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Fabrizio Macagno* and Douglas Walton
Arguments of statutory interpretation
and argumentation schemes
DOI 10.1515/ijld-2017-0002
Abstract: In this paper it is shown how certain defeasible argumentation
schemes can be used to represent the logical structure of the most common
types of argument used for statutory interpretation both in civil and common
law. The method is based on an argumentation structure in which the conclu-
sion, namely, the meaning attributed to a legal source, is modeled as a claim
that needs that is be supported by pro and con defeasible arguments. The
defeasible nature of each scheme is shown by means of critical questions,
which identify the default conditions for the accepting interpretative arguments
and provide a method for evaluating a given argument as weak or strong.
Keywords: arguments, statutory interpretation, argumentation schemes,
defeasible reasoning, pragmatics
Argumentation is now widely accepted as a useful tool to assist with the under-
standing and interpretation of the law (MacCormick 1995; Patterson 2004;
Perelman 1976, 1980). When the understanding of a legal concept is controver-
sial, we need to support the interpretation that is presented as the “best”one by
means of explicit presumptive arguments (Aalto-Heinilä 2016; Dascal and
Wróblewski 1988; Atlas and Levinson 1981; Macagno and Capone 2016;
Macagno 2012; Slocum 2015: 213). Traditionally, the reasoning underlying the
reconstruction of the meaning of a statement has usually been represented in
legal theory by means of the canons of interpretation, which the work of
Viehweg (1953) connected to the ancient theory of topics (Chiassoni et al.
2016; Kreuzbauer 2008).
The purpose of this study is to investigate and classify the structure of the
generic arguments used in statutory interpretation, starting from the logical
analysis of interpretive arguments provided in (Macagno et al. 2014; Walton
et al. 2016). The theoretical framework proposed is based on the models of
*Corresponding author: Fabrizio Macagno, ArgLab-Instituto de Filosofia da Nova (IFILNOVA),
Universidade Nova de Lisboa, Lisbon, Portugal, E-mail: fabrizio.macagno@fcsh.unl.pt
Douglas Walton, CRRAR, University of Windsor, Windsor, Canada,
E-mail: waltoncrrar@gmail.com
Intl J Legal Discourse 2017; 2(1): 47–83
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interpretation advanced in legal theory and on the analysis and classification of
arguments used in argumentation theory. The structure of legal arguments set
out by Tarello (1980), for interpretation in civil law, and the ones used in
common law (MacCormick 1995; MacCormick and Summers 1991) will be recon-
structed using argumentation schemes as abstract patterns of reasoning (Walton
et al. 2008). By means of a series of examples, we will discuss how to classify
these schemes, how to apply them to cases, and how to use them to bring to
light the defeasibility conditions and inferential structures of interpretive
arguments.
1 Interpretation and its arguments
The activity of deliberative interpretation (interpretation in the strict sense,
distinct from the broader concept of interpretation developed by Guastini 2011;
Tarello 1980) presupposes a doubt, i. e. an implicit or explicit conflict of opi-
nions, concerning the meaning of a word, a sentence or a text (Patterson 2004;
Slocum 2015). It starts when no prima facie understanding (Dascal and
Wróblewski 1988) is obtained directly, or when multiple incompatible prima
facie meanings are provided, or also when the prima facie meaning fails to
immediately satisfy the concerns of the interpreter, so that doubts are raised
and need to be addressed (Kennedy 2007: 303–304; Dascal and Wróblewski
1988: 204). Following the account of Tarello and Guastini, we refer to the rule,
which is the result an interpretative process, as the “meaning”of a statement
of law.
1
We can then distinguish the following objects we are dealing with:
–Source-statements: Sentences contained in legal sources, meant to express
legal rules;
–Prima facie understanding of a source-statement: The rule, if any, that in a
certain socio-linguistic context is attributed by default to the source state-
ment (and the activity of grasping such a rule);
–Interpretative statements: A statement affirming that a source-statement has
a certain meaning (expresses a certain rule), made to overcome a doubt on
its understanding (to select this one, among other possible meanings of the
same source);
1Interpretation reduces the vagueness of the statements of law, identifying the specific cases
that are governed by such statements of law (Guastini 2011: 18). On this view, the “meaning”
corresponds to both Sinn and Bedeutung (Guastini 2011: 6).
