Giovanni Tuzet

On Legal Inferentialism: Toward a Pragmatics of Semantic Content in Legal Interpretation?

In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication.

Analogy and Interpretation in Legal Argumentation

While restrictive interpretation is justified when “the law says more than it wanted”, extensive interpretation is justified when “the law says less than it wanted”. But extensive interpretation is in tension with the prohibition of reasoning by analogy in criminal law, so we should explain what the difference is between extensive interpretation and analogical reasoning. In some legal systems the latter is prohibited in criminal law (unless it is in favor of the accused) and the former is not, but it is very unclear whether there is a difference between the two and what it might be. Some scholars say that they differ from a theoretical point of view, since the ways they produce their outcomes are different: extensive interpretation claims that a given case falls under a norm obtained by interpreting extensively a given provision; analogical reasoning claims that a gap is filled by arguing analogically from a source case to a target case. Or, to put it differently, with the latter a new norm is created, while with the former the meaning of an existing norm is extended. But the two do not differ from a practical point of view, since their outcomes are the same (the regulation is extended to the case in hand). Is there a way to distinguish them in theory and practice? The paper will deal with this issue discussing a recent Italian case (the “Vatican Radio case”) where the Court of Cassation claimed to argue from extensive interpretation and not from analogy.

What Is Wrong with Legal Realism

Shapiro’s book Legality engages in a difficult and exciting philosophical task: giving an account of what law is and of why it is worth having. His “planning theory of law” addresses the first issue in terms of the so-called social facts thesis and the second in terms of the “moral aim” thesis: law is determined by social facts alone, but it has a moral point, for the aim of legal activity is to remedy some moral deficiencies. Twentieth-century jurisprudential schools divided on such topics: natural law theory was mainly concerned with the value of law and its moral dimension, whereas legal positivism and legal realism were mainly interested in its factual features. Shapiro tries to give a unified picture of it and rejects the realist view because it leaves out of the picture the internal point of view. On this issue, Shapiro follows Hart’s critique of the realist view, but this chapter tries to show that the Hartian picture of legal realism was very simplified, not very charitable and misleading in some respects. One of the misunderstandings is the following: many realist claims were claims about legal knowledge, but they were taken by Hart, and are taken by Shapiro, as claims about legal normativity. In particular, the bad man character does not help us understand whether we ought to comply with legal obligations; it helps us to get knowledge about the law.

Assessment criteria or standards of proof? An effort in clarification

The paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: (1) Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? (2) Why do systems differ as to criteria and standards? (3) How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the functional connection between criteria and standards.

La prova testimoniale

Contemporary epistemology credits testimony with a high value as a source of knowledge, while psychology stresses the biases and errors of lay testimony. The paper addresses this paradoxical situation with respect to lay testimony in legal trials and concludes that a principle of distrust (as opposed to a principle of credulity) governs such evidence in such contexts (or at least in the Italian one as framed by the civil and criminal procedure codes). The reason for this kind of distrust can be found in the interests at stake in such non-ordinary contexts as trials.

Due domande siamesi: natura e funzioni del diritto

Il saggio sostiene che le domande sulla natura del diritto sono strettamente intrecciate a quelle sulle sue funzioni, in modo tale da non poter rispondere alle une senza rispondere alle altre. Lo stesso vale per i singoli istituti di un ordinamento giuridico e, per fornirne un’esemplificazione, considera l’istituto della confisca nel diritto italiano e nella recente giurisprudenza. Ne seguono delle conclusioni metodologiche (atomismo delle domande e olismo delle risposte) e delle considerazioni in merito alla distinzione fra discipline come la teoria generale del diritto e la sociologia giuridica, che andrebbero maggiormente integrate di quanto si usi fare oggi.

On the Absence of Evidence

In this paper, I intend to show that the absence of evidence about a claim is not inferentially inert in legal argumentation. Arguing from ignorance is usually taken to be a fallacy, but it can yield two sorts of justified conclusions in a trial: epistemic ones concerning what is plausibly true, and normative ones concerning what should be taken as true. In the former, the absence of evidence generates an argument from ignorance justified by non-deductive standards. In the latter, the absence of evidence triggers a normative presumption. I also show that in both we should not conflate the absence of evidence with the negative evidence provided by some test or research. Arguments from ignorance depend on the absence of certain evidentiary items, not on the evidence of an absence, even though also the lack of evidence is sometimes probative.

Possiamo dubitare di dubitare

L’articolo sostiene che e possibile dubitare di dubitare e ritiene che la funzione dei dubbi di secondo grado sia quella di stimolare la ricerca in nuove direzioni, in modo da superare i dubbi di primo grado. Tali dubbi possono riguardare sia il conoscere che il credere e in particolare la credenza come disposizione ad agire. Il dubitare stesso puo essere concepito come una credenza parziale (e il dubitare di dubitare come una credenza parziale su una credenza parziale) quando ragioni diverse spingono in direzioni opposte.

Arguing on Facts: Truth, Trials and Adversary Procedures

Today many scholars claim that finding the truth is not among the aims or functions of a trial. What should be done by judges, rather, is to assess the evidence at disposal and make a decision on what is at stake. This line of thought emphasizes the differences between inquiry and advocacy, truth and justice, dialogue in science and conflict in law. One of the reasons presented in favor of this contemporary view is the nature of the adversary systems in law: parties are conceived as “fighters”, and judges as “referees” who do not participate in the collection of the evidence and must avoid any “inquisitorial” procedure in deciding cases. Because of this, it is said, trials do not and cannot aim at truth. In the same spirit, legal argumentation is conceived as a “fight” device that parties use to win the case, not as a dialogical effort for a true representation of what is at stake.

Una teoria coerentista delle finzioni

Why do we sometimes say that a fiction is a good fiction, or an acceptable one, or even a credible one? Are there any criteria that determine our judgment in such senses? The paper takes into consideration the hypothesis that, at least in literary works, coherence is a criterion of fiction assessment. Coherence is not to be identified with logical consistency and is not easily definable. It is something more than mere logical consistency; it is a sort of «making sense» that concerns not only the logical relations between sentences but also their content and their relations to the world (there are forms of internal and external coherence). Such a criterion is checked against some literary and legal fictions, and, although the differences between them must not be minimized, the paper concludes that coherence provides in general an explanation and justification of fictions and of our judgments on them.