Page 251 - Gabrijela Kišiček and Igor Ž. Žagar (eds.), What do we know about the world? Rhetorical and argumentative perspectives, Digital Library, Educational Research Institute, Ljubljana 2013
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ing Judges Seriously: 251
Argumentation and Rhetoric
in Legal Decisions
Maurizio Manzin, Research Centre on Legal
Methodology (CERMEG), University of Trento
Summary
Logical evidence in legal reasoning is one of the most important criteria for evaluat-
ing the soundness and legal congruence of Courts’ decisions. In Italy such a princi-
ple has been fixed in art. 360.1.5 CPC (the Italian Civil Procedure Code), art. 606.1.e
CPP (the Italian Criminal Procedure Code) and by a number of judgments by the
Supreme Court. Logical proof in Courts’ opinions is usually related to the paradigm
of “legal syllogism”: a practical syllogism whose major premise is given by the statute
law and whose minor one is given by the facts under judgment. In this article I argue
that the premises of legal syllogisms are not precisely given, but rather built, thanks
to an linked process of (rhetorical) argumentation. Such process can be divided into
gradual steps, each of them logically reliable: my aim is to outline a preliminary de-
scription of these phases as capable of being conceptualized and improved upon by
the judge and to furnish a reliable scheme for Supreme Court judges, allowing them
to check the logical consistency of lower Courts’ opinions. My aim is to provide law-
yers and prosecutors with some recommendations, which may help them to achieve
effective argumentation.
Key words: legal argumentation, legal language, legal reasoning, legal syllogism, rhet-
oric
W1. Logic and the Law in the Main Italian Legal Sources
hat does logic have to do with legal decisions? Answering this
question implies describing the nature of legal reasoning, be-
cause we need to establish whether the reliability of the deci-
sions in trials depends upon some formal schemes of deduction or if it
concerns other modalities of evidence.
Argumentation and Rhetoric
in Legal Decisions
Maurizio Manzin, Research Centre on Legal
Methodology (CERMEG), University of Trento
Summary
Logical evidence in legal reasoning is one of the most important criteria for evaluat-
ing the soundness and legal congruence of Courts’ decisions. In Italy such a princi-
ple has been fixed in art. 360.1.5 CPC (the Italian Civil Procedure Code), art. 606.1.e
CPP (the Italian Criminal Procedure Code) and by a number of judgments by the
Supreme Court. Logical proof in Courts’ opinions is usually related to the paradigm
of “legal syllogism”: a practical syllogism whose major premise is given by the statute
law and whose minor one is given by the facts under judgment. In this article I argue
that the premises of legal syllogisms are not precisely given, but rather built, thanks
to an linked process of (rhetorical) argumentation. Such process can be divided into
gradual steps, each of them logically reliable: my aim is to outline a preliminary de-
scription of these phases as capable of being conceptualized and improved upon by
the judge and to furnish a reliable scheme for Supreme Court judges, allowing them
to check the logical consistency of lower Courts’ opinions. My aim is to provide law-
yers and prosecutors with some recommendations, which may help them to achieve
effective argumentation.
Key words: legal argumentation, legal language, legal reasoning, legal syllogism, rhet-
oric
W1. Logic and the Law in the Main Italian Legal Sources
hat does logic have to do with legal decisions? Answering this
question implies describing the nature of legal reasoning, be-
cause we need to establish whether the reliability of the deci-
sions in trials depends upon some formal schemes of deduction or if it
concerns other modalities of evidence.
