Panels

PANEL: LEGITIMACY OF LEGAL DECISIONS AND JUSTIFICATION IN MATTERS OF FACT IN CRIMINAL TRIALS

Chair: Henry Prakken

Panelists:

Bart Verheij

Institute of Artificial Intelligence, University of Groningen, Netherlands

Three ways of justifying legal decisions in matters of fact

An important aspect of the rule of law is the legitimacy of legal decisions and justifications of fact. Legitimacy of legal decisions of fact and their justification in criminal trials requires that decisions and their justifications are based on rationally well-founded theories of fact finding. This panel is about this requirement. In the academic literature three approaches to rational proof in criminal cases are investigated, broadly speaking based, respectively on Bayesian statistics, on scenario construction and on argumentation. In this paper these approaches are introduced and compared on their theoretical adequacy and practical feasibility. This talk is meant to be an introduction to the panel.


Floris Bex

Department of Information and Computing Sciences, Utrecht University, Netherlands

Schemes for integrating stories and arguments in criminal legal proof

An important aspect of the rule of law is the legitimacy of legal decisions and justifications of fact. Legitimacy of legal decisions of fact and their justification in criminal trials requires that decisions and their justifications are based on rationally well-founded theories of fact finding. This paper proposes one such theory. I have argued that both arguments – defeasible inferences based on evidence – and stories – coherent sequences of events- are needed in order to do justice to all the relevant reasoning mechanisms as they are recognised and used by legal decision makers and forensic investigators. In this paper, I will discuss the integrated argumentative-narrative approach to reasoning in the process of proof, in which arguments and narratives can be used in conjunction as well as interchangeably. More specifically, I will focus on the use of story schemes in the dialectical discourse.


Anne Ruth Mackor

Faculty of Law, University of Groningen, Netherlands

Improving judicial argumentation about evidence in unus testis cases by comparing alternative scenarios

An important aspect of the Rule of Law is the legitimacy of legal decisions and justifications of fact. Legitimacy of legal decisions of fact and their justification in criminal trials requires that decisions and their justifications are based on rationally well-founded theories of fact finding. This paper discusses one such theory. Since 2009 the Supreme Court demands in so-called unus testis cases that the statement of the victim or witness should be “sufficiently supported by” or “have a not too distant relation to” other evidence. It does not explicate, however, what “sufficient support” or a “not too distant relation” is. Thus, these decisions offer hardly any argumentation and therefore give very little guidance to the lower courts about how they should assess the amount, the kind and the quality of evidence that is needed, next to the statement of the witness or the victim, to convict a defendant. I will show how judicial argumentation can be improved by making use of the story-based approach to criminal evidence.


Henry Prakken

Faculty of Law, University of Groningen and Department of Information and Computing Sciences, Utrecht University, Netherlands

Direct and indirect probabilistic reasoning in criminal proof: some examples

An important aspect of the rule of law is the legitimacy of legal decisions and justifications of fact. Legitimacy of legal decisions of fact and their justification in criminal trials requires that decisions and their justifications are based on rationally well-founded theories of fact finding. This paper discusses one aspect of such theories. In earlier work I discussed and compared two probabilistic accounts of the strength of evidential arguments. I argued that Bayesian accounts only apply to certain styles of evidential reasoning, namely, when the direction of the reasoning is from a hypothesis to the evidence (as in inference to the best explanation). When the direction is from the evidence to a hypothesis (as in reasoning with rules of thumb) then Bayesian thinking does not apply. For such cases I sketched an alternative probabilistic account of argument strength. In the present paper I wil discuss with some example criminal cases to what extent judges and others involved in Dutch criminal cases are aware of the difference between these style of reasoning and whether they apply them correctly.


Sjoerd Timmer

Department of Information and Computing Sciences, Utrecht University, Netherlands

Explaining forensic Bayesian Networks with argumentation

An important aspect of the Rule of Law is the legitimacy of legal decisions and justifications of fact. Legitimacy of legal decisions of fact and their justification in criminal trials requires that decisions and their justifications are based on rationally well-founded theories of fact finding. This paper discusses the combination of two such theories. Recent miscarriages of justice have increased the interest from legal practice in scientifically founded ways of treating evidence. Forensic statistics can provide such foundations. However, because of the communication gap between forensic statisticians, crime investigators and lawyers, statistical evidence is easily misinterpreted in court, resulting in wrong decisions. Therefore, methods must be developed to support the communication between the parties involved, in order to promote the legitimacy of decisions of fact and their justification. A current research project funded by the NWO Forensic Science Programma proposes to develop methods that support argumentation- and narrative-based communication about statistical evidence, building on AI models of argumentation and scenario construction.


