Cermeg

Milan (Italy): Giuffrè 2006 

 

 

 

The conventional logical operations for the interpretation  of legal and factual propositions relevant to law presuppose a level of certainty comparable to the natural sciences. Nevertheless, lawyers and judges are hampered by the chronic problem of vagueness. In this 2nd issue of AM Series the problem of vagueness is addressed by leading scholars of analytical jurisprudence as well as philosophers of law interested in classical methaphysics. The plethora of convergences between those two perspectives are both unespected and promising.

In the two parts in which this book is divided, authors coming from anlytical or linguistic legal philosophy (Part One) and others “continental” (Part Two) discuss about vagueness in legal propositions. The dialogue itself is a good piece of news in italian legal philosophy’s debate, once characterized by incommunicability between the two mainstreams. Besides it is to notice that both conclude in a similar way (although variously argumentated): the implication of vague terms in well determined contexts of legal reasoning is neither illogic nor semantically wrong; vague terms can be used in logical argumentations to obtain unambiguous conclusions. 

ABSTRACTS

MAURIZIO MANZIN 

Towards a Global Perspective?

In the two parts in which this book is divided, authors coming from anlytical or linguistic legal philosophy (Part One) and others basically «continental» (Part Two), linked by Parreson’s argumentative theory,discuss about vagueness in legal propositions. The dialogue itself is agood piece of news in Italian legal philosophy’s debate, once characterizedby incommunicability between the two  ainstreams. Besides it is to notice that both conclude in a similar way (although variously argumentated):the implication of vague terms in well determined contexts of legal reasoning is neither illogic nor semantically wrong; vague terms can be used in logical argumentations to obtain unambiguous conclusions.

 

PAOLO SOMMAGGIO

A Concrete Vagueness

The red thread that join together this collection of essays unwinds in the following brief abstract; it starts from a Claudio Luzzati’s critical analysis of the notion of vagueness and then Mario Jori tries to establish a link between vagueness and science, thinking about the rethorical question in the trial. Enrico Diciotti just lays the conceptual bases of the rethorical theory of law, also examining the notion of truth in law; Vittorio Villa reflects on the question of truth in law and on the weight of a rethorical theory as semantic specification. A traditional interpretative matter leads Vito Velluzzi to analyze the existing relationship between extensive interpretation, integration by analogy and integration not by analogy. Dennis Patterson too believes that the forms of legal argumentation constitute the grammar of legal justification and shows its possible uses with particular reference to the matter of truth. Studying in detail the matter Maurizio Manzin shows how the idea of a rethorical truth, one able to dissolve the oppositions in a given context, could be well considered as an heritage of the trial and of what is usually defined as ‘legal truth’. Then Federico Puppo debates the question of truth by the analysis of some aspects of formal logic. The argument of Adelino Cattani’s essay is about the relation between science and rethoric. Last but not least, Claudio Sarra reflects upon how vagueness could be considered as a sign of the metaphorical aspect of language and how metaphor has to be considered in legal circle.

 

CLAUDIO LUZZATI

Back to the Sorites

This paper tries to examine the problem of the sorites from the standpoint of the analytic tradition. Such a survey, in particular, contrasts an ontological approach with an epistemic approach, showing the undeniable importance of the nominalist theory of definition. The present discussion has a noteworthy bearing also on the framing of legal language and on statutory interpretation, as open textured law is expected to meet the demands of a perpetually changing reality. 

 

MARIO JORI

Some Marginal Notes on the Notions of Trial, Science and Vagueness in a Rhetoric of Law

This paper proposes to say something about three themes: the cognitive value of the empirical sciences, the relationship between legal rules and rhetoric in legal trials, the concept of vagueness. I conclude that legal positivism must acknowledge the fact that law is something that we do, is a common activity, there its basic choices including the basic cognitive choices of jurists, cannot be neutral and scientific, but at best public and explicitly justified choices.

