The Conference, as tradition, brings together scholars interested in argumentation, judges, lawyers, professors in law. It is intended as a regular forum in which the most current events, as far as the legal domain is considered, will be discussed.

This year the discussion point will be dedicated to the positive law. This notion is required to be deeply rethought by jurists. As a matter of fact, the sources which guarantee the positive law have been being eroded by various phenomenos, such as the loss of normative power of the State (in European Union), the emersion of alternative sources of legal norms or the leading and  normative role of the courts.  Legal theorists and practitioners usually go on taking the positive law for granted, regardless of its justification. The positive law seems to be like an arab phoenix (it is said to be but nobody knows where it is).

The Conference is cosponsored by the School of Advocacy, the Bar of Bolzano and the Bar of Trento; it is promoted by the Giuffrè publishing house and the Department of Legal Sciences in Trento. There is a significant interest and support for continuing this regular conference series.  The CERMEG aims, as usual, to give voice to preminent legal scholars, having a feeling for the demands which come from the practice and being mindful of the classical fundamentals of argumentation.

The schedule is divided into three sessions. The  first two sessions will be dedicated to remarks on “Positive norms and rhetorical argumentation”: keynote speackers will be Stefano Delle Monache (University of Padua), Marino Marinelli (University of Trento), Giuseppe Fiandaca (University of Palermo) and Gabriele Fornasari (University of Trento). In the third and final session, there will be a roundtable about Mario Jori’s book on “Del diritto inesistente. Saggio di metagiurisprudenza descrittiva” (2010). Marco De Cristofaro (University of Padua), Enrico Diciotti (University of Siena), Anna Pintore (University of Cagliari) and Stefano Fuselli (University of Verona) will take part in it.

Further information can be found at this link.

The Centre for Research on Reasoning, Argumentation and Rhetoric (CRRAR) at the University of Windsor is organizing a Summer Institute on Argumentation from May 9 to May 27, 2011. The institute has the dual purpose of offering a course for graduate students who have an interest in reasoning, argumentation, artificial intelligence and cognitive science, as well as an introduction to these topics for post-doctoral students and junior faculty. The Institute and course are under the direction of Professor Marcello Guarini. The course consists in two parts: the first one is taught by Professor Chris Reed (School of Computing, University of Dundee, Scotland) and the second one by Professor Marcello Guarini. Some guest lectures are scheduled (by dr Frank Zanker, dr Paul Thagard, dr Douglas Walton). Serena Tomasi of CERMEG (Italy) is attending the institute as Fellow.

The course is offered around the Ontario Society for the Study of Argumentation (OSSA) Conference, running from May 18-21. The CERMEG will be represented by Federico Puppo, whose paper was successfully selected for presentation. The abstract is available here.

Further details can be found at the link below.

www.uwindsor.ca/ossa/

The seminar focused on different perspectives and approaches to argumentation in a legal context, with special emphasis on judicial reasoning, strategies of arguing and proof procedure.

The main presentation has been held by dr Evelin Feteris, senior lecturer in the Department of Speech Communication Argumentation Theory, University of Amsterdam. She is an internationally recognised scholar in the field of legal argumentation, specialized in analysis and reconstruction of argumentative discourse through the model developed by Van Eemeren & Grootendorst.

The seminar was organized by the Faculty of Law of Verona in collaboration with CERMEG.

The pragma-dialectical theory is usually applied to several different types of argumentative discourse and also for the analysis and evaluation of legal argumentation.

Professor Van Eemeren introduced to the SGET PhD students the pragma-dialectical method of analyzing and evaluating argumentative discourse and the concept of strategic maneuvering.

The lectures were organized by the Doctorate School in collaboration with CERMEG.

The meeting was organized in strong collaboration with Cermeg: it was the first Conference of such kind in Spain.

