Thematic sessions

Christian Dahlman, Farhan Sarwar and Frank Zenker

Lund University, Sweden

Rule of Law as a Debiasing Technique

Motivational bias is (correctly) viewed as a potential threat to rule of law, giving rise to the demand that judges be impartial. While cognitive biases have received far less attention, recent empirical studies suggest that legal decision-making is influenced by biases such as anchoring, hindsight, halo-devil effect, and base rate neglect. In turn, the demand that judges must be impartial, for instance, seeks to prevent/mitigate such biases. The paper explorers how other features traditionally associated with rule of law can be viewed as debiasing techniques, thus letting the adversarial system appear as an institutionalized version of a technique known as ‘consider the opposite’. We moreover discuss whether ‘right to counsel’ and ‘right to cross examination’ provide debiasing effects, and examine ‘duty to give reasoned verdicts’ as an institutionalized version of the ‘pro et contra’ technique.

Eveline T. Feteris

University of Amsterdam, Department of Speech Communication, Argumentation Theory and Rhetoric, Netherlands

Legal justification as argumentative activity and as part of a critical discussion

In my presentation I characterize legal justification as an argumentative activity that forms part of a critical discussion between the court other actors. The starting point is the idea that courts have to account for the use of their discretionary power in applying the law in light of the Rule of Law. This poses certain institutional constraints on the argumentative activity and the interplay between the court and the other actors. I ‘translate’ the institutional preconditions regarding the legal obligations of the judge and the forms of critique that he must react to in terms of contributions to a critical discussion. I characterize the dialectical role of the judge in this discussion and I analyse the dialectical function of the different parts of the argumentation in legal justification as discussion moves in a dialectical process.

Olimpia G. Loddo

Department of Law, University of Cagliari, Italy

Praising for Deceiving the Rule of Law: the Ideological Dimensions of a Labour Law Concept

The paper is an analysis of legal argumentations on a peculiar labour law concept. In order to consider in their decision informal norms that seem to regulate some legal relationships between employer and employees, courts of different civil law legal systems created the labour law concept of “company custom”. The concept of “company custom” allows judges and lawyers to consider as a pattern of legally binding behaviour, a long-lasting (pro-employees) practice, being followed by an employer in a company. Judges and lawyers seem to praise the Rule of Law: apparently, both lawyers’ and judges’ argumentations on company custom are not in contrast with the principle of legality. Nevertheless, “company custom” hides several ideological undeclared presuppositions. The extra legislative origin of the concept of “company custom” and the fact that the employer is not “explicitly” bound by a formal legal source, do not seem to match with the Rule of Law.

Richard Gaskins

Brandeis University, USA

The legal characterization of facts at the International Criminal Court

Criminal law judges use diverse argument strategies to assimilate law and facts.  In resolving tensions with the Rule of Law ideal, judges must manage multiple roles for facts in criminal trials.  Beyond facts introduced as trial evidence, there are presumed and stipulated facts regulating the scope of legal rules.  In the International Criminal Court (ICC), specific legal charges confirmed in pre-trial proceedings are limited to crimes matching the pre-trial judges’ “legal characterization” of asserted (and only lightly tested) facts.  In the historic first three ICC trials, sharp controversies have emerged over the power of trial judges to modify these “legal characterizations of facts” during the course of a trial.  At issue is the balance between two distinct roles for facts: facts as trial evidence of guilt or innocence under specified charges, and facts as pre-trial specifiers of those charges.  Resolving these tensions will pose a substantial test for legal rationality.

Stefan Goltzberg

Perelman Centre for legal philosphy – Université Libre de Bruxelles, Belgium

The Rule of Law and strategic argumentation

The Rule of Law, whether defined formally or substantively, states, among other things, that the law should be predictable. On the other hand, legal discourse distinguishes itself from other modes of discourse by the fact that ordinary people and especially lawyers can read the law carefully as it is written, be it to the detriment of what the legislator meant. Some judges and theorists even consider that the judge should not try to hypothesize what the legislator meant apart from what it says. That the judge or the other legal actors do not need to fully cooperate (and understand the cancelable implied content, i.e. the subtext) means that legal argumentation allows some departure from cooperative reading, i.e. some degree of strategic reading. Now, the strategic aspect of legal discourse seems to contradict the Rule of Law and especially the notion of predictability. But this need not be the case. The predictability aspect of the Rule of Law is respected when one knows in advance to what degree the law can be strategically interpreted.

