[MaFLa] invitation to a talk on`Logic, argumentation and law: What can a logician learn from the study of legal reasoning?`by Ana Dimiskovska - 19 March, 5.30 PM

Krisztina Biber biberk at ceu.hu
Wed Mar 13 07:44:53 CET 2013


The CEU Department of Philosophy cordially invites you to a talk 
(as part of its Departmental Colloquium series)
by
Ana Dimiskovska (Ss. Cyril and Methodius University
Faculty of Philosophy, Skopje) 
on
`Logic, argumentation and law: What can a logician learn from the study
of legal reasoning?`
Tuesday, 19 March, 2013, 5.30 PM, Zrinyi 14, Room 412
ABSTRACT
The question of the logical status of legal reasoning has inspired many
theoretical controversies in contemporary research in the field of logic
and argumentation. On one hand, as the influential work of Perelman has
shown, legal reasoning and argumentation represent a “hard nut” for the
explanatory capacities of the paradigm of deductive, formal logic.
According to Perelman, while in (analytic) syllogistic reasoning the
transition from the premises to the conclusion is always logically
necessary, it is not the same for the transition from arguments to a
decision in legal reasoning, for “a decision always presupposes the
possibility to decide in a different way, or not to decide at all”.
Consequently, legal logic should be treated as specific kind of logic,
essentially non-formal in nature. 
On the other hand, as opponents of this anti-formalist view have tried
to show, the acceptance of this thesis of the specific, non-formal
character of legal logic would have unpleasant consequences for its
normative authority and rational force because it would seriously limit
its pretensions to universality and content-independent applicability.
Some of Perelman’s critics, for example, Joseph Horovitz, find that
Perelman’s view rests on an unwarranted identification of the concepts
“deductive” and “formal”, i.e. of the set of conclusive, deductive
arguments with the set of formal or formalizable arguments. Horovitz
argues for a possible formal yet non-deductive logic as a theory of the
rational force of non-conclusive arguments, in the framework of which
typical legal argument could be adequately represented and formalised. 
More recent philosophical and logical investigations of legal reasoning
generally accept the view of its logical specificity, which is
untreatable by the resources of classical, deductive logic. This
specificity arises from several different sources: the “open texture” of
natural-language concepts in which legal rules are formulated, the need
for their interpretation, the existence of exceptions, possible
conflicts, etc. However, in contemporary investigations, Perelmanian
scepticism towards the possibility of formal treatment of the logical
features of legal reasoning is not often shared. On the contrary, the
need for building new and more sophisticated formal logical tools for
the representation and analysis of legal reasoning is widely recognised,
and practically realised in several theoretical platforms, especially in
theories of defeasible reasoning and non-monotonic logic.
My lecture focuses on the wider philosophical presuppositions and
implications of the plea for constructing new logical tools for the
analysis, representation and evaluation of legal arguments. I try to
show that the main benefit of the study of legal reasoning is the
insight that there is a need for fundamental interventions in the
conceptual and formal basis of classical logic in order to increase its
relevance and applicability to important areas of practical and
theoretical rationality. I emphasize three conceptual modifications to
standard logical theory derived from logical investigations of legal
reasoning: 1) the need to rethink and develop further the concept of
logical consequence; 2) the need to build a different classification of
types of reasoning richer than the standard dichotomies
(analytical/dialectical, inductive/deductive reasoning etc.) and 3) the
need to replace the monological form of the modelling of reasoning,
characteristic of the formal deductive  paradigm, with models of
dialogical-procedural character

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