Legal Argumentation and Evidence

Douglas Walton is Professor of Philosophy at the University of Winnipeg. He is the author of four other books published by Penn State Press: The Place of Emotion in Argument (1992), Arguments from Ignorance (1995), Appeal to Expert Opinion (1997), and Appeal to Popular Opinion (1998).

Contents



Acknowledgments

Introduction



1. SPECIAL FEATURES OF ARGUMENTATION IN A

LEGAL SYSTEM

Legal Rules and Particular Cases

Interpretation of Statutes and Documents

Stages of a Trial

Civil Law, Criminal Law, and Burden of Proof

Evidence

Relevance and Admissibility

Testimony of Witnesses

Expert Testimony

Examination

Dependence on Precedents



2. FORMS OF ARGUMENT COMMONLY USED IN LAW

Argument from Analogy

Argument from an Established Rule

Argument from Sign and Abductive Argument

Argument from Position to Know

Argument from Verbal Classification

Argument from Commitment

Practical Reasoning

Argument from Personal Attack (Ad Hominem Argument)

The Slippery Slope Argument

Other Important Forms of Argument



3. CIRCUMSTANTIAL EVIDENCE

The McCormick Criterion

The Jewish Classical Law Criterion

Bentham on Circumstantial Evidence

Patterson’s Criterion

Wigmore on Direct Evidence and Autoptic Proference

Wigmore on Circumstantial and Testimonial Evidence

The Hope Head Case

The Five Criteria Summarized

How Useful is the Concept of Circumstantial Evidence?

Logical Difficulties of Circumstantial Evidence



4. PLAUSIBILITY AND PROBABILITY

A Third Type of Reasoning

Plausibility and Probability

Wigmore on Logical Inference and Probative Value

Locke on Plausibility and Degrees of Assent

Bentham on Plausibility and Evidence

Plausibility and Casuistry

Plausible Reasoning in the Ancient World

Carneades’ Theory of Plausibility

Criteria and Applications of Carneades’ Theory

Why the Neglect of Plausible Reasoning?



5. THE DIALECTICAL FRAMEWORK OF LEGAL

ARGUMENTATION

Implicature and Conversational Postulates

Rational Persuasion in the Trial

Normative Models of Argumentation

Persuasion Dialogue

Other Types of Dialogue

Peirastic Dialogue and Extastic Dialogue

Relevance and Dialectical Shifts

The Fair Trial and the Witch-Hunt

A Dialectical Theory of Statutory Interpretation

Argumentation Schemes, Fallacies, and Legal Logic



6. A PLAUSIBILISTIC THEORY OF EVIDENCE

Components of the New Theory

Evidence and Argument

The Probative Function

Ancient Roots of the New Theory

Advantages of The Plausibilistic Theory

Scientific Evidence

Logical and Legal Relevance

Legal Evidence, Credibility, and Plausibility

Expert Testimony as Evidence

Problems and Conclusions



7. RELEVANCE IN PERSUASION DIALOGUE

Persuasion Dialogue

Chaining of Arguments

Rules of Dialogue and Fallacies

The Fallacy of Irrelevant Conclusion

The Method of Argument Extrapolation

Testing an Actual Example

How the Method Should be Applied

Questions Raised

Application to Legal Cases

Arguments and Explanations



8. MULTI-AGENT ARGUMENTATION AND CREDIBILITY

Formal Dialogue Systems in Logic

The Ad Hominem and Ad Verecundiam Fallacies

Labeled Deductive Systems

Multi-Agent Systems

Adding Agents to Formal Dialectical Structures

Evaluating Fallacies and Blunders

How Should ‘Agent’ be Defined in Formal Dialectic?

Dialectical Shifts and Relevance

The Solution to the Problem

Conclusions



9. HOW TO USE THE NEW METHOD

The New Method

Inference Forms and Critical Questions

Arguments Depending on Testimony and Credibility

Verbal Arguments and Critical Questions

The Trial as Persuasion Dialogue

Argument Diagramming

The Formal Structure of Diagramming

Formalizing the New System

The Subtleties of Peirastic Dialogue

The Current Problems with Relevance



Bibliography

Index