Paul van den Hoven

Utrecht University, Netherlands

The Facebook-judge? How transparency on social media conflicts with the Rule of Law

We reflect on a system in which the bench would give the general audience as direct and as complete insight as possible into its working methods, considerations, procedures and position in the institution as a whole, using social platforms as the medium to enhance its immediate visibility and even to stimulate dialogue, confronting it with the ideology of applying the Rule of Law. Modern legal systems are characterized by a tension between the ideal of the Rule of Law and the argumentative character of law. During ‘direct contact moments’  in the courtroom the modern judge displays an openness for rational disagreement. In her written decision however, produced by a black box, the same person as a Judge symbolizes legal certainty. We will argue that the ritualized Judge’s performance in arguing the decision is dominated by the Rule of Law and therefore maintains a strained relation with a Facebook-judge transparency.

Maciej Hulicki

Jagiellonian University, TELES Patent Rights International, Germany

Achieving legal predictability and reasonableness of argumentation: Utopia or the future of law. Insight from the perspective of patent law.

The Rule of Law implies legal certainty as one of its basic constituents. In order to achieve legal certainty the law has to be predictable. Consequently, predictable legal evaluations must be based on rationality and objectivity. Similarly, they are the fundaments of any reasonable argumentation, i.e. such that is built on strong premises and logics. This paper presents – on the example of recent developments in the patent law – how exploitation of rationality and objectivity allows to conduct more precise and predictable assessments of claimed inventions. The quality of both the reason-giving and decision-making is enhanced with such approach. This new approach paves the way for the application of dedicated IT tools for assessing claimed inventions. It can increase the level of legal discourse – in the patent domain – by rendering it more reasonable. Therefore, greater legal certainty in this field can be boosted by legal informatics.

Hendrik Kaptein

Leiden University, Netherlands

Argumentation by analogy and e contrario in the logic of evidence and proof

Analogy and e contrario reasoning do not just relate to norms but to facts as well. First analogy: if payment of damages is to undo harm done in principle, then victims of harm are to be restored to their “original positions”, not necessarily identical but some or other way equivalent and thus analogous to their positions without any harm done.

E contrario reasoning is important in the logic of circumstantial evidence. Exclusion of some or other explanation of such circumstantial evidence (e.g. some or other exonerating explanation in terms of a set of sufficient conditions) may or may not imply the plausibility of any other explanations. Thus a supposed tortfeasor may find his exonerating explanation of circumstantial evidence rightfully refuted. Still this may not imply that he is the tortfeasor in casu. This is related to issues of abduction, to be found in the logic of analogy as well.

Bart van Klink

VU University Amsterdam, Department of Legal Theory and Legal History, Netherlands

Adjudication and justification. To what extent should the excluded be included in the judge’s decision?

The law can never determine fully its application on concrete cases. Inevitably, the judge has to make a choice among competing interpretations. Because multiple applications are possible, the judge has to justify why she favours one application over the other. In legal and social theory, it is argued that the judge should somehow give recognition to arguments and viewpoints that have been excluded from the final decision. In my paper, I will address the question why, to what extent and in what way the judge has to give recognition to the arguments and viewpoints that she has excluded from her decision. Does the Rule of Law require this inclusion of the excluded or does it undermine the legitimacy of the judge’s decision? Could the parties involved accept a decision in which the judge acknowledges that it could have been different?

Harm Kloosterhuis

Erasmus University, Netherlands

Carel Smith

Leiden University, Netherlands

The Quest for Legal Certainty: Ten Flaws and Fallacies about Analogy

In legal theory, analogical reasoning is as much contested as it is acclaimed as a tool of legal interpretation to ascertain the ideals of the rule of law. It is rejected because it would be infinitely malleable, a perilous form of induction, a phantasm, or just a form of deduction from rules. Other scholars consider it a reasoned elaboration of law, a practice that explains new decisions in terms of past cases, a way to reach practical agreement in matters of moral controversy, a form of abduction bound by significant rational constraints, or the model of all reasoning. What explains the huge differences in valuation? This contribution argues that the different accounts of analogy can be traced back to different theories of meaning and interpretation, and, by consequence, the reasoning methods which are deemed proper to ascertain the Rule of Law. This explains the flaws and fallacies about analogy, as the different accounts rest upon the alleged suitability of this reasoning method in law, rather than upon its characteristics from a logical point of view. This contribution discusses ten flaws and fallacies of analogy.