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–Interpretation: The rule, which is attributed to a source-statement, which
amounts to an answer to a doubt on its understanding (and the activity of
making and supporting such statement);
–Arguments of interpretation: The arguments provided to support a particular
interpretation of a source-statement.
From an argumentation perspective, interpretation can be distinguished
from prima facie understanding based on the processes of reasoning involved.
In prima facie understanding, the passage from a statement of law to the rule it
expresses is grounded on an unchallenged presumptive meaning (Levinson
2000; Capone 2011; Jaszczolt 2005), namely the default explanation of the
meaning of a word or sentence according to shared linguistic-cultural conven-
tions/practices (Hutton 2009: 72–73). Interpretation, in contrast, is grounded on
a more complex type of reasoning, presumptive and systematic in nature, which
can be represented using various types of patterns.
Walton, Macagno, and Sartor (Walton et al. 2014; Macagno et al. 2014)
compiled a list of eleven interpretive arguments identified by MacCormick and
Summers (MacCormick and Summers 1991; MacCormick 1995). Below each type
of argument recognized in that prior list is explained in a condensed manner to
give the reader some idea of each of them as a distinct form of argumentation.
1. Argument from ordinary meaning. If a statutory provision can be interpreted
according to the meaning that a native speaker of a given language would
ascribe to it, then it should be interpreted in this way, unless there is a
reason to the contrary.
2. Argument from technical meaning. If a technical term appears within a
statutory provision, then such a technical term should to be interpreted
considering its technical meaning.
3. Argument from contextual harmonization. If a term is part of a statute or set
of statutes, then it should be interpreted in line with the whole statute or set.
4. Argument from precedent. If a term has been previously interpreted in
a certain fashion, then it should be interpreted to fit that previous
interpretation.
5. Argument from analogy. If a term is analogous to similar provisions of other
statutes, then it should be interpreted to preserve the similarity of meaning.
6. Argument from a legal concept. A term should be interpreted in line with
the way it has been previously recognized and doctrinally elaborated in law.
7. Argument from general principles. A term should be interpreted in a way
that is most in conformity with these general legal principles already
established.
Statutory interpretation and argumentation schemes 49
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8. Argument from history. A term should be interpreted in line with the
historically evolved understanding of it that has evolved over time.
9. Argument from purpose. A term should be interpreted in a way that fits the
purpose that can be ascribed to a statutory provision, or a whole statute, as
applied to the case at issue.
10. Argument from substantive reasons. A term should be interpreted in line
with a goal that is fundamentally important to the legal order.
11. Argument from intention. A term should be interpreted in line with any
applicable legislative intention concerning the concerned statutory provi-
sion that can be identified.
These eleven kinds of interpretive arguments need to be compared to the list
of interpretive arguments identified by Tarello (1980): (1) argument a contrario
(from the contrary); (2) argument a simili ad simile (from analogy) (3) argument a
fortiori, (4) argument from completeness of the legal regulation, (5) argument
from the coherence of the legal regulation, (6) psychological argument, (7)
historical argument, (8) apagogical argument (9) teleological argument, (10)
parsimony argument, (11) authoritative argument, (12) systemic argument, (13)
naturalistic argument, (14) argument from equity (15) argument from general
principle.
The arguments from these two lists partially overlap, and in some cases
(such as the arguments from ordinary and technical meaning) can be analyzed
using more basic types of argument. More specifically, the arguments from
ordinary and technical meaning can be can be considered as the result of the
common interpretation of the term within its context,
2
which involves a funda-
mental legal presumption (the law shall be understood by the citizens) and the
interpretive process that can be represented using other arguments. By compar-
ing and combining these two lists of arguments, and by classifying some of them
under more generic patterns, we identified eleven general categories of argu-
ments of interpretation, which we have labeled using English names (Sartor et
al. 2014; Macagno et al. 2014; Walton et al. 2016):
1. Argument from the Exclusion of what is not stated (A Contrario Arguments).
In lack of any other explicit rules, if a rule attributes any normative quali-
fication to an individual or a category of individuals, any additional rule
attributing the same quality to any other individual or category of indivi-
duals should be excluded.
