Legal argumentation: an eclectic approach

Giovanni Damele

January 2011 - December 2013

The starting point for the project is the assumption that there are many “lists” of analytical tools for legal argumentation. For example: logical and dialectical approach, rhetorical approach (such as analysis of persuasive argumentation or stylistic analysis), linguistic analysis, history of political thought and so forth. These approaches (with their respective tools) may not all be incompatible: they may probably be useful at different levels. I will suggest that a kind of “analytical eclecticism” offers the best chance of being useful in order to analyze actual argumentation in legal contexts. This kind of “integrated approach” is not intended as a “general theory of argumentation" but basically as a more exhaustive and useful “toolbox” for argumentation theory.

In order to test this approach, the descriptive part of the project will be strongly relevant: great part of the project will consist in analysing and evaluating argumentations in real contexts. For this purpose, the main field of research will be justificatory arguments advanced by high courts, because in this peculiar case formalistic, dialogic and persuasive dimensions are often coexistent. A significant test will be the analysis of the decisions (Acórdãos) of the Portuguese Tribunal Constitucional