Аргументация в праве и морали. Коллективная монография.
The book presents the results of the study of the problem of correctness of justification and effectiveness of beliefs in the legal and moral arguments relating to the field of practical reasoning about actions. The problem of justification and belief in law and morality affects the modeling, evaluation, substantive content and linguistic-speech design of processes and procedures of argumentation specific to law and morality and reflect the current state of research in the field of analysis of argumentation and rational behavior. The set of solutions to this problem covers four aspects: substantive, procedural-legal, procedural and cognitive, and consists in the construction of integrative models of argumentation, summarizing the results of the theory of argumentation, law, ethics, logical and pragmatic theories, artificial intelligence and cognitive science. The proposed solutions to the problem of justification and belief in law and morality are designed to demonstrate how rational agents – participants in legal disputes and moral discussions carry out argumentation in practice, what are the criteria for its evaluation, what is the heuristic and practical value of formal methods of its modeling, what role cognitive science and artificial intelligence play in it. The research results will find application in the development of social e-services (e-democracy, e-justice, etc.), social Informatics will contribute to increasing the availability of legal services, the development of civil society, especially the social responsibility of people and institutions, the consolidation of traditional East European societies moral values, can be used for scientific research and education.
The book discusses the logical foundations, formal models, cognitive mechanisms, pragmatic aspects, as well as the history of the formation of practical arguments in the field of law and morality, presents an analysis of real cases, including resonance (Breivik case, Markin case).
The monograph is addressed to philosophers, lawyers, practicing lawyers, specialists in the field of artificial intelligence, management and management, as well as a wide range of interested readers who want to get acquainted with the features of the structure of reasoning and evaluation of arguments in the field of law and morality, the behavior of rational agents in the conditions of norms, the history of the formation of rules and the tradition of moral and legal reasoning. No special knowledge is required to read the book.
Legal argumentation can be approached from various angles and presented differently in history. Yet some issues accompany it on all stages of its development. This paragraph examines the doctrine of argumentation of the Roman-canon ius commune at the formation period of the Western legal tradition. On the basis of primary and secondary sources the author studies the conceptual foundations of legal argumentation (modi arguendi) in ius commune, its doctrinal origins, its main content, as well as its sphere of application, the stages and the trends of development. The focus is on the three components of medieval legal argumentation (i.e. ancient philosophy, Roman law, Christian canons), its features, the logic of invention, kinds of arguments (topoi), their grouping, presenting order, rules of evaluating and conducting discussions. Also the author singles out three periods of development of modi arguendi and highlights its major trends. The significance and relevance of medieval modi arguendi is evaluated in the conclusion.
Legal argumentation is by its nature a rhetorical, or quasi-logical, argumentation, as it is aimed at persuasion of the audience and the adherence of minds to the position of a rhetor, and it is built on probable, rather than truе, premises and deals not with the deduction of conclusion from the axioms in the manner consistent with the rules of deduction or induction, but with the decision-making, which should be a result of consideration of different view-points. With references to works by Aristotle, Perelman & Olbreacts-tyteca, Vieweg, Alexy and Russian legal scholar Vladimirov, the author identifies the distinctions between the legal argumentation and formal reasoning in logics. By using the ancient doctrine of topoi (commonplaces) and applying it to the analysis of judicial decisions of different countries, she further singles out topoi of legal reasoning as a “seats of arguments”, from which the practicing lawyers may draw the arguments in support of their position or look for possible interpretations of the text of a statute, which would better comply with justification of their legal position in a case they need to argue. Such topoi as maxims of law, letter of law, precedent, legislative intent, ends (aims) of law, best consequences, evolution of a legal norm in the process of social changes, concepts of law and legal doctrines, social and political values, scientific data, social theories, statistics and commonsense. As far as any of them can serve as a source of several claims and warrants in their support, which enable to justify opposite results, the types of arguments, which can be equally justified inside of topoi, are adduced. The final stage of the process of legal reasoning is the balancing exercise, when the conflicting values are weighted against each other, and the final choice is made. This balancing exercise is treated in terms of rhetoric as a process of resolution of rhetorical antinomies. They may be resolved differently in different legal systems and legal cultures, depending upon the epideictic system of the concrete societies and on how these values are built into hierarchies.