The proceedings are collected in volume n. 82, Enero-Abril 2011, of the journal Revista cuatrimestral de las Facultades de Derecho y Ciencias Econòmicas y Empresariales, under the title: Hermenèutica jurìdica: sobre el alcance de la interpretaciòn en el derecho (Miguel Grande eds.), ISSN: 1889-7045.

The volume draws together articles from scholars in legal argumentation, philophy of law and interpretation: the Cermeg has a remarkable representation with a total of three articles in the proceedings, precisely:

- F. Puppo: La interpretaciòn en la informàtica jurìdica (pp. 209-218),

- M. Manzin: Interpretaciòn jurìdica y retòrica forense (pp. 241-254),

- F. Zanuso: In claris non fit interpretatio: las ilusiones del normativismo en la crìtica de la hermenèutica (pp. 255-275).

The table of contents is available below in pdf.

The articles mentioned can be downloaded from the website of the journal. Here the link.

0-sumario-82

Within the courses of Philosophy of Law and Legal Ethic, in charge of Proff. J. Almoguera, M. Grande, R.Vega, have been scheduled a few lectures and a seminary on the main issues regarding legal methodology, rhetoric and ethic in the courtrooms.

The task of the lectures and the related activities, which have been organized in the context of Erasmus-Socrates Programme, was mainly didactic: its aim  being to explain to under and post graduated students the Cermeg’s approach to legal reasoning and, particularly, its methodological end ethical outcomes in the legal experience.

In the matter of academic collaboration, it is worthy of note the recent publication in Spanish of the article El orden retòrico y la complejidad de las narraciones procesales: Es posible superar el formalismo y el nihilismo jurìdico? by prof. Maurizio Manzin (volume n. 81, Septiembre-Diciembre 2010, Revista cuatrimestral de las Facultades de Derecho y Ciencias Econòmicas y Empresariales, pp. 87-102). The article is available on line (and for download) at the current link.

“Argulyon” is a cycle of seminars organized by C. Plantin at ICAR - Unité mixte de Recherche “Interactions Corpus Apprentissages Répresentations (Université Lumière Lyon 2 - ENS - CNRS - INRP) which is attracting remarkable amounts of interest and researchers. This session is dedicated to the discussion of argumentative topics. The working languages are English and French.

Three member of Cermeg  partecipate in the seminars. Serena Tomasi introduces the Cermeg’s account on argumentation by proposing some confrontation points with regard to the linguistic perspective.  Maurizio Manzin and Federico Puppo discuss the linguistic approach in the perspective of legal rhetoric, setting out the classical concept of “logos” as both language and logic.

Here you find the full programme of the seminars:

ATELIER ARGUMENTATION À LYON – ARGULYON

CONTRACTUAL LIABILITY. CASES AND METHODS FOR THE DEFENCE

Edited by P.Moro

Milan (Italy): Giuffrè

(language: Italian)

The brand-new Series of Cermeg is called “Legal Rhetoric”: it is a collection of judicial acts expressly devoted to lawyers.

It is not a mere set of forms, it is more. As Aristotle shows, the rhetorical method is not a body of rules a priori, but a procedure which is going to be fit for who is using it in practice and for the specific issue to solve. Drawing upon Aristotle’s thoughts, rhetoric teaches the method and not the results of its application.

With these premises, this essay spells out the principles which lead the jurist to improve his reasoning or to writing his acts in a rhetorical way.

The collection, edited by Paolo Moro, applies the classical method to civil liability and shows the topical interest of classical culture in law for arranging all kinds of judicial acts. The contractual liability of different kinds of operators in social and economic life is one of the topic matter in civil law debate.

Each paper is divided into two parts:

a)      an introduction or a practical explanation of the method for writing a specific judicial act, in accordance with the rhetorical scheme;

b)      an act, drawn by the juridical professional experience  of each author, furnished with notes or key-words.

