La misma serie editorial en la que aparecieron obras de Robert Walter, Hasso Höfman, Arthur Kaufmann o Robert Alexy ofrece ahora a los lectores interesados por el mundo de la argumentación jurídica una esmerada traducción de la obra de Eveline T. Feteris, Fundamentals of Legal Argumentation, editada por Kluwer Academic en 1999. En los doce capítulos que componen esta obra, Feteris consigue mostrar de manera a un tiempo sustantiva y concisa los problemas teóricos más importantes de las distintas (...) tradiciones que componen el ámbito de la argumentación jurídica. Sobre la base de esta exposición de naturaleza histórica, la profesora holandesa examina con detalle las teorías de la justificación de las decisiones judiciales sin perder de vista el hilo realmente vertebrador de esta investigación, a saber, la descripción de los componentes teóricos implícitos en las distintas concepciones sobre la argumentación jurídica. (shrink)

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

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

In this contribution the prototypical argumentative patterns are discussed in which pragmatic argumentation is used in the context of legal justification in hard cases. First, the function and implementation of pragmatic argumentation in prototypical argumentative patterns in legal justification are addressed. The dialectical function of the different parts of the complex argumentation are explained by characterizing them as argumentative moves that are put forward in reaction to certain forms of critique. Then, on the basis of an exemplary case, the famous (...) Holy Trinity case, the way in which the U.S. Supreme Court uses pragmatic argumentation in this case is discussed by showing how the court instantiates general prototypical argumentative patterns in light of the institutional preconditions of the justification in the context of the specific case. (shrink)

In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from legal practice, (...) it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand. (shrink)

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

In this article the author develops a framework for a pragma-dialectical reconstruction of teleological argumentation in a legal context. Ideas taken from legal theory are integrated in a pragma-dialectical model for analyzing and evaluating argumentation, thus providing a more systematic and elaborate framework for assessing the quality of teleological arguments in a legal context. Teleological argumentation in a legal context is approached as a specific form of pragmatic argumentation. The legal criteria that are relevant for the evaluation of teleological argumentation (...) are discussed and translated in terms of critical questions that are relevant for the evaluation of the various forms of teleological argumentation. (shrink)

This essay discusses the developments and trends of research in legalargumentation of the last 25 years. The essay starts with a survey of thevarious approaches which can be distinguished: the logical approach, therhetorical approach, and the dialogical approach. Then it identifies varioustopics in the research, which constitute the various components of aresearch programme of legal argumentation: the philosophical component, thetheoretical component, the reconstruction component, the empiricalcomponent, and the practical component. It concludes with a discussion ofthe main trends in the research (...) of the last 25 years. (shrink)

In legal theory, it is widely claimed that decisions in hard cases are based on weighing and balancing. However no reconstructions are given of the deep structure of the complex argumentation underlying the justification of these decisions. The author develops a model for the analysis of weighing and balancing of arguments in the justification of judicial decisions that are based on teleological-evaluative considerations. The justification is reconstructed as a complex argumentation that consists of different levels of argumentation and it is (...) explained how these levels of argumentation relate to the burden of proof of a judge who gives a decision that is based on a weighing and balancing in which teleological-evaluative considerations are invoked. (shrink)

In this paper, the author describes a dialogical approach tolegal argumentation from the perspective of argumentationtheory. In a pragma-dialectical approach of legalargumentation, the argumentation is considered to be part of acritical discussion aimed at the rational resolution of thedispute. The author describes how a pragma-dialecticalanalysis and evaluation of legal argumentation can be carriedout.

In this contribution the author develops an argumentation model for the reconstruction of weighing and balancing on the basis of teleological-evaluative considerations. The model is intended as a heuristic and critical tool for the rational reconstruction of the justification of judicial decisions. From the perspective of a rational discussion, it makes explicit the choices underlying the weighing and balancing on the basis of goals and values so that they can be made explicit and submitted to rational critique.

