Methodologies for Research on Legal Argumentation

Michał Araszkiewicz, Tomasz Żurek (Eds.)

Special Issue of the Informal Logic Journal (vol. 36, No 3. 2016)

The special issue of the Informal Logic journal devoted to the “Methodologies for Research on Legal Argumentation” presents an international discussion of the research on the current state of the art in developing methods and conceptual frameworks in the study of legal argumentation.

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Detailed Description

The special issue of the Informal Logic journal devoted to the “Methodologies for Research on Legal Argumentation” is aimed at exploring the current state of the art in developing methods and conceptual frameworks in the study of legal argumentation. The main objective of the issue is to provide space for the presentation of the methodological ideas concerning the research on legal argumentation from three perspectives: AI and Law, (philosophical) argumentation theory, and legal theory. There is strong need for cooperation and mutual inspiration between these three domains of research in order to develop more effective, accurate, and scientifically adequate theories and models of legal argumentation. Thorough discussion of scientific aims and adopted methodologies is needed in this field, which may lead to establishing a greater number of interdisciplinary research projects related to legal argumentation.

This special issue of the Informal Logic journal brings together a selection of insightful papers that address a wide range of topics related to the methodology of research on legal argumentation.

The first two papers connect legal-theoretical considerations with the insights from the field of general epistemology.

The special issue begins with the paper by Jaap Hage entitled “Anything Goes. An Apology for Parallel Distributed Legal Science” in which the author discusses the nature of knowledge of doctrinal legal science. The proposal is based on the notion of coherentist justification and Popperian idea of the third world: the world of objective concepts and theories. Consequently, according to the author, beliefs about law are justified if they are a part of coherent sets of beliefs and scientific knowledge can be seen as a type of world-3 knowledge. The adoption of these theses enables the author to provide explanation for certain features concerning legal science and often seen as troubling, such as the multitude of branches of legal research, differentiated aims thereof, disputable methods, and the apparently reactive character of many legal scientific publications.

The second paper by Danny Marrero, “An Epistemological Theory of Argumentation for Adversarial Legal Proceedings,” also examines the important connection between law and knowledge theory, albeit on more concrete level. The author is interested in the application of epistemological theories of argumentation to account for argumentation in the process of litigation. He criticizes a rhetorical view on legal argumentation by pointing out that this perspective cannot capture adequately the epistemological dimension of judicial proceedings and carefully analyzes the assumptions grounding this criticized view: strict invariantism and extreme adversarialism. Then the author proceeds to outline the epistemological theory of argumentation in legal adversarial proceedings. In his view, apart from its descriptive advantages, this theory should secure substantively just treatment of individuals in judicial proceedings.

Fabrizio Macagno in “Defining marriage. Classification, interpretation, and definitional disputes” tackles the problem of legal classification, that is, determining that a certain state of affairs falls within the scope of a legal category. The author employs the influential theory of argumentation schemes to clarify the structure of arguments used in the context of legal classification as well as critical questions used to attack these arguments. Then Macagno discusses the famous Obergefell v. Hodges case, where the Supreme Court of the United States examined the concept of marriage (and the category of liberty) in the context of the (un)constitutionality of state legislative provisions not allowing same-sex marriage. The contribution reveals both the expressive power and the limits of the argumentation schemes theory with regard to the analysis of actual judicial argumentation.

In the next paper, “Administrative judicial decisions as a hybrid argumentative activity type” written by José Plug, the author demonstrates how conventions in the legal communicative domain may change and what consequences these changes may have for the characterization of the communicative activity type. The illustrative material chosen by the author is Dutch administrative law. Plug investigates the implications of a major reform of this branch of law which added to the traditional function of the administrative judge (that is, assessing the legitimacy of governmental decisions) also the function of the “alternative mediator.” In order to characterize the argumentative activity of the judge in this new context, he employs the conceptual scheme elaborated in the field of pragma-dialectics, one of the most influential theories of argumentation.

The paper “Evidence Assessment in Refugee Law with Stories and Arguments” by Floris Bex and Viola Bex-Reimert analyzes whether a systematic method for reasoning with evidence in legal cases – the hybrid theory of stories and arguments – can be applied to a legal domain the importance thereof is rapidly growing nowadays, namely, the assessment of asylum cases in Europe. This analysis serves as a case study for testing the applicability of the hybrid theory outside of the standard context of criminal law. The authors thoroughly explain the basic facets of hybrid theory of argumentation against the background of the chosen illustrative material. In conclusion, they discuss how accurately the theory in question captures the process of Credibility Assessment in Refugee Law and indicate the directions of future work on the discussed theory as well as possible amendments to the investigated legal procedures.

The final paper: “Redundancy of redundancy in justifications of verdicts of Polish Constitutional Tribunal” written by Jan Winczorek presents the analysis of the outcomes of an empirical social-scientific study of argumentative patterns in the justifications of verdicts of the Polish Constitutional Tribunal. The author argues that the Polish Constitutional Tribunal prefers doxa-type argumentation, in particular arguments based on previous decisions by the Tribunal, lacking a deepened discussion of the rationale behind these decisions. The paper is an example of the application of quantitative methods in the analysis of corpora of legal texts combined with legal-theoretical analysis based on the findings Niklas Luhmann’s systems theory, especially on his account of the notion of redundancy.

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