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This book offers its readers an overview of recent developments in the theory of legal argumentation written by representatives from various disciplines, including argumentation theory, philosophy of law, logic and artificial intelligence. It presents an overview of contributions representative of different academic and legal cultures, and different continents and countries. The book contains contributions on strategic maneuvering, argumentum ad absurdum, argumentum ad hominem, consequentialist argumentation, weighing and balancing, the relation between legal argumentation and truth, the distinction between the context of discovery and context of justification, and the role of constitutive and regulative rules in legal argumentation. It is based on a selection of papers that were presented in the special workshop on Legal Argumentation organized at the 25th IVR World Congress for Philosophy of Law and Social Philosophy held 15-20 August 2011 in Frankfurt, Germany.
This book is an updated and revised edition of Fundamentals of Legal Argumentation published in 1999. It discusses new developments that have taken place in the past 15 years in research of legal argumentation, legal justification and legal interpretation, as well as the implications of these new developments for the theory of legal argumentation. Almost every chapter has been revised and updated, and the chapters include discussions of recent studies, major additions on topical issues, new perspectives, and new developments in several theoretical areas. Examples of these additions are discussions of recent developments in such areas as Habermas' theory, MacCormick's theory, Alexy's theory, Artificial Intelligence and law, and the pragma-dialectical theory of legal argumentation. Furthermore it provides an extensive and systematic overview of approaches and studies of legal argumentation in the context of legal justification in various legal systems and countries that have been important for the development of research of legal argumentation. The book contains a discussion of influential theories that conceive the law and legal justification as argumentative activity. From different disciplinary and theoretical angles it addresses such topics as the institutional characteristics of the law and the relation between general standards for moral discussions and legal standards such as the Rule of Law. It discusses patterns of legal justification in the context of different types of problems in the application of the law and it describes rules for rational legal discussions. The combination of the sound basis of the first edition and the discussions of new developments make this new edition an up-to-date and comprehensive survey of the various theoretical influences which have informed the study of legal argumentation. It discusses salient backgrounds to this field as well as major approaches and trends in the contemporary research. It surveys the relevant theoretical factors both from various continental law traditions and common law countries.
Some law students find jurisprudence daunting, impersonal, dry and seemingly detached from practical affairs. William Twining believes that many jurists have been fascinating people struggling with questions that are both historically significant and relevant to contemporary issues. This book brings together previously published essays that centre on three related themes: reading Juristic texts, the role of narrative in law, and relations between theory and practice. Building on a pragmatic view of jurisprudence, the author explores different ways of reading and using Juristic texts, to set them in context, to bring them to life and to engage with the reader's own concerns. He applies this approach to throw fresh light on four familiar figures - Holmes, Bentham, Hart and Llewellyn. Challenging limited agendas and parochial points of view, Twining outlines a programme for a broad approach to legal theory in the context of globalization. He satirizes some bad habits in jurisprudence and explores in depth how stories can be seductive vehicles for cheating in legal contexts, yet are essential for making sense of disputes about fact or law.
Rhetoric is ubiquitous in modern discourse: from arguments delivered in the High Court, to advertisements disseminated in the high street. For the legal and political advocate, persuasion is also a professional technique that must be perfected properly to practise each art. In contrast with the classical era and the middle ages, in which grammar, rhetoric and dialectic were basic features of all education, modern curricula almost entirely neglect any theoretical study of the methods of rhetoric. Rediscovering Rhetoric re-introduces to modern practitioners and students a grasp of the speeches, writings and methodologies of the great classical scholars of rhetoric. Part 1 - Law and Language in the Greco-Roman Tradition provides a contextualised introduction to significant theorists of rhetoric in the classical period, and consists of four chapters written by practising barristers and a current Justice of the Federal Court of Australia. Part 2 - The Practice of Persuasion comprises essays by practitioners distinguished in their pursuit of legal persuasion - one former and two current Justices of the High Court of Australia - illuminating their experiences of argument from the perspective of both bench and bar. Part 3 - The Politics of Persuasion performs a similar function to Part 2, in the related domain of politics. It includes a chapter by Graham Freudenberg, former speechwriter for Gough Whitlam and others. Together the three parts provide a unique inter-disciplinary perspective on the theory and practice of legal and political persuasion. Published in association with the NSW Bar Association.
The Law of Evidence has traditionally been perceived as a dry, highly technical, and mysterious subject. This book argues that problems of evidence in law are closely related to the handling of evidence in other kinds of practical decision-making and other academic disciplines, that it is closely related to common sense and that it is an interesting, lively and accessible subject. These essays develop a readable, coherent historical and theoretical perspective about problems of proof, evidence, and inferential reasoning in law. Although each essay is self-standing, they are woven together to present a sustained argument for a broad inter-disciplinary approach to evidence in litigation, in which the rules of evidence play a subordinate, though significant, role. This revised and enlarged edition includes a revised introduction, the best-known essays in the first edition, and chapters on narrative and argumentation, teaching evidence, and evidence as a multi-disciplinary subject.
This exceptional collection of twenty-two essays on the philosophical fundamentals of tort law assembles many of the world's leading commentators on this particularly fascinating conjunction of law and philosophy. The contributions range broadly, from inquiries into how tort law derives from Aristotle, Aquinas, and Kant to the latest economic and rights-based theories of legal reponsibility. This is truly a multi-national production, with contributions from several distinguished Oxford scholars of law and philosophy and many prominent scholars from the United States, Canada, and Israel. A provocative closing essay by one of the world's leading moral philosophers illuminates how tort law enables philosophers to observe the abstract theories of their discipline put to the concrete test in the legal resolution of real-world controversies based on principles of right and wrong.

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