This paper argues that Habermas's conception of the rationality of moral and legal discussions has import for argumentation theorists interested in the rationality of public deliberations in politics and law. I begin with a survey of Haber mas's discourse theory and his criteria of rationality for moral and legal discourse. I then explain why, in his view, the forms of rational discourse in morality and law complement each other. My aim is to show how Habermas's account of this complementary relationship (...) opens up fruitful perspectives for argumentation theory. Specifically, his thought can stimulate research regarding, on the one hand, the ways in which legal procedures provide for presumptively rational resolutions of moral disputes and, on the other hand, the applicability of ideal argumentation-theoretic models to the legal field. I conclude with a proposal for integrating Habermas's ideas in a research program for legal argumentation. (shrink)

In this contribution I characterize the role of the judge in the context of the argumentative activity of legal proceeding. I describe the role of the judge from a pragma-dialectical perspective and explain in which way this role promotes a rational resolution of the dispute. I specify how a critical discussion in accordance with the ideal model is implemented in legal procedure to accomplish the institutional point, a resolution of the dispute in accordance with the Rule of Law.

I argue here that in the end Bourdieu's theory of practice fails to overcome the problem on which it expressly centers, namely, subject-object dualism. The failure is registered in his avowed materialism, which, though significantly "generalized," remains what it says: a materialism. In order to substantiate my criticism, I examine for their ontological presuppositions three areas of his theoretical framework pertaining to the questions of (1) human agency (as seen through the conceptual glass of the habitus), (2) otherness, and (3) (...) the gift. By scrutinizing Bourdieu's powerful and progressive social theory, with an eye to finding fault, I hope to show the need to take a certain theoretical action, one that is patently out of keeping with the usual self-presentation and self-understanding of social science. The action I have in mind is this: because the problem of subject-object dualism is in the first place a matter of ontology, in order successfully to address it there must take place a direct shift of ontological starting point, from the received starting point in Western thought to one that projects reality in terms of ambiguity that is basic. With this shift the dualism of subject and object dissolves by definition, leaving a social reality that, for reasons of its basic ambiguity, is best approached as a question of ethics before power. (shrink)

This article presents an explication of the references to the history of the calculus in the first few pages of Chapter 4 of Deleuze's _Difference and Repetition_. In those pages, Deleuze uses anachronistic readings of the calculus to explain his theory of ontogenesis, beginning with the differential, dx, that is strictly nothing by itself but that establishes singular points in relation to other differentials. He builds from the differential to power series, showing a corresponding process of determination in the ontogenesis (...) as the mathematics moves from derivative to the so-called original function. (shrink)

Neuroscientist Benjamin Libet has conducted a series of experiments that reveal the existence of certain neural processes in the brain of human subjects, initiating an action prior to the human subject’s intention to act, thus seemingly threatening our idea of free will. The purpose of this paper is to show how these processes do not disprove any idea of free will one might have as one would, if accepting such a thesis, be committing two distinct mereological fallacies and ultimately, would (...) treat the human subject as inhabiting some of its parts as opposed to being the sum of its parts. (shrink)

This article explores the ways in which predictive information technologies are used in the field of personalized medicine and the relations between this use and how patients and disease are perceived. This is examined in a qualitative case study of a personalized cancer clinical trial, where oncologists made clinical decisions for each patient based on drug matchings and efficacy predictions produced by bioinformatic technologies and algorithms. I focus on personalized practice itself, as a postgenomic phenomenon, rather than on epistemic, ethical (...) and institutional critiques. Personalized medicine aims to process molecular, clinical, environmental and social data into individually tailored decisions. In this case, however, the engagement of clinicians with data and digital artefacts that processed multiple information sources resulted in treatment choices that were paradoxically both immutable and uncertain. In contrast to the situatedness of the body in postgenomics, this practice subverted the personalized medical approach while decontextualizing both cancer and patients. (shrink)

