Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage
Legal argumentation is usually considered the more formal (or, at least, formalistic) kind of practical argumentation, thanks to the long tradition of “legal syllogism” as its formal instrument, but also to its legal restraint (the formalistic aspect). Yet, in arguments such as those used, for examp...
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| Format: | Article |
| Language: | English |
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The University of Akureyri
2011-03-01
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| Series: | Nordicum-Mediterraneum |
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| Online Access: | http://nome.unak.is/nm-marzo-2012/6-1x/24-articles61/71-rhetorical-strategies-in-legal-argumentation-some-remarks-on-the-recent-decisions-of-the-portuguese-tribunal-constitucional-and-the-italian-corte-costituzionale-on-same-sex-marriage |
| _version_ | 1797332941678837760 |
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| author | Giovanni Damele |
| author_facet | Giovanni Damele |
| author_sort | Giovanni Damele |
| collection | DOAJ |
| description | Legal argumentation is usually considered the more formal (or, at least, formalistic) kind of practical argumentation, thanks to the long tradition of “legal syllogism” as its formal instrument, but also to its legal restraint (the formalistic aspect). Yet, in arguments such as those used, for example, by high courts in their justifications, we may find not only strict formalism and adherence to the letter of the law, but also the attempt to resolve differences of opinion and conflicts of interest, and perhaps also the rhetorical attempt to persuade the legal community, the legislator or even public opinion of the soundness of the court’s decision. But there could be more than that. I think that contemporary theories of legal argumentation have let aside the idea that the analysis of legal argumentations can show the judges' hidden ideological and political positions by resorting to traditional legal arguments. Just as an example, it may be interesting to analyze the justificatory function of argumentations contained in two decisions taken by two constitutional courts, in Italy and in Portugal, on the same question. Why constitutional courts and not, for example, a court of first instance? Constitutional judges, apparently, do not need to persuade anybody: there is no higher judicial authority, and their interpretation of constitutional text is definitive. For this reason, one can assume that strategic argumentation plays little role in the arguments justifying their verdicts. I hope I can show that this assumption may not, fully, reflect the reality. |
| first_indexed | 2024-03-08T07:55:38Z |
| format | Article |
| id | doaj.art-53245c1cfcab4cd09dfba25f587faa22 |
| institution | Directory Open Access Journal |
| issn | 1670-6242 |
| language | English |
| last_indexed | 2024-03-08T07:55:38Z |
| publishDate | 2011-03-01 |
| publisher | The University of Akureyri |
| record_format | Article |
| series | Nordicum-Mediterraneum |
| spelling | doaj.art-53245c1cfcab4cd09dfba25f587faa222024-02-02T13:42:13ZengThe University of AkureyriNordicum-Mediterraneum1670-62422011-03-0161A2Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriageGiovanni DameleLegal argumentation is usually considered the more formal (or, at least, formalistic) kind of practical argumentation, thanks to the long tradition of “legal syllogism” as its formal instrument, but also to its legal restraint (the formalistic aspect). Yet, in arguments such as those used, for example, by high courts in their justifications, we may find not only strict formalism and adherence to the letter of the law, but also the attempt to resolve differences of opinion and conflicts of interest, and perhaps also the rhetorical attempt to persuade the legal community, the legislator or even public opinion of the soundness of the court’s decision. But there could be more than that. I think that contemporary theories of legal argumentation have let aside the idea that the analysis of legal argumentations can show the judges' hidden ideological and political positions by resorting to traditional legal arguments. Just as an example, it may be interesting to analyze the justificatory function of argumentations contained in two decisions taken by two constitutional courts, in Italy and in Portugal, on the same question. Why constitutional courts and not, for example, a court of first instance? Constitutional judges, apparently, do not need to persuade anybody: there is no higher judicial authority, and their interpretation of constitutional text is definitive. For this reason, one can assume that strategic argumentation plays little role in the arguments justifying their verdicts. I hope I can show that this assumption may not, fully, reflect the reality.http://nome.unak.is/nm-marzo-2012/6-1x/24-articles61/71-rhetorical-strategies-in-legal-argumentation-some-remarks-on-the-recent-decisions-of-the-portuguese-tribunal-constitucional-and-the-italian-corte-costituzionale-on-same-sex-marriageconstitutional lawItalylegal argumentationPortugalrhetoricsame-sex marriage |
| spellingShingle | Giovanni Damele Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage Nordicum-Mediterraneum constitutional law Italy legal argumentation Portugal rhetoric same-sex marriage |
| title | Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage |
| title_full | Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage |
| title_fullStr | Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage |
| title_full_unstemmed | Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage |
| title_short | Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage |
| title_sort | rhetorical strategies in legal argumentation some remarks on the recent decisions of the portuguese tribunal constitucional and the italian corte costituzionale on same sex marriage |
| topic | constitutional law Italy legal argumentation Portugal rhetoric same-sex marriage |
| url | http://nome.unak.is/nm-marzo-2012/6-1x/24-articles61/71-rhetorical-strategies-in-legal-argumentation-some-remarks-on-the-recent-decisions-of-the-portuguese-tribunal-constitucional-and-the-italian-corte-costituzionale-on-same-sex-marriage |
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