 

ENRICO DICIOTTI

Rule of Recognition, Legal Controversies and Rhetoric

The aim of the present essay is to show that a rhetorical conception of law, according to which law is a set of resources for the rhetorical discourse of judges and lawyers, is a reasonable development of a theory of law as a social practice, that is the theory that law depends on a tacit agreement which forms the ground for the activity of judges and lawyers. This theory of law is first expounded, making clear that the «agreement» which forms the ground for judicial activity is to be conceived as an agreement on criteria of validity and criteria of interpretation. Secondly, controversies about validity and controversies about interpretation are examined, pointing out that these controversies seem to be caused by a disagreement on criteria of validity and criteria of interpretation. Thirdly, since the idea that judges and lawyers agree on criteria of validity and interpretation is in contradiction with the idea that legal controversies show that judges and lawyers disagree on these criteria, some ways to solve this contradiction are discussed: the conclusion is that the more reasonable way is given by rhetoric. Finally, after a representation of law as a set of resources for the rhetorical discourse of judges and lawyers, two issues are approached: why legal discourse has the characters of rhetorical discourse, and whether or not there is a «rhetorical truth» suitable for legal discourse.

 

VITTORIO VILLA

Legal Interpretation between Theories of Meaning and Theories of Truth

The paper is divided in two parts. In the first part, moving from legal-positivistic premises, I develop some observations on the relationship between legal interpretation and legal theory, and between truth and legal reasoning. On both points I use Francesco Cavalla’s non-positivistic legal thinking as a good point of reference for a fruitful discussion. I argue, in full agreement with Cavalla, that legal reasoning represents today the focal point of legal theory, and explain also the reasons why it is so. But I also share with Cavalla an enlarged conception of knowledge, built on constructivist premises. There is, nevertheless, a significant point of disagreement, concerning Cavalla’s notion of truth seen as a necessary aim for legal reasoning. I hold that Cavalla’s thesis is both internally incoherent and externally too strong; I suggest that it would be better, at least in legal field, to «steer a middle course» between truth and persuasion. In the second part of the paper, I try to outline, very briefly, some features of what I call a pragmatically oriented theory of legal interpretation. Even in this section the point of departure is constituted by Cavalla’s legal thinking, in this case by Cavalla’s thesis that legal reasoning could be reconstructed as a process of progressive specification: from some generic - factual and normative - assumptions to a concrete judicial conclusion. I try to develop this suggestion from the specific point of view of theory of legal interpretation, which in my view represents the structural-semantical part of more general theory of legal reasoning. From this perspective, I assume that if we move from a static to a dynamic theory of meaning, it would be possible to show, without contradictions, that genuine interpretation is a full mixture of discovery and creation.

 

VITO VELLUZZI

The Distinction between Legal Analogy and Extensive Interpretation

In this paper I try to explain in which way the distinction between legal analogy and extensive interpretation of norms is both possibile and useful. Following this attempt I take into account, from a critical point of view, some opinions about the topic and so doing I propose to distinguish among: extensive interpretation, analogical integration and other shapes of legal integration. 

 

DENNIS PATTERSON

Law and Argument

The task of philosophy is to clarify the object of investigation. In legal theory, the practice of law the primary focus of attention. In this article, I make the case for understanding the practice of law primarily as a field of argument. To that end, I explain and illustrate the forms of argument that are the grammar of legal justification in the Anglo- American system. In addition to describing the forms of legal argument, I discuss the role of interpretation of law in the Anglo-American system. I use the later work of Wittgenstein to make the point that interpretation is a second-order activity within the practice of law.  

 

MAURIZIO MANZIN

Justice, Argumentation and Truth in Legal Reasoning: in Memory of E. Opocher

Enrico Opocher, one of the most important Italian legal philosophers in the last century, died on March 3, 2004. For almost four decades, he was Director of the prestigious Insitute of Philosophy of Law and Comparative Law in the University of Padua. Together with Norberto Bobbio, Sergio Cotta, Uberto Scarpelli and few others, he represented a generation as well as a season of deep renewal in Italian philosophy of law and politics. In the legal thought of the postwar period, Opocher became the point of reference for all those who neither wanted to join the old tradition (substantially neo-scholastic) of natural law thinking, nor believed in Kelsen’s triumphant legalistic normativism. My contribution is devoted to focusing on that part of Opocher’s thought in which the Paduan philosopher defines «justice» as «a value which makes the law count» (in the sense of its «duration») and puts in contact this peculiar concept of justice with the problem of the verification of truth in trials and lawsuits. My thesis comes from the analysis of the Opocher’s conception of «judicial truth» as a truth obtained by reflecting facts which are relevant to norms. In the course of my analysis, I criticize all interpretations which reduce judicial truth-seeking to the empirical method. My aim is to move it from the level of mere factual description to the one of «logical demonstration according to the circumstances». This movement from the descriptive niveau to the argumentative one, will be justified through the adoption of the perspective of classical rethorics, based on Aristotle and Cicero, which shows how judicial truth - intended in the sense of entymematic demonstration - was much more coherent with the very idea of Opocher’s conception of justice.  

