- Reasoning and Argumentation in Legal Discourse, 13 December 2012
Sala de Reuniões, 7° Piso da Torre B
Argumentation, reasoning and justification play a crucial role in law. Informal, or natural, reasoning is fundamental for interpretation of laws or other legal documents, for the persuasive force of written or oral statements, for the assessment of evidence.
Studies in argumentation theory have approached the problem of reasoning in the legal context bringing to light how specific theoretical tools and frameworks can be applied to law. On the other hand, scholars in the field of law have more and more focused on the importance of defeasible and enthymematic reasoning.
The purpose of this conference is to bring new theoretical and methodological stimuli to both the philosophical and the legal approach to argumentation studies by bringing together experts from various areas of philosophy of law dealing with different dimensions of reasoning in the legal context.
Programme:
Morning
10:00 José Rodrigo Rodriguez (CEBRAP/SP, Brazil).
Ethos, pathos and logos in the Brazilian Supreme Court.
This presentation is a part of a research project that aims both to create both a methodology to describe the decisions of Brazilian Supreme Court and a critical approach towards its decisions.
Legal and social research in Brazil evaluates negatively the ethos and pathos argumentation carried on by this court. Almost all Brazilian legal and social sciences scholars study our Supreme Court through the lenses of theories adequate to courts that do not debate on live in TV, do not decide cases through the majority of the votes of the judges and do not allow every single judge to elaborate an individual vote for each case. As a result, these studies consider Brazilian institutional reality as complete pathology when compared to Europe or North-America.
This project will follow a different path. It will a) describe and reconstruct the argumentation of the most controversial cases examined by the Brazilian Supreme Court in the last 5 years through the lenses of Aristotle’s Rhetoric, b) develop a theory of the function of the Brazilian Supreme Court as it is in the separation of powers of Brazil and c) discuss both the positive and negative aspects of Brazilian personalism and emotionalism.
To achieve the last objective, this project will reconstruct a) the critical meaning of the comparative analysis of German, French and English legal traditions by Franz Neumann’s The Rule of Law, b) Brazilian theories on personalism and emotionalism - especially the view of the rule of law of Sergio Buarque de Holanda’s Raízes do Brasil and c) the feminist critique of the Theory of Argumentation of Jürgen Habermas and its consequences to the understanding of role of the rule of law in the dynamic of multiple modernizations.
This presentation will focus on the problems regarding the description of Brazilian Supreme Court decisions and in the discussion of the role of this Court in the separation of powers.
10:45 Dimitri Dimoulis (Fundação Getulio Vargas), Soraya Lunardi (Universidade Estadual Paulista (Unesp).
Sacralidade e heresia no texto constitucional. A ação direta de inconstitucionalidade 4.277 sobre união estável de pessoas do mesmo sexo do Supremo Tribunal Federal brasileiro.
The paper provides a close lecture of the arguments and methods of legal construction, employed in the extensive individual opinions written by the Justices of the Brazilian Supreme Court in the case which authorized the same sex civil union. After tracing an outline of the legal problem, the possible solutions and the advantages and risks of each, we analyze the individual opinions, showing their methodological syncretism, the use of legal methods and arguments in a contradictory way as well the deficiencies in the reasoning. The Justices use legal arguments, but do not meet the requirements of rationality in the decision-making. We have a rhetorical attempt that aims to satisfy the public opinion (in this case, the most critical and progressive groups) than to offer a comprehensive and coherent solution according the normative elements of the brazilian Constitution of 1988.
11: 30 Coffee Break
12:00 Jordi Ferrer Beltrán (Universitat de Girona).
Legal Proof and Legal Truth: Bentham revisited.
Jeremy Bentham is considered to be one of the most important forerunners of the so-called Rationalist Tradition of evidence. In this paper, I analyse Bentham's antinomian or abolitionist thesis that defends the sufficiency of the general epistemology for evidential reasoning. The paper distinguishes between three phases of evidential and proof reasoning: the accumulation of a set of evidence pieces, the assessment of the weight of evidence and the phase of the legal decision about proven facts. I criticise the scope of the antinomian or abolitionist thesis and argue that epistemological criteria are insufficient to guide us in all the different aspects of evidence and especially at the third phase of evidential reasoning. They are insufficient because they do not have a practical character and consequently do not purport to guide us in our decisions and deliberations.
13:00 Lunch
Afternoon
15:00 Maurizio Manzin and Serena Tomasi (CERMEG-Università di Trento).
Argumentation in Legal Context: A Rhetorical Approach.
Part One: A normative account (prof. dr. Maurizio Manzin)
Part Two: An example from legal practice (avv. dr. Serena Tomasi)
Our presentation is divided into two parts: Part One is aimed at setting up a normative model for legal argumentation based on rhetoric; Part Two is practice-oriented, providing an employment of the argumentative method in an Italian Court’s opinion.
As far as the normative model is concerned, we argue that the premises of legal reasoning are properly not given but built throughout an articulate process of rhetorical argumentation. Such process can be divided into gradual steps: we try to provide a reliable scheme either for judges (in order to arrange the grounds for decision) or for lawyers and legal scholars (allowing them to check the logic consistency of the judgement). In more general terms, we try to answer the question: how to obtain, from the part of all the arguers in trial, a reasonable judgement?
One of the first matters to be settled concerns the features of the legal context, which is pretty different from the scientific one: in the former, as the trial’s structure clearly shows, a dialogue is represented, with facing actors speaking in a substantially vague language and starting their discourses from various possible points. A good legal reasoning should depend on a set of logical moves ordered in some progressive steps and including: (a) the check of the parties’ standpoints and (b) of their intrinsic and extrinsic coherence; (c) the building of the rhetorical syllogism, and (d) the final inference of the statements on law and fact.
Our study is equipped with a practical example: an Italian Supreme Court’s decision will be taken into account and examined in its structure. The purpose is double: to improve the rhetorical argumentative model and to show the lacking parts of it and its legal effect. We will also pay proper attention to the linguistic elements, pointing out when the legal discourse implies aesthetic or moral values, the logical and dialectical engagement, and/or the force of legitimate authority.
17: 00 Giovanni Battista Ratti (Università di Genova).
Counterfactuals in the Law. A Survey
In this paper I aim to examine some – eminently logical – aspects of counterfactual conditionals and their use in the field of law. To this end, I will be analysing the notion of the counterfactual conditional and the difficulties found in laying foundations for a logic that may shed some light on its (alleged) peculiarities. I will then approach some problems linked to the use of these statements in legal discourses, at different levels of abstraction.
17:45 António M. Hespanha (Universidade Nova de Lisboa).
Diálogos: Discurso Judiciário; Discurso Jornalístico; Discurso do cidadão.