2The ordinary meaning does not correspond to “literal”meaning (i. e. interpretation within a
stereotypical context, see Kecskes 2013: 136) nor to the “plain”meaning (which is a judgement a
particular meaning is plainly or clearly correct; see Summers and Marshall 1992: 216).
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2. Argument from Analogy (requiring similarity of meaning between similar
provisions)
a. Extending a Category to a Similar Case (Analogia Legis). The application
of a written law applied to case Cshould be applied to a different,
similar case D.
b. Argument from General Principles (Analogia Iuris). An abstract and
unexpressed principle of law from which the stated law is drawn is
applied to a different case.
3. Argument a fortiori. If a rule attributes any normative qualification Qto an
individual or a category of individuals C, it can be concluded that there is a
different rule that attributes Qto another individual or another category of
individuals D, based on the fact that in the specific situation Qshall be all
the more attributed to D.
4. Authoritative Arguments:
a. The psychological argument. To a statement of law shall be attributed
the meaning that corresponds to the intention of its drafter or author,
that is, the historical legislator.
b. The historical argument. A statement of law should be interpreted
according to the interpretation that has been developed historically.
c. The authoritative argument. A statement of law should be interpreted
according to a previous interpretation, or rather on the authority of the
product of a previous interpretation.
d. The naturalistic argument (or natural meaning argument). A term
should be interpreted according to the commonly accepted “nature”
of the things (or its commonly used definition).
5. The Absurdity Argument (Reductio ad Absurdum). The possible interpreta-
tions of a statement of law leading to an unreasonable or “absurd”rule
should be rejected.
6. Equitative Argument. Interpretations leading to (un)fair or (un)just conse-
quences should be (excluded) accepted.
7. Argument from Coherence of the Law. The legal system is complete and
without gaps; therefore, from the lack of a specific rule governing a case, it
is possible to infer the existence of a generic one attributing a legal quali-
fication to such a case.
8. The Teleological (or Purposive) Argument. A statement of law should be
given the interpretation that corresponds to its intended purpose.
9. The Economic Argument. The interpreter needs to exclude an interpretation
of a statement of law that corresponds to the meaning of another (pre-
viously enacted or hierarchically superior) statement of law, as the legisla-
tor cannot issue a useless statement of law.
Statutory interpretation and argumentation schemes 51
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10. The Systematic Argument. If a term has a certain meaning in a statement of
law, such a term should be interpreted as having such a meaning in all the
statements of law in which it appears.
11. Arguments from completeness of the Law. If a term has a certain meaning
in a statement of law, such a term shall be interpreted as having such a
meaning in all the statements of law in which it appears.
These arguments can be analyzed using stereotypical and quasi-formal
patterns that bring to light the semantic principle connecting the premises and
the conclusions and representing the logical structure of the inference. Such
patterns, called argumentation schemes (Walton et al. 2008), allow one to
identify the nature and assess the strength of interpretative reasoning by provid-
ing a set of critical questions, or points of defeasibility, associated with the types
of argument represented according to their most prototypical logical pattern
(Macagno and Walton 2015; Walton and Macagno 2015).
2 Argumentation schemes
Argumentation schemes characterize the structure of defeasible arguments,
namely arguments not proceeding from the meaning of quantifiers or connectors
only, but from the semantic relations between the concepts involved. This account
is rooted in Toulmin’s notion of warrant, which he defines as “general, hypothe-
tical statements, which can act as bridges, and authorize the sort of step to which
our particular argument commits us”(Toulmin 1958: 91). These warrants can be
different in nature: they can be grounded on laws, principles of classification,
statistics, authority, causal relations or ethical principles. Such warrants have
become the principle of classification of arguments (Toulmin et al. 1984: 199).
