scholarly journals Arguments of statutory interpretation and argumentation schemes

2017 ◽  
Vol 2 (1) ◽  
Author(s):  
Fabrizio Macagno ◽  
Douglas Walton
Keyword(s):  
Common Law ◽  
Logical Structure ◽  
Argumentation Schemes ◽  
Statutory Interpretation ◽  
Critical Questions ◽  
Defeasible Argumentation ◽  
Argumentation Structure

AbstractIn this paper it is shown how certain defeasible argumentation schemes can be used to represent the logical structure of the most common types of argument used for statutory interpretation both in civil and common law. The method is based on an argumentation structure in which the conclusion, namely, the meaning attributed to a legal source, is modeled as a claim that needs that is be supported by pro and con defeasible arguments. The defeasible nature of each scheme is shown by means of critical questions, which identify the default conditions for the accepting interpretative arguments and provide a method for evaluating a given argument as weak or strong.

scholarly journals Esquemas de argumentação para a interpretação da lei

2019 ◽  
Vol 3 (2) ◽  
pp. 73-96
Author(s):  
Fabrizio Macagno
Keyword(s):  
Argumentation Schemes ◽  
Statutory Interpretation ◽  
Critical Questions ◽  
Logical Structures ◽  
Argumentative Structure

RESUMO:Neste artigo demonstra-se como os esquemas argumentativos (esquemas que representam argumentos refutáveis, combinados com perguntas críticas correspondentes), podem ser usados para representar a estrutura lógica dos vários tipos de argumentos reconhecidos como fundamentais na interpretação da lei por Tarello (1980). Defende-se que o processo de interpretação da lei tem uma estrutura argumentativa distinta na qual a conclusão, nomeadamente o significado disputável ou questionado atribuído a uma fonte jurídica, é uma afirmação que necessita ser respaldada por argumentos refutáveis a favor ou contra. Esta transformação de argumentos de interpretação numa estrutura de esquemas argumentativos é analisada em detalhe em dois argumentos, o argumento psicológico e o argumento a contrario. A natureza refutável de cada esquema é demonstrada por meio de questões críticas que identificam as condições padrão para a aceitação de argumentos interpretativos e fornecem um método para avaliar a força ou a fraqueza de um determinado argumento.  ABSTRACT:In this paper, the logical structures of the interpretative arguments summarizing the various interpretative canons considered fundamental by Tarello (1980) are represented by argumentation schemes, namely patterns of defeasible arguments combined with their corresponding critical questions. The process of statutory interpretation is shown to have a specific argumentative structure where the conclusion corresponds to the disputed or questionable meaning attributed to a legal source and needs to be supported and attacked through defeasible arguments. This translation of interpretative arguments into argumentation schemes is illustrated in detail considering two specific arguments, the psychological and the a contrario arguments. The defeasibility conditions of each scheme are summarized in a set of critical questions, which identify the default conditions for accepting interpretative arguments and provide a method for evaluating a given argument as weak or strong. 

Communication Through Law?

2021 ◽  
pp. 165-179
Author(s):  
Anna Stilz
Keyword(s):  
National Culture ◽  
Political System ◽  
Common Law ◽  
The State ◽  
Fetal Life ◽  
Critical Questions ◽  
Special Duty

This commentary raises four critical questions for Shiffrin’s account of democratic law. First, why does our duty to communicate recognition for others as moral equals ground a special duty to our fellow citizens to cooperate together in a democracy? Second, whose messages exactly does democratic law communicate—is it the messages of individual citizens or the messages of the state as a corporate agent? Third, why does discharging our communicative duties require us to play an equal role in our political system, especially given Shiffrin’s endorsement of the idea that common law counts as a form of democratic co-authorship? And finally, how does the state’s pursuit of discretionary interests, for example in the promotion of a national culture or the preservation of fetal life, help us to send morally valuable messages to one another?

A Statute's Meaning Need not be its Law

2018 ◽  
Vol 46 (3) ◽  
pp. 455-479
Author(s):  
Jamie Blaker
Keyword(s):  
Philosophy Of Language ◽  
Recent Article ◽  
Common Law ◽  
Linguistic Meaning ◽  
Statutory Interpretation ◽  
The Law ◽  
The 1950S

There is a theory of statutory interpretation that is simple, elegant and well-subscribed. The theory is known as the meaning thesis, and it holds that the law of a statute consists in the ordinary linguistic meaning that is communicated by the statute's language. In a recent article Dale Smith has sought to discredit the meaning thesis. Here I will seek to discredit the thesis further, this time by drawing on the accomplishments of linguistics and the philosophy of language. In order for the meaning thesis to succeed, it must be demonstrated that the thesis is consistent with the established common law rules of interpretation. However, some of these rules appear to require that judges defy the plain linguistic meanings of statutes in limited circumstances. The meaning theorist's challenge, then, is to find some way to show that the established rules of interpretation do not truly cause judges to defy the language of statutes, despite appearances to the contrary. In this article, I will explain why the meaning theorist only has bad options in this regard. Of the available options, meaning theorists have settled for an argument that is premised on a flawed theory of how language communicates meaning. The theory of communication in question was proposed by H P Grice in the 1950s, but discredited by his contemporaries.