José Julio León and Cristián Santibáñez

Diego Portales University, Chile

The Role of Judges in Political Conflict (Student Unrest):  Hurdle or Channel?

Student unrest has had considerable political impact on Chilean society. In recent times, it set the stage for Chileans to vote in a government committed to far-reaching reforms intended to transition from unchecked neoliberalism to a more compassionate society. Against this background, this paper examines how a fast-evolving social scenario – rather than a shift in systemic rules – resulted in changes in court decisions in student unrest cases. Prior to the rise of the “student protest” movement, the courts tended to favor school officials. But subsequent decisions tended to find in favor of students, in what was criticized by some as a form of “judicial activism”. We hold that rather than the “formalistic” arguments conservatives champion, an effective Rule of Law democracy requires a “second-degree” justification of rulings that can enable the courts to discharge their social function; that is, help settle or channel political conflict through application of legal norms.

Ingrid Leijten

Leiden Law School, Department of Constitutional and Administrative Law, Netherlands

Core rights reasoning and the Rule of Law

The task of determining core aspects of fundamental rights that are to be protected in an absolute manner, or at least as a matter of priority, is often perceived as conferring too much power on courts. It is viewed as a subjective exercise allowing courts to set policy preferences, something for which they are institutionally ill-equipped. There are however brighter sides to the idea of core rights reasoning. The paper will explore the potential of core rights for a conception of legal reasoning that is in conformity with the Rule of Law. In this regard the focus will lie on legal certainty and predictability, as well as on the way in which core rights reasoning, rather than conferring too much power on a court, can in fact demarcate its task.

Maurizio Manzin

Research Center on Legal Methodology (CERMEG), University of Trento, Faculty of Law, Italy

Legal Argumentation Between Monologue and Dialogue.

From the Absolute Ruler to the Rule of Law

The epistemological paradigm which inspired absolutist regimes (as mantained especially by Hobbes) and legal systems adopting a strict legal syllogism (as mantained by Montesquieu) is nearly the same. Having presumed that some ‘universal’ (i.e. indisputable) forms of reasoning were available, you could apply them in science as well as in giving rules. The consequence of such paradigm for legal argumentation is the reduction of the judge’s work to a monologue. On the contrary, in political regimes and legal systems inspired by the rule of law, dialogue is the basic principle. Just as the members of a parliament must discuss with each other before establishing the statutes, the judge must arrange a critical discussion between the parties before deciding the case. In conclusion, legal argumentation and the rule of law are dialogical by their own nature, and both call for argumentative contexts where reasons should be given to justify one’s own claim.

Antoinette J. Muntjewerff

Department of General Legal Theory Faculty of Law, University of Amsterdam, Netherlands

Fundamental rights and the Rule of Law. Rule of Law as argument for interference

The subject of research is the relation between fundamental rights and the Rule of Law.

We want to find out if  ECtHR judgments use ‘rule of law’ as argument to justify interference in the rights guaranteed in the articles 8 to 11 of the ECHR. We describe subject and aim of our research and our methodology.  Next we address our  research questions: Is ‘Rule of Law’ used as argument in ECtHR judgments in articles 8 to 11 ECHR cases? Is ‘Rule of Law’ used to justify interference in these rights? The set of judgments with ‘Rule of Law’ in arguments is used for further analysis of both the reasoning process and meaning attributed by the court to ‘Rule of Law’. We illustrate the analysis of the reasoning process using one of the judgments.