Building on this approach, the idea of argumentation schemes was developed,
describing the combination between a semantic principle (such as classification,
cause, consequence, or authority) and a type of reasoning, such as deductive,
inductive or abductive reasoning. Their main purpose as regards legal argumenta-
tion is to provide abstract patterns representing types of arguments that carry
probative weight for supporting or attacking a conclusion, but in the most typical
instances are defeasible. Such arguments do not lead necessarily to true conclu-
sions and are not based on necessarily true premises.
Most of the argumentation schemes listed in (Walton et al. 2008) have a
defeasible modus ponens structure, grounded on a conditional defeasible gen-
eralization. A standard example is the following expanded scheme for argument
from expert opinion expert (Walton et al. 2008: 19):
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It is readily visible that this version of the scheme for argument from expert
opinion has a modus ponens structure as an inference. Since experts are gen-
erally not omniscient, and since in law it would be a great error to take what an
expert says uncritically, this inference must be viewed as being defeasible.
Subsequent work on argumentation schemes has followed this general way
of representing the logical structure of many defeasible argumentation schemes.
Bench-Capon and Prakken view the applications of defeasible rules (such as
legal or moral norms) as instances of defeasible modus ponens. They represent
any inference warranted by a defeasible rule of this sort by a semicolon con-
nective (;). Below is their basic argument scheme for applying defeasible rules
called the Rule Application Scheme (Bench-Capon and Prakken 2010: 159):
The letter rindicates the name of the rule. The following two critical questions
match this scheme (Bench-Capon and Prakken 2010: 159):
CQ
1
:Isrvalid?
CQ
2
:Israpplicable to the current case?
Critical questions concerning an inference scheme indicate situations which can
be presumptively assumed when reasoning with the scheme, but whose non-
existence would put the application of the scheme into question. Negative
answers to critical questions can be reformulated as counterarguments that
undercut (make inapplicable) the concerned scheme or contradict (rebut) its
premises (Walton and Sartor 2013).
Argumentation scheme 1: Argument from expert opinion
M
INOR
P
REMISE
: Source Eis an expert in subject domain Scontaining proposition A.
M
INOR
P
REMISE
:Easserts that proposition A(in domain S) is true (false).
C
ONDITIONAL
P
REMISE
:
If source Eis an expert in a subject domain Scontaining proposition A, and
Easserts that proposition Ais true (false), then Amay plausibly be taken to
be true (false).
C
ONCLUSION
:Amay plausibly be taken to be true (false).
r: P
,…,P
n
;Q
P
,…,P
n
Q
Statutory interpretation and argumentation schemes 53
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Now we can see, in general, that our conditional rule for framing interpre-
tive arguments is a general pattern for defeasible rules or argument schemes
that can be cast into this format. Below this rule has been expanded into a DMP
form of inference.
This abstract structure of inference represents the most generic pattern that inter-
pretative arguments have. On this perspective, the different argumentation schemes
can be adapted to the specific field of interpretation by replacing the generic DMP
form with the aforementioned one. This form of inference can be used to translate
the aforementioned arguments described by Tarello into argumentation schemes.
3 A contrario argument
The argument acontrariocan be summarized by the Latin principle Ubi lex voluit,
dixit; ubi noluit, tacuit (what the law wishes, it states, what the law does not want, it
keeps silent upon). According to this maxim, if a rule attributes any normative
qualification (such as a power, an obligation or a status) to an individual or a
category of individuals, in the absence of any other explicit rules it shall be
excluded that a different rule is in force (exists, is valid) attributing the same quality
to any other individual or category of individuals (Tarello 1980: 346). This argument
excludes an interpretation wider than theliteral one,and it rebuts any analogical or
extensive interpretation (Guastini 2011: 271). For instance, art. 17, 1st paragraph of
the Italian constitution provides that:
All citizens have the right to assemble peaceably and unarmed.
Is the legal predicate “to have the right of assembly”(A) also attributable to foreign-
ers and stateless people? If we use the argument acontrario,weproceedfromthe
principle that if the law wished to vest such a right in foreigners and stateless people,
it would have stated it (Guastini 2011: 272). Since there are no legal provisions relative
thereto, it shall be concluded that such a predicate is attributed only to citizens. As a
consequence, foreigners and stateless people will be excluded from such a right.