Acta Methodologica - 5

Series of the Research Centre on Legal Methodology

LEGAL ETHICS AND RHETORIC

Edited by M.Manzin & P.Moro

Milan (Italy): Giuffrè

Is it possible to imagine a dimension of legal ethics not limited by discussions about codes of ethics and their positiveness? Following the thread of legal ethics in order to discover the core of lawyer’s identity is the very ambition of this book, in which different legal expertises and philosophical accounts face the crisis of the contemporary lawyer (and not only of her public image).

Issues like the argumentative nature of legal evidence, the diligence and fairness in trial’s relations, the mediation as conciliation (in civil law matters) as well as the ethics of defense as ethics of the court, the requirement for a rigorous topic in legal interpretation, the rhetorical nature of the cross examination (in penal law matters) are considered from the point of view of possible critical solutions proposed for today’s advocacy by ancient rhetoric. Being convinced that a durable dimension of legal ethics must be supported by deep and precise philosophical reasons and helped by suitable logical and methodological instruments.

ABSTRACTS

Maurizio Manzin

The lawyers as keepers of the trial: the roots of legal ethics

According to Kelsen’s divide between “is” and “ought”, the issue of legal ethics should be limited to the field of “ought” (Sollen). But the very structure of legal reasoning concerns descriptions of the state of affairs as well as normative hypothesis - so it has a mixed nature an antiformalistic legal ethics cannot ignore. Formalist legal positivism is normally focused on the theory of norms and secondarily on the judge, keeping lawyers apart. In a post-positivistic age we need a legal ethics based essentially on the trial and considering the lawyers active participants in the legal reasoning: a legal ethics focused only on the positive ethical code would be largely insufficient. It must be related to the ontology of the trial, in which a rhetorical truth is sought; in this way legal ethics can fulfil itself as a logical method - that of legal rhetorics. All the three fields (ontological, logical and deontological) are strictly connected to each other and make a unique paradigm for the lawyer (here named “O.L.D. model”), rooted in classical thought.

Paolo Moro

Vir bonus dicendi peritus. Ethics for the lawyer of worth

In technology era, the ancient and upright meaning of lawyer’s office has been lost. Should she reflects upon her own professional tradition and identity, she would discover herself as an ‘expert in disputes and argumentation’ and realize how method comes to be as one with ethics. In digital age, Moro claims, it ought to deeply regain in humanism and ethical care. Lawyers might get again in possession of their identity only if they preserve their abiding role of ‘freedom protectors’ and ‘dispute mediators’. Aimed to that is studying and practicing legal rhetoric. Thus, legal expert has to move herself back in being a skilful rhetorician, whose goal is not to merely practice whereas to practice properly, making an accurate studying of the case and arguing dialectically throughout the trial.

Massimo La Torre

Advocacy and rhetoric. Between theory of law and legal ethics

In the current, prevailing paradigm of legal positivism, the key figure in the legal system is sometime the legislator, sometimes the judge and sometimes the jurist as ‘law scientist’. The three of them play a leading role where law is supposed to be fixed as the judicial outcome; lawyers, instead, are not in charge to rule and decide. As law is all about enforcing and applying rules, lawyer is the ‘outsider’, a ‘bad man’ hostile to the system. As part and body of the trial at the same time, advocacy office is irremediably split in two. The ambiguity which follows ensues from rhetoric as eloquence: a persuasive technique aimed to skilfully distort assuming the fiction of reason. The more the lawyer acts as a rhetorician the more he decreases in prestige. Codes of legal ethics feel the effect of this ambivalence as well: its interpretation keeps unsteady from communitarianism and individualism, from a moral conception of lawyers as a whole and a non-moral conception of lawyer as mere counsel for the defence. Furthermore, whereas judge is due to ruling function, not any considerable public charge is acknowledged to lawyer. Although not requested to make any determination, advocacy nevertheless entails upholding rights and principles. It follows that lawyer cannot ‘hide’ beneath any wielded authority: that’s why her service counts as public effect even more than judge’s one. In such domain, placed between public and private offices, actually lays the very last meaning of law and advocacy.

