Reasoning by Consequences: Applying Different Argumentation Structures to the Analysis of Consequentialist Reasoning in
Out of the different theoretical proposals involved in setting directives and constructing models for rationally controlling judicial decisions, some proposals pay particular attention to consequentialist arguments. This paper analyses the diverse approac
- PDF / 223,954 Bytes
- 19 Pages / 439.36 x 666.15 pts Page_size
- 52 Downloads / 206 Views
Reasoning by Consequences: Applying Different Argumentation Structures to the Analysis of Consequentialist Reasoning in Judicial Decisions Flavia Carbonell
1.1 Introduction Theories of legal argumentation, as many scholars point out, arise in legal theory as an echo of the argumentative turn in philosophy of language and as a middle way between the idea of a mechanistic judge and an arbitrary judge with absolute discretion. These theories propose a diverse range of criteria both for guaranteeing rationality and reasonableness of legal decisions – especially judicial ones – and for enabling intersubjective scrutiny or public control on the process of adjudication (Garc´ıa Amado 1986:152–154). Among these criteria, one that has received special attention is the argument from consequences, also called pragmatic argument or consequentialist reasoning. This argument is generally used in the context of judicial hard cases – that is, when problems of interpretation, relevance, classification or proof arise, according to MacCormick’s classification1 – where judges have to justify their decisions using different types of argument and where the efforts are directed at reinforcing the chain of arguments. The theoretical proposals concerned with the argument from consequences consider diverse elements and variables that are necessary for assuring the correct, strong and sound construction of this argument and its proper use. Even if consequentialist reasoning is not a new technique in legal argumentation, its use in justifying legal decisions, particularly judicial decisions, is not exempt from criticisms, nor has it had a homogenous reception within legal theory and judicial practice. The criticisms refer to different problematic aspects of consequentialist
1
The first two of these problems have to do with the major premise (law), and the others with the minor premise (facts). See MacCormick (1997:65–72, 87–97).
F. Carbonell () Faculty of Law, University Alberto Hurtado, Santiago, Chile e-mail: [email protected] C. Dahlman and E. Feteris (eds.), Legal Argumentation Theory: Cross-Disciplinary Perspectives, Law and Philosophy Library 102, DOI 10.1007/978-94-007-4670-1 1, © Springer ScienceCBusiness Media Dordrecht 2013
1
2
F. Carbonell
arguments, such as insufficiently backing the prediction of future consequences, the extension of the consequences to be considered, proof of the causal relation between an act and its foreseen consequences, the parameters to evaluate or assess consequences against other values, interest or goods, and the question for what or for whom are the consequences favourable or unfavourable, among others. In the legal sphere we can add questioning about the legitimacy of judges incorporating extralegal consequences as reasons for deciding in one way or another and problems of excessive judicial discretion and weak accountability mechanisms when these sorts of arguments are at stake.2 This paper will not discuss all of these issues.3 Thus, i.e., I will not develop at large the issue of whethe
Data Loading...