Nondualism, ontology, and anthropology -- Anthropology and the synthetic a priori: Wittgenstein and Merleau-Ponty -- Blind faith and the binding of Isaac: the Akedah -- Excursus I: sacrifice as human existence -- Counter-sacrifice and instrumental reason: the Holocaust -- Bourdieu's anti-dualism and "generalized materialism" -- Habermas's anti-dualism and "communicative rationality" -- Technological efficacy, mythic rationality, and non-contradiction -- Epistemic efficacy, mythic rationality, and non-contradiction -- Contradiction and choice among the Dinka and in Genesis -- Contradiction in Azande oracular practice and (...) in psychotherapeutic interaction -- Epistemic and ethical gain -- Transcending dualism and amplifying choice -- Excursus II: what good, ethics? -- Anthropology and the generative primacy of moral order -- Conclusion: Emancipatory selfhood and value-rationality. (shrink)

This article asks what is creative about the act of programming. Observing that in most programming contexts, each line of code is written with a specific end in mind, it would seem as though there is little room for creativity, as the ends constrain the choices of means. However, there are many features of coding languages that open up creative possibilities. Object-oriented coding environments purport to make programming more about structures that humans might work with and less about features of (...) computers, and other innovative coding techniques, such as RTTI design, suggest that there may be no limit to the creative possibilities of code. (shrink)

Abraham Joshua Heschel and Martin Buber were giant thinkers of the twentieth century who made significant contributions to the understanding of religious consciousness and of Judaism. They wrote on various subjects, such as the Bible, the commandments, Hasidism, Zionism and Christianity, and had much in common, though they also differed on substantial points. Of special note is the intense and fruitful interaction that took place between them. Until now, scholars have not undertaken a comparative analysis of Buber and Heschel as (...) eminent contemporary interpreters of the Jewish tradition. In this volume, Meir and Even-Chen have taken upon themselves the challenge of monitoring their agreements and disputes. (shrink)

This article explores some aspects of what has been termed ‘new contractualism’ in social policy, using the Norwegian policy on poverty and social exclusion as an empirical example. An important purpose is to identify how the move to new contractualism implies new modes of controlling behaviour and to explore the ethical legitimacy of this approach. Firstly, contractualism is seen in relation to some dominating discourses in Norwegian and European social policy over the last 20–30 years, emphasizing the importance of economic (...) considerations concerning the financial sustainability of the welfare state. Secondly, the article explores some implications of contractual modes of thought for balancing rights and duties in the welfare state, concluding that the principle of a welfare contract is a euphemism for a polity that basically imposes more obligations on the recipients of welfare services. Thirdly, it elaborates on the tension field between the possible democratic benefits of contractualism and more paternalistic consequences. Although relational contracts may enhance client-influenced service provision, paternal outcomes are likely, owing to the fact that such contracts are often used as instruments for behaviour-changing efforts (e.g. to create an economically active citizen). (shrink)

Intergroup competition over resources is attested since the dawn of history. Written and archaeological evidence go back to at least the fourth millennium BC. According to accepted views, evolution has favored humans because of their ability to have cumulative cultures, which has made flexible adaptation possible. One major aspect of this adaptation has been the ability to handle power contests without engaging physical force. Instead, increasing prestige dynamics has allowed contest management by displaying symbolic assets. These have growingly been instrumental (...) in deterring external assaults, thus guaranteeing the possession – or expansion – of a group’s resources. However, while material assets are believed to create status by the evidence of their tangible usefulness (such as foods, husbandry and tools), symbolic assets are by definition subject to ongoing negotiation, entirely dependent on being socio-semiotically recognized as types of capital. Symbolic stock exchanges thus appear to have been determinative since antiquity in hierarchizing ethnic and political groups fighting over resources, prioritizing ones over the others. They have culminated in repertoires of more solid tangible and intangible assets, from impressive buildings, city gates, gardens and temples, to ideas such as freedom, quality of life and wealth, justice, personal security, or whatever values that have gained universal recognition. The article discusses the creation and expansion of such symbolic repertoires and their uncertain position in recent times. (shrink)