would be in a position to find an answer to the three main argumentative questions raised by legal practice: how to analyse an argument, how to evaluate it, how to argue.

Economic Consequences for Lawyers: Beyond the Jurisprudential Preface

This article moves from the premise that a bilateral relationship between law and economics requires the contribution of the theory of legal argumentation. The article shows that, to be legally relevant, economic consequences have to be incorporated into interpretive arguments. In this regard, the jurisprudential preface strategy proposed by Craswell goes in the right direction, but begs the question of why the legally relevant consequences have to be assessed in terms of total welfare maximization instead of, in the EU context at least, consumer welfare maximization. After having identified five points of divergence between total and consumer welfare approaches, the article draws from legal inferentialism to propose an analytical tool – the explanatory scorekeeping model – for assessing the explanatory power of these two approaches. The model is then applied to the reasoning in United Brands Company v. Commission.

The Rehabilitation of Practical Reasoning and the Persistence of Deductivism: An Impossible Challenge?

Exploring certain specific dimensions of practical reasoning in law—namely the possibility of recognizing an autonomous (structurally dialectic and intentionally dialogic) subject/subject rationality—this paper concentrates on one of the main challenges that the theory of legal argumentation, or a certain standard trend within this theory (emerging from Alexy, MacCormick, Aarnio and Peczenik), considers when invoking Wroblewski’s legacy (the analytical reconstitution of argumentation as a process of justification, with different horizontal or vertical levels). In effect, this challenge means on the one hand responding to the question of “how decisions can be justified when no deductive argument is sufficient to justify them” and, on the other hand, defending the thesis that syllogism “provides” the “framework” in which all “the other arguments make sense as legal arguments” (MacCormick). Is this a plausible challenge or does it encourage possible convergence? In order to answer this question, I will allude to some relevant “anti- deductive critiques” (from the founding fathers Viehweg, Perelman and Toulmin) and a very specific jurisprudentialist understanding of legal rationality (which explores the judicium/legal system connection and a dialectics between problem and system), and I will refer to the stimulus of a certain alternative logical perspective (“legal logic beyond deduction”) that can be identified in Sartor’s “doxification of practical reasoning”. In addition, one of the main concerns of our common thematic core must not be forgotten: the confrontation between the democratic (discursive) legitimation of jurisdictio as potestas and the apparently non deliberative and non-democratic possibilities of practical–prudential rationality.

La argumentación jurídica como método científico de verificación

La presente investigación busca utilizar a la Teoría de la Argumentación Jurídica, como método de verificación de la ciencia jurídica mediante las variables: Verdad, Lenguaje, Teoría, Tiempo y Consciencia.

Positivismo Jurídico y razón práctica. Reflexiones sobre un texto de Alejandro Sahuí Maldonado

En “Positivismo y concepción argumentativa del Derecho. Un alegato a favor de su compatibilidad”, Alejandro Sahuí Maldonado aborda muchas de las cuestiones que han centrado el debate iusfilosófico contemporáneo desde la irrupción de las teorías de la argumentación jurídica; a saber: el concepto de justificación, la conexión entre derecho y moral, el principio de unidad de razonamiento práctico o las relación entre metaética y teoría del derecho. Este trabajo analiza críticamente las tesis mantenidas por Sahuí, especialmente, su intento de fundamentar la normatividad del derecho conjugando la tesis de la separación entre derecho y moral y la tesis de la relevancia práctica del derecho.