Charlotte Vlek

Institute of Artificial Intelligence, University of Groningen, Netherlands

Explaining forensic Bayesian Networks with scenarios

An important aspect of the rule of law is the legitimacy of legal decisions and justifications of fact. Legitimacy of legal decisions of fact and their justification in criminal trials requires that decisions and their justifications are based on rationally well-founded theories of fact finding. This paper proposes discusses the combination of two such theories. Recent miscarriages of justice have increased the interest from legal practice in scientifically founded ways of treating evidence. Forensic statistics can provide such foundations. However, because of the communication gap between forensic statisticians, crime investigators and lawyers, statistical evidence is easily misinterpreted in court, resulting in wrong decisions. Therefore, methods must be developed to support the communication between the parties involved, in order to promote the legitimacy of decisions of fact and their justification. Since lawyers are more used to thinking in terms of arguments and scenarios, a current research project funded by the NWO Forensic Science Programma proposes to develop methods that support argumentation- and narrative-based communication about statistical evidence, building on AI models of argumentation and scenario construction.


PANEL ‘INTERNATIONAL LAW AS AN ARGUMENTATIVE PRACTICE’

Chair: Ingo Venzke

Different strands of scholarship converge on thinking of international law as an argumentative practice. At the same time, their superficial agreement unravels upon a closer look at competing underlying conceptions of what it means to argue. Such a closer look continues to be largely missing from the debates. While remnants of arguing as right inferences from first principles continues to fade from view, thinking of arguing as aimed at winning acceptance is increasingly en vogue. The emphasis on acceptance alone seems to present but a flat view of

international law as an argumentative practice as it can hardly account for the quality of arguments and the mindsets of participants in that practice. If international law is to be taken seriously as a normative practice, something else needs to replace the emphasis on acceptance so as to account for the quality of reasons. What are the competing conceptions of argument in the international legal literature that implicitly or explicitly subscribes to thinking of international law as an argumentative practice? Which ones fare better than others? Which

conceptions square best with recent developments in argumentation theory? Those are the underlying questions that the proposed panel intends to tackle.

Panelists:

Jean d’Aspremont

Public International Law, University of Manchester, United Kingdom; International Legal Theory, University of Amsterdam, Netherlands

Social validation in international legal argumentation

Since the demise of philosophical foundationalism and that of the Aristotelian idea of an inner meaning of words, the scholarship about international law is no longer perceived as a mining activity geared towards the extraction of pre-existing meaning. Rather, international legal scholarship is in a state of fierce competition for persuasiveness and semantic authority. Whereas the rule of law could stand on firm stable grounds on the first account, it shakes under the scrutiny of the latter. The demise of foundationalism does not elevate persuasiveness into the determinant of legality, nor does it lead to a total rejection of the internal point of view. The configuration of that competition for naming is informed by the current structure of (and the membership to) the interpretative community of international law.


Valerio Priuli

Institute for Public International Law and Comparative Constitutional Law, Univeristy of Zurich, Switzerland

The Distinction between Explaining and Arguing: A Theoretical Backbone for the Validity Assessment of International Legal Arguments?

The paper will use recent pragmatic and dialogical developments in argumentation theory (see van Eemeren & Grotendorst 2004 and Wohlrapp 2009/2014) to analyse the practice of international legal argumentation on the example of the advisory proceedings of the International Court of Justice on the question of the accordance of the declaration of independence of Kosovo with international law, hereby focusing on the vexed question of the legality of secession. From a theoretical perspective, it will use one of the main distinctions made in the theory of Harald Wohlrapp, i.e. the distinction between explaining and arguing. This distinction is the theoretical backbone for the validity assessment of different claims that are raised in a certain argumentative practice. The paper will try to answer the question, if this distinction can be a helpful tool to assess the validity of claims that are raised in the practice of international legal argumentation.


Iain Scobbie

Public International Law, University of Manchester; International Law, SOAS, University of London, United Kingdom

International law as an argumentative practice: Constructing the audience

Modern rhetorical theory, exemplified in the work of authors such as Perelman, reacted against a Cartesian world view of systematisation and logical deduction.  Because law is expressed in natural language, propositions are open to interpretation and thus law is not amenable to systematisation as a formal logical system.  Rhetoric analyses methods of argument in which the conclusion is not simply a syllogistically valid deduction from given premises.  Rather the conclusion depends on the appreciation of the relative strengths of the arguments adduced and requires someone to determine which argument is to succeed.  Has the idea of the international rule of law surrendered to the changing judgments of its audience? Objective argument aims at transcending the contingencies inherent in sectional interests, thus gaining the adherence of what Perelman terms the universal audience.  Can the universal audience step in to save the idea of the rule of law from subjectivism and arbitrariness?


Ingo Venzke

Department of International and European Law, University of Amsterdam, Netherlands

Against Interpretative Communities: Why the Need to Find Acceptance is Insufficient to Explain Argumentative Constraints

Especially in international law, the idea has gained increasing current that interpreters are constrained by the need to find acceptance within relevant interpretative communities. Such has been the reaction to the now well-received thesis that the text itself does not constrain the interpreter. But that communities of practice do. In other words, not the text of the law but the practice of lawyers stabilizes the rule of law. While there are certainly a number of advantages to this view, the present paper teases out its limits. In particular, it argues that placing emphasis on the need of interpretations to find acceptance within a community of interpreters paints but

a flat view of international law as an argumentative practice. It cannot account for international law as a normative practice as it has no place for the quality of arguments or for the motives of interlocutors.