scholarly journals Mood and force in defeasible arguments

2021 ◽  
pp. 1-26
Author(s):  
Ryan Phillip Quandt ◽  
John Licato
Keyword(s):  
Artificial Intelligence ◽  
Language Processing ◽  
Word Meaning ◽  
The Other ◽  
Argumentation Schemes ◽  
Easy Task ◽  
Critical Questions ◽  
Grammatical Mood ◽  
The Moment ◽  
Precise Theory

Argumentation schemes bring artificial intelligence into day to day conversation. Interpreting the force of an utterance, be it an assertion, command, or question, remains a task for achieving this goal. But it is not an easy task. An interpretation of force depends on a speaker’s use of words for a hearer at the moment of utterance. Ascribing force relies on grammatical mood, though not in a straightforward or regular way. We face a dilemma: on one hand, deciding force requires an understanding of the speaker’s words; on the other hand, word meaning may shift given the force in which the words are spoken. A precise theory of how mood and force relate helps us handle this dilemma, which, if met, expands the use of argumentation schemes in language processing. Yet, as our analysis shows, force is an inconstant variable, one that contributes to a scheme’s defeasibility. We propose using critical questions to help us decide the force of utterances.

scholarly journals Justification of Argumentation Schemes

2005 ◽  
Vol 3 ◽  
Author(s):  
Douglas Walton
Keyword(s):  
Expert Opinion ◽  
Human Reasoning ◽  
Argumentation Schemes ◽  
Case Study Method ◽  
Defeasible Argumentation ◽  
Different Types ◽  
Comparative Examination ◽  
Argument From Expert Opinion ◽  
Pragmatic Justification

Argumentation schemes are forms of argument that capture stereotypical patterns of human reasoning, especially defeasible ones like argument from expert opinion, that have proved troublesome to view deductively or inductively. Much practical work has already been done on argumentation schemes, proving their worth in A1 [19], but more precise investigations are needed to formalize their structures. The problem posed in this paper is what form justification of a given scheme, as having a certain precise structure of inference, should take. It is argued that defeasible argumentation schemes require both a systematic and a pragmatic justification, of a kind that can only be provided by the case study method of collecting key examples of arguments of the types traditionally classified as fallacies, and subjecting them to comparative examination and analysis. By this method, postulated structures for schemes can be formulated as hypotheses to solve three kinds of problems: (1) how to classify such arguments into different types, (2) how to identify their premises and conclusions, and (3) how to formulate the critical questions used to evaluate each type of argument.

scholarly journals DISTINGUISHING CONSTITUTIONAL AND STATUTORY INTERPRETATION IN JUDICIAL REVIEW CASES: A BLURRED BOUNDARY LINE

2018 ◽  
Vol 18 (2) ◽  
pp. 235
Author(s):  
B Bisariyadi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Boundary Line ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
Court Practice

The establishment of the Constitutional Court to hold power of reviewing the constitutionality of Laws raises discourse on the distinction between constitutional interpretation and statutory interpretation. In judicial review cases, the separation, either in common law or civil law tradition, between the two interpretations is not clearly distinguished. The Indonesian Constitutional Court, in judicial review decisions, shows that the Court does not only interpret constitutional provision. In a number of decisions, the Court has put more emphasis on the use of statutory interpretation. The essay discusses the Constitutional Court practice in the use of constitutional interpretation and statutory interpretation on judicial review cases.Keywords: Constitutional Court, judicial review, constitutional interpretation, statutory interpretation.

Epistemic and deontic authority in the argumentum ad verecundiam

2019 ◽  
Vol 10 (2) ◽  
pp. 287-315
Author(s):  
Marcin Koszowy ◽  
Douglas Walton
Keyword(s):  
Argumentation Schemes ◽  
Argumentation Scheme ◽  
Critical Questions ◽  
Informal Fallacy ◽  
Argumentum Ad Verecundiam ◽  
Deontic Authority

Abstract The aim of this paper is to elaborate tools that would allow us to analyse arguments from authority and guard against fallacious uses of them. To accomplish this aim, we extend the list of existing argumentation schemes representing arguments from authority. For this purpose, we formulate a new argumentation scheme for argument from deontic authority along with a matching set of critical questions used to evaluate it. We argue that clarifying the ambiguity between arguments from epistemic and deontic authority helps building a better explanation of the informal fallacy of appeal to authority (argumentum ad verecundiam).

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