Harm Kloosterhuis

Analogy argumentation in law: A dialectical perspective

In this paper I investigate the similarities betweenthe dialectical procedure in the pragma-dialecticaltheory and dialectical procedures in AI and Law. I dothis by focusing on one specific type of reasoning inlaw: analogy argumentation. I will argue that analogyargumentation is not only a heuristic forfinding new premises, but also a part of thejustification of legal decisions. The relevantcriteria for the evaluation of analogy argumentationare not to be found at the logical level of inference,but at the procedural level of the discussion. I willproceed as follows. I start with an outline ofPrakkens theory of argumentation frameworks andprocedural models. Then, I will discuss Peczeniksanalysis of analogy argumentation and try to combineit with the descriptive-normative research ofMacCormick and Summers. Finally, I propose asystematization of the criteria for the evaluation ofanalogy argumentation within the framework of apragma-dialectical notion of an argumentation scheme.

The Normative Reconstruction of Analogy Argumentation in Judical Decisions: a Pragma-Dialectical Perspective

In this paper I try to describe, analyse and explain the elements of analogy-argumentation advanced in the justification of legal decisions, to explore the criteria for the assessment of this type of argumentation, to relate that to the general theory of law and to do all that in the framework of the pragma-dialectical approach to argumentation.