Mario Ricciardi

The advocacy’s crisis of identity and legal ethics

In order to understand the disorientation liberal professionals and lawyers in particular are now getting through, we must recognize (in accordance with Joachim Fest) that the middle class’way of life in the background which moulds the way of conceiving professions in European society since 1850’s. Going back to this model means therefore to find and reconstruct the lost identity of advocacy. From such historical and sociological perspective, Ricciardi investigates the evolution of lawyers’ status occurred between the last two centuries, consisting in the transformation of ‘gentleman professional’ into ‘businessman’ (after the dissolution of middle class’ way of life). The lawyer as ‘role model’, acting on her own, inherited best practice, has faded away turning into a mere ’service provider’; in big cities, law firms have step by step replaced small offices. Professional ethics changed as a consequence: the binding force of the code of ethics has been interpreted as arising from (and applying as) positive norms rather than moral praxis. On this basis, the Author eventually tries to justify the lawyers’ professional ethics on standards of utilitarianism as implied in Rawls’ theory of justice.

Federico Puppo

Legal ethics in the age of decodification: an outlook to the Italian situation

The aim of the article is to critically examine the current view of legal ethics, as deeply influenced and distorted by legal positivism assumptions. The code of legal ethics having lost its original behavioral-guide status it has been turned into a system of positive, enforced rules. The Author gets through the how and why of its present interpretation, pointing out implicit and explicit contradictions, beliefs and implications. He maintains it ought to ground the concept of law and judicial ethics on alternative, more proper basis. An approach ispired by Classical philosophy shows how ontological, logical and deontological standards are all interconnected in the lawyer’s activity and thus, he explains, provides advocacy with new path to gain dignity and enrich identity.

Aurelio Gentili

Legal rhetoric and theories of evidence in civil trial

Examining how rhetoric and the theories of legal evidence apply in lawsuit, Gentili points out that demonstrative theories themselves are actually argumentative ones. Namely, they come from the adversarial nature of judicial speech and from the conception of the trial as specifically aimed to mediate conflicts. Demonstrative theory of evidence is reconsidered in its historical backgrounds and presented, for 10 reasons, eventually inapplicable to legal proceedings. The Author remembers that any scientific approach assuming truth as a description of reality has been in crisis for a long time. Nevertheless, argumentative aspects about evidence require proper, rational warrants not to avoid the question of uncertainty. In Author’s viewpoint, legal truth is to be found out throughout argumentation: and legal evidence, regulated and performed by the due process, shows how rhetoric is rather meant to mediate disputes, than to ascertain material truth.

Teresa Pasquino

Diligence and fairness in trial’s relations: some implications in civil law

According to their own code of ethics, in their relations with judge, clients and colleagues, lawyers’ very first duty is to act upon and fairness, and ethical prescriptions appear to be all ascribable to these guidelines. The Author explains how these general prescriptions have come to count as civil liability standards of law practice, regarding either breach of contract or tort. When it comes to judges’ ethics, according to the d.lgs. 109/2006, the same kind of constraints seem to hang over them in determining breaking of regulations. Probity and diligence, Pasquino explains in the second part of her essay, insist on judges either in or out the performance of their duties. The article examines Italian legislation about courts’ liability for intentional wrongdoing or gross negligence, due to failures to comply (l. 117/1998), and State’s no-fault liability (for pecuniary and non pecuniary loss) due to unreasonable length of trial duration (l. 89/2001).

Federico Reggio

Mediation as alternative to trial in civil matters. Deontological implications and Methodological profiles

Mediation in civil law matters has recently become quite a topical argument in the Italian debate, now that a specific legislation has been introduced as a complementary part of the civil procedural law reform. According to the new legal frame, in a wide range of legal controversies mediation will soon become a mandatory phase to be attempted prior to starting a trial. The research of a conciliation between conflicting parts, able to settle their issue outside the justice courts, will therefore assume an independent and specific role in the field of civil justice. For such a reason, legal professions are challenged by taking confidence with a tool whose ratio and methodology might emerge as remarkably new to their practice: the cooperative, participatory and mildly informal structure of mediation reveals in facts several differences with the traditional procedures and ‘logics’ of dispute resolution. The following essay takes into account some of the main deontological implications of mediation in civil matters, showing how methodological issues are strictly bound to them.