Marko Novak

European Faculty of Law, Slovenia

Arguing certainty in criminal decision-making and the rule of law

The Rule of Law as a meta-legal principle inter alia requires that legal decision-making should meet legal certainty. In any legal proceedings this applies to establishing a matter of fact with a certain degree of certainty so that the upper premise of logical syllogism could be applied. In criminal law this degree is especially high. If only circumstantial evidence against a defendant exists in a certain case there are usually two possibilities: (a) the circumstantial evidence is strong (corroborative), or (b) the circumstantial evidence is weak. Concerning (a) the relevant fact is established with the so-called moral certainty so it is possible to decide that the defendant’s guilt is proved beyond reasonable doubt. Contrary, in (b) there is no certainty to do the same thus the principle of the benefit of the doubt must be applied. In the light of the above-said, the infamous Slovenian Patria case is rationally reconstructed, on the basis of which the ex-Prime Minister was imprisoned for corruption.

A. Daniel Oliver-Lalana

University of Zaragoza, Departamento de Derecho penal, Filosofía del derecho e Historia del derecho, Spain

Giving reasons for legislation under the Rule of Law: A case-study on parliamentary argumentation

Under a thick conception of the Rule of Law, the duty to give reasons not only affects adjudication but also lawmaking. As sets of normative decisions, laws entail a claim to justifiability which calls for good reasons and hence requires an argumentative process for these to emerge. Since parliamentary debates are ideally expected to be the main place for advancing and discussing legislative reasons, this paper suggests how to reconstruct and analyze these debates as providing a reasonable justification for legislation. The theories of legal argumentation and rational lawmaking are at the heart of this approach. Secondly, drawing on a case study (the deliberations held in the Spanish parliament on the norms allowing minors to abort without parental consent and information), the paper discusses the features and the justificatory potential of legislative argumentation in parliament, and aims to show why a focus on legislative argumentation should be part of an argumentative conception of law in Rule of Law, constitutional states.

H. José Plug

Department of Speech Communication, Argumentation Theory and Rhetoric, University of Amsterdam, Netherlands

Strategic manoeuvring and role shifts in judicial decisions: analysing the judge’s multiple roles

In the field of administrative law, the concept of the Rule of Law concerns the relationship between law and the exercise of power by the government. When citizens are of the opinion that the government oversteps its constitutional power to administer justice, they can take their case to the administrative judge. For a long time the role of the Dutch administrative judge in these disputes had mainly been focused on reviewing the government’s decisions. After the implementation of the General Administrative Law Act, the concept of the administrative judge’s role became subject of discussion. This reorientation on the role of the judge influenced the judges’ performance at court hearings. In this contribution I will determine in what way the reorientation on the judge’s (multiple) roles may become apparent in the strategic manoeuvring that takes place in the administrative judge’s decisions.

Federico Puppo

Research Center on Legal Methodology (CERMEG), University of Trento, Faculty of Law, Italy

Due process and the rule of law. The role of argumentation in the defence of a fair trial

The Rule of Law is one of the most popular topoi of legal and political debate: one interesting interpretation of the Rule of Law is offered by the “Prague Resolution”, held by the IBA’s Council (October, 8, 2009). According to it, it is necessary to recognize an essential relationship between “Rule of Law”, “fair trial” and “due process of law”. To recognize this kind of relationship means also to assert a deep connection with all these principles and argumentation: fair trial and due process are intimately related to argumentative method and to the argumentative roles that are played by every subject involved in a trial, namely judges and lawyers, for which it is possible to show a common ground that connects them from a methodological point of view, as some recent precedents by the Italian Supreme Court and by the Court of Milan may show.

Camillia Salas

University of Neuchâtel,  French Literature Department, Switzerland

Avoiding arbitrariness within the Rule of Law: Practice of judging, or when interpreting facts leads to applying the law

One of the purposes of the Rule of Law is associated with an ideal of non-arbitrariness, which is related to the ‘best’ interpretation of facts, but also the ‘best’ way to apply the Law. Unlike the Anglo-American system, the practice of judging, in Switerzland, relies on applying the law – depending on how facts are interpreted by judges. As this process is part of the legal reason-giving one, this talk intends to examine (1) the inferences that we can draw (what is meant) when the judge expresses himself about facts (what is said) – during proceedings of recorded trials; and (2) in what extent his interpretive practice helps him to legitimate his final decision. Adopting discursive and pragmatic approaches, our goal is to identify the non-expressed stakes that are highlighted through factual arguments.

