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).

“In this book Douglas Walton builds on his earlier research and shows how it has application to many of the difficult questions that arise in legal reasoning. He brings a dialectical theory of argumentation as well as a theory of plausible reasoning to bear on the traditional problems of legal evidence. Legal Argumentation and Evidence is an original and important contribution not only to legal reasoning but also to the development of argumentation theory, critical thinking, and reasoning in general. It will be of interest to legal scholars but also to argumentation and reasoning theorists who want to keep abreast of the most recent developments in the field.”—Hans V. Hansen, University of Windsor

• ContentsAcknowledgments Introduction 1. SPECIAL FEATURES OF ARGUMENTATION IN ALEGAL 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 ReasoningPlausibility 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 WorldCarneades’ Theory of Plausibility Criteria and Applications of Carneades’ Theory Why the Neglect of Plausible Reasoning? 5. THE DIALECTICAL FRAMEWORK OF LEGALARGUMENTATION 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 EvidenceLogical 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 FallaciesLabeled 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