- Giovanni Damele, 1 March 2013, 11:00

ArgLab Research Colloquium

Av. de Berna 26, Edifício ID, sala 0.07

Towards a realist approach to legal argumentation

Giovanni Damele, Universidade Nova de Lisboa

Abstract

As Stephen Toulmin pointed out, “lawsuits are just a special kind of rational dispute, for which the procedures and rules of argument have hardened into institutions”. The fact that legal discourses are published and institutionalized facilitates the identification of argumentation techniques. However, these techniques overlap with traditional canons of statutory interpretation. Indeed, the “core” of legal argumentation, the so called quaestio iuris (on which the quaestio facti depends), is the argumentation of interpretive decisions, i.e. the motivation of judicial decisions. For this reason, a theory of legal argumentation cannot be separated from a parallel theory of legal interpretation. Thus, a realist (or sceptical) theory of legal argumentation assumes that the judges, when interpreting statutes, do not find a meaning. Instead they create one, and, subsequently, they justify (rhetorically) their decisions according with a specific legal ideology (i.e. “the best solution for the case”, “the solution more consistent with the legal system” or “within the ethical tradition” etc.).