Paolo Sommaggio

Università degli studi di Trento, Facoltà di Giurisprudenza, Italy

The Rule of Law in action: a “Socratic” proposal in argumentative contexts

In this paper I will explain the strong correlation between the Rule of Law and the adversary model of judicial trial. This model considers the confrontation between the parties of a legal dispute as the basis for assessing the rationality and the alethic value of a judicial outcome in order to overcome the opposing standpoint. I will show that this dialectical structure is not only a logical tool to identify discrepancies in a legal argument, but it also defines the conditions of truth in legal procedures. In opposing each other, the parties create a dialectic ground where the interaction between them allows the emergence of legal truth. This because the adversary model unearths a socratic-dialectical structure as expressed in the classical dialogues and represents what can be called the “Rule of Law in action” because it is the result of a practical pluralistic approach (procedure) to judicial ruling on principles and rights.

Eric Tjong Tjin Tai

Tilburg University, Tilburg, the Netherlands

Rule of law and legal epistemology

In the positivistic conception of law, sources of law are strictly distinguished from other legal materials such as doctrine. Courts are, however, beginning to recognise the legal relevance of doctrine and case law of lower courts. Is the acceptance of (what can be called) epistemic sources acceptable within the Rule of Law? It is submitted that this is justified if we recognise that courts and legislators do not create law in a vacuum, but rather largely build on a prior body of legal knowledge.  Recognition of this fact is relevant to legal argumentation, as it broadens the basis of legal argument, by exposing the often hidden influences on official interpretation of law in court decisions. This in turn is relevant for legal methodology, as it explicates that legal research cannot and should not solely build on legally binding sources, but needs to take other materials into account as well. This approach is supported by recent developments in epistemology, in particular the recognition of testimony as source of knowledge. Besides legal authority we have to recognise epistemic authority in law.

Serena Tomasi

Research Center on Legal Methodology (CERMEG), University of Trento, Faculty of Law, Italy

Dressing arguments: the formulas and the Rule of Law

The aim of this paper is to investigate the relevance and the way of application of the conception of the Rule of Law in the decision making process, with particular regard to the formalities of the judgment. According to the Rule of Law, the judicial system provides a fair and prompt trial. In legal decisions there are some recurring indicator words, which are signposts to help people to identify the legal determination and the reasons in support of it.

The arguments are often “dressed” by the use of recurring formulas: in such cases, we need either to understand how legal indicator words work within explanations, or to appreciate the difference between arguments and explanations in judicial texts. In doing so, we will apply the critical thinking techniques about dressing arguments considering some examples taken from the judicial praxis (in civil law systems).

Jean H.M. Wagemans

Department of Speech Communication, Argumentation Theory and Rhetoric, University of Amsterdam, Netherlands

Rhetorical status theory as an institutional framework for rational disagreement

This paper aims at clarifying the way in which rhetorical status theory contributes to a reconciliation of the tension between the Rule of Law and the argumentative character of law. Traditionally, status theory is interpreted either (1) as a heuristic tool the speaker uses in deciding how to react to an accusation or (2) as a heuristic tool the judge or jury uses in finding the main question to be answered with regard to the conflict between the parties in a legal discussion. In this paper, I will provide a new interpretation of the rhetorical status theory. By examining in what way the four status limit the ways in which litigants may disagree about legal issues, I will interpret the theory as constituting an institutional framework for handling disagreement that answers the need for legal certainty, predictability and reasonableness called for by the Rule of Law.

William Thomas Worster

The Hague University of Applied Sciences, Netherlands

The Obligation to Apply the Vienna Convention on the Law of Treaties

to Justifiably Interpret Treaties

In an effort to codify and bring greater legal certainty to the treaty interpretation process, the Vienna Convention on the Law of Treaties obliges states to apply a particular interpretive methodology. This situation is strange as domestic legal systems do not codify interpretation. While authors have argued over the precise meaning of the methodology, what has not been studied is whether it is truly legally binding, and thus whether it increases legal certainty in ascertaining a treaty’s meaning. The Vienna Convention formula, being a treaty, is clearly a rule of international law. However, states do not seem to regard violations of the methodology as unlawful. They argue over the substantive outcome of interpretation (i.e. the conclusion), they do not argue violations of the methodology (i.e. the interpretive process). This paper will examine the methodology from the perspective of whether it is a binding rule, and whether it brings greater certainty.