Fausto B. Giunta

Legal ethics and rhetoric: lawyers’ ethics and court’s ethics

Rhetoric and legal ethics is an expression that literally refers to lawyer’s moral behaviour in the use of eloquence. Assuming that ’speaking well’ is ‘behaving well’, the morality of rhetoric concerns, as well as the lawyer, the public prosecutor and the judge. But in what does it consist if existing) the specific ethics of public prosecutor? In the same way, the judge, normally a silent witness in adversary trial, is called for holding arguments with rhetorical devices: in direct examination and adjudication opinion, which is eventually addressed to the public eye, the judge is in fact expected to reason and argue properly. As trial is all about inter partes and ultra partes communication, do any ethical bounds apply to the public prosecutor and the judge? Except for neutrality, impartiality and fairness burdens, are judges constrained by any ethical principles? This article is aimed to extend consideration for rhetoric and ethics to all the participants of the trial. For lawyer plays in proceedings a ‘partial’ role, she is not required to account for her professional options; whereas, the Author holds, on judge’s and public prosecutor’s options (as they come super partes and impartial) it’s time to draw more attention.

Ombretta Di Giovine

Some remarks on interpretation, rhetoric and legal ethics in criminal law

Investigating the relationship between ethics and interpretation in criminal law, the Author starts from some well-known positions about linguistic philosophy in analytical and hermeneutical accounts. In particular, she underlines the importance of both pragmatic context (i. e. how the use of words and sentences affects their meaning) and the ‘prior understanding’ of the interpreter. She excludes the idea of legal reasoning as reducible to the schemes of formal logic, showing the evolution of legal interpretation (also in criminal law) into the ancient sciences of dialectics and rhetoric. However, in order to limit the unavoidable moments of creativity in the interpretive process, she looks at the lesson of rhetoric, which consists in the search for premises shared by the interlocutors. From this perspective, she proposes the study and developing in criminal law of a legal topic based on general types of cases able to reconcile conflicting needs, to be found between legislative linguistic statements and legal interpretation.

Ettore Randazzo

Legal ethics and rhetorical method

Lawyer’s code of ethics applies to law practice as a professional method, rather than as a goal to fulfill. The duties of a lawyer in adversary proceedings, the Author maintains, are tightly connected to the value of procedural law. Just like procedural rules are aimed at ensuring due process and fairness, ethics are indeed the fundamentals of lawyer’s professionalism. It is in the procedural law that the whole legal system displays its juridical heritage: substantive norms may be well or badly applied according to the probity and fairness of procedural rules; so, no justice is achievable out of the due process of law. Randazzo claims the linking between lawyer’s ethics and procedural law belongs to rhetoric. In the contest between prosecution and defense, rhetorical method helps the lawyer to present grounds to the court in order to obtain favorable outcome. That’s why in criminal proceedings, for example, the lawyer’s duty to serve his client and raise defense is rather performed by cross examination than closing address.

Amedeo G. Conte

Revenge. Constitutivity and incommensurability in Antonio Pigliaru’s philosophy

A tribute to A. Pigliaru written by A.G. Conte on behalf of the Research Centre on Legal Methodology

1. If guaranteed by the principle of non-contradiction, the rhetorical conclusions are as consistent as the formal or empirical ones.

2. Argumentative persuasion is logical, not psychological.

3. ‘Probable’ premises can lead to ‘certain’ conclusions.

4. No more divide between the “two cultures” (science and the humanities): they are strictly connected.

5. Rhetoric is specially suitable for concrete and operative contexts.

6. Rhetoric is functional to the European lawyer’s identity.

7. Rhetoric is a resource of freedom and rationality for the 3rd Millenium, against both dogmatism and radical skepticism.