. The author discusses the conditions necessary to accept the one right answer theory. The argument is based on an analysis of the deep structure of the justified fractional decisions pertaining to the substantive decisional model of the judicial application of law within the statutory law system. The role of evaluative choices is needed to justify the decisions in question at least in hard cases. This makes the theory of one right answer unacceptable in a noncognitivist axiological framework.

The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of principles, and (...) kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rationality. (shrink)

This article proposes a formal analysis of a fundamental aspect of legal reasoning: dealing with normative conflicts. Firstly, examples are illustrated concerning the dynamics of legal systems, the application of rules and exceptions, and the semantic indeterminacy of legal sources. Then two approaches to cope with conflicting information are presented: the preferred theories of Brewka, and the belief change functions of Alchourrón, Gärdenfors, and Makinson. The relations between those approaches are closely examined, and some aspects of a model of reasoning (...) with normative conflicts are outlined. Since this model takes into account an ordering of the involved regulations, criteria to order legal norms are finally specified. (shrink)

In this paper we will analyse the issue of defeasibility in the law, taking into account research carried out in philosophy, artificial intelligence and legal theory. We will adopt a very general idea of legal defeasibility, in which we will include all different ways in which certain legal conclusions may need to be abandoned, though no mistake was made in deriving them. We will argue that defeasibility in the law involves three different aspects, which we will call inference‐based defeasibility, process‐based (...) defeasibility, and theory‐based defeasibility. Only the integration of these three perspectives allows us to provide a satisfactory account of the role of defeasibility in legal reasoning. (shrink)

The author analyzes the relations between truth and law starting from the distinction between practical and theoretical spheres. He shows, first, how moral and legal statements and reasoning are connected with an operation of weighing and balancing different values and principles and how this operation is ultimately based on personal and intuitive preferences and feeling. The criteria developed by the theoretical sciences to define truth (coherence, consensus and pragmatic success) can only be translated into practical statements as criteria of correctness (...) because we cannot affirm that a norm or value statement is true or false. The three criteria become interrelated indices of correctness: They are criteria for rational discourse. (shrink)

Moral statements are related to some ought‐ and good‐making facts. If at least one of these facts exists then it is reasonable that an action in question is prima facie good and obligatory. If all of these facts take place, then it is reasonable that the action is definitively good and obligatory. Yet, moral reasoning is relatively uncertain. The law is more “fixed”. Legal interpretatory statements ought to express a compromise between the literal sense of the law and moral considerations. (...) They can be to a high degree both coherent and accepted. One may emotionally reject them but most people have a disposition to endorse a coherent and commonly accepted value system. (shrink)

. “The Notebook Corner,” edited by Enrico Pattaro, makes its first appearance here as a new section of Ratio Juris. This new section can be described in a sense as an offshoot of the project for A Treatise of Legal Philosophy and General Jurisprudence, a work still in progress composed of five theoretical volumes and six historical ones. The theoretical volumes receive a brief presentation in the paper immediately below, with a specific focus on Volume 1, entitled The Law and (...) the Right: A Reappraisal of the Reality That Ought to Be. This volume is then discussed as well by Rosaria Conte and Cristiano Castelfronchi in the second paper of this “Notebook Corner”. (shrink)

The theory of rhetoric is recognised and widely used in a number of disciplines, particularly in the social sciences. It is therefore slightly surprising that it has not gained an important footing in jurisprudence. It is often argued that rhetoric and argumentative justification are clearly different issues. However, the present paper argues that they are in fact two aspects of argumentation and that the theory of rhetoric may be used also in the context of legal reasoning.

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

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)

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)

I characterize the deductivist ideal of justification and, following to a great extent Toulmin’s work The Uses of Argument, I try to explain why this ideal is erroneous. Then I offer an alternative model of justification capable of making our claims to knowledge about substantial matters sound and reasonable. This model of justification will be based on a conception of justification as the result of good argumentation, and on a model of argumentation which is a pragmatic linguistic reconstruction of Toulmin’s (...) model of argument. (shrink)