 

FEDERICO PUPPO

The Problem of Truth in Judicial Argumentation

The paper, through a logical approach, concentrates the attention on the problem of truth in the circle of law, in particular in the circle of judicial argumentation. We’ll move from a brief illustration of some logical theorizations of the 20th century, in particular Gödel’s and Tarski’s theorems: at first, we’ll focus our attention on the mendacious’ paradox (which is on the base of those), pointing out the alethical repercussions; then, it will be explained the importance of these theories for a discussions about the presence of truth in the judicial circle. Circle which is characterized by a degree of vagueness, inevitable anyway, due at first to the necessary use of natural language. So vagueness, then lack of precision, which (as demonstrated by the story of formal logic) is not possible to eliminate from any field of knowledge, neither from the fields explicitly thought for this aim. The question is very important to suggest in which way is possible to speak of truth in the field of rhetoric and judicial argumentation, so coming to dispel the opinions by which, in those contests, is not possible to retain the presence of truth. Truly, it’s possible to think that it’s not only possible, but instead necessary, to speak of truth in that fields, even though according to a particular, yet undeniable, meaning of truth: maybe the same it is possible to read, as filigree, in the reflections on formal logic. Briefly, it will possible to uphold that the truth shows itself in the classical terms of a continuous allusive research, without the possibility of retaining it in modern, general and exhaustive terms; in this recognizing as the truth should shown itself in the iper-contextual field of experience, the judicial one in particular.

 

ADELINO CATTANI

Argumentation and Demonstration in Science

The opposition logic/rhetoric represents a fundamental cultural opposition, that divides a family of ideas like truth, science, certainty, reality, demonstration (which logic is identified with) from falsehood, opinion, plausibility, appearance, argumentation (which rhetoric is associated with). Rhetoric has been charged with many misdeeds, but the idea that rhetoric has social, methodological and cognitive relevance has become an historical and descriptive fact. Harvey’s revolution is an impressive example - taken from the history of science - of the epistemic function of rhetoric. Harvey’s proof of blood circulation seems an argumentation rather than a demonstration, an invention rather than a discovery and the genesis, the justification and the acceptance of his theory testify that rhetoric is required also where a proof is possible.

 

CLAUDIO SARRA

Metaphor and Law

Surely, the most important novelty in contemporary juridical methodology is the attention given to the problem of argumentation and the rediscovery of the classical aristotelian meaning of rhetoric.Actually, this phenomenon has followed the rich discussions of the 20th century about the foundation of logic, the theory of meaning, and the powers of language in talking about the world. In particular, during the Thirties from the same core of the Neo positivistic discussions about meaning a perspective emerged which has become the reference point of all the following studies on metaphor. Curiously enough, it was Ivor Armstrong Richards, once a champion of emotivism, in a short work entitled The philosophy of rhetoric, who showed that the problem of meaning is strictly entrenched with that of rhetoric and that the connection must be found in the nature of metaphor. In so doing, he established the basis for a new consideration of the role of metaphorical processes in thinking and in communication which gave birth to an enormous interdisciplinary literature involving philosophers, linguisticians as well as epistemologists. The strange fact is that theorists of law have shown a great interest in both sides of the question that is the problem of meaning and that of argumentation (and, most recently, rhetoric) but almost no interest at all in metaphorical processes. This lack of consideration has brought the result of an uncritical adoption of specific theories of metaphor (expecially the so called «theory of substitution») in dealing with the juridical language which is rich of metaphors as every other kind of language. The aim of this paper is to show that this approach to language in law is incomplete because it ignores some important philosophical specific issues which have risen from the general debate.