The argument acontrarioconcerns what a law does not provide for. At common
law, this argument is usually referred to as “Expressio Unius Est Exclusio Alterius.”A
clear case is the United States Supreme court case Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit (507U.S.163,1992).Theissueconcerned
If a sentence\term Xhas the property P, then Xshould (not) be given meaning M.
This sentence\term Xhas the property P.
Therefore Xshould (not) be given meaning M.
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the interpretation of the rules for filing a claim for relief in a specific circumstance in
which a claim is brought against local officials acting in their official capacity, a
county, and two municipal corporations for alleged unwarranted search of their
homes for narcotics. The plaintiff allegedly failed to file a complaint that included a
detailed and particular description of the basis for the claim, as requested by the
Court of Appeals in complaints against municipal corporations. The problem was
that this standard conflicted with Rule 8(a)(2) of the Federal Rules of Civil Procedure,
which provided that a claim for relief must contain only “a short and plain statement
of the claim showing that the pleader is entitled to relief.”The only exception is
stated in Rule 9(b): “In alleging fraud or mistake, a party must state with particu-
larity the circumstances constituting fraud or mistake,”which does not include
among the enumerated actions any reference to complaints alleging municipal
liability. The Supreme Court reasoned as follows (507 U.S. 163, 168):
Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might
be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be
obtained by the process of amending the Federal Rules, and not by judicial interpretation. In
the absence of such an amendment, federal courts and litigants must rely on summary
judgment and control of discovery to weed out unmeritorious claims sooner rather than later.
As the Court maintained, the mention of some specific cases implies the exclu-
sion of others not mentioned. The complete argument can be summarized in
Figure 1 below.
A claim for relief is brought
against local officials, a
county, and two municipal
corporations for alleged
unwarranted search.
The plaintiff failed to file
a complaint that included
a detailed and particular
description of the basis
for the claim.
+
-
The Court of Appeals in
complaints against
municipal corporations
requires a detailed and
particular description of the
basis for the claim.
Rule 8(a)(2) provides
that a claim for relief
must contain only
“a short and plain
statement of the claim”
Rule 9(b) states that “In
alleging fraud or mistake, a
party must state with
particularity the circumstances
constituting fraud or mistake,”
Rules 8 and 9(b) do not include
among the enumerated
actions any reference to
complaints alleging municipal
liability.
Expressio Unius Est Exclusio
Alterius.
The Federal Rules cannot be
amended by judicial
interpretation.
The complaints shall be
dismissed because they failed
to meet the "heightened
pleading standard."
Figure 1: A contrario reasoning in Leatherman v. Tarrant County.
Statutory interpretation and argumentation schemes 55
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In this figure (Figure 1), the pro-argument advanced by the respondent
(Tarrant County Narcotics Intelligence and Coordination Unit) is grounded on
the authority of the Court of Appeals for the Fifth Circuit (green box on top),
requiring a detailed description of the claim. This argument, however, is
rebutted by the acontrarioreasoning based on Rules 8 and 9 of the
Federal Rules of Civil Procedure. Since a heightened pleading standard (a
detailed description of the claim) is requested only in cases of fraud or
mistake, which do not correspond to the cause of complaint in the pleaded
case, such a standard shall be considered as not applicable to all the other
cases.
The reasoning structure of this argument can be modeled according to the a
contrario argumentation scheme below.
In this case, we need to notice that the reasoning is effective only in a closed-
world scenario. The conclusion can be drawn only in conditions of lack of
contrary evidence, that is, when no other laws setting out the attribution of
the same predicate to other categories are known. For this reason, the crucial
logical assumption behind this type of reasoning can be represented as a form of
reasoning from ignorance (Walton et al. 2008: 327):
This argument represents the passage from lack of knowledge to negation.
Similarly, the closed-world premise represents the inference from the absence
of a provision for attributing a predicate to category of individuals to the
Argumentation scheme 2a: A contrario scheme
M
AJOR PREMISE
If xis P, then xhas the right/is A.
C
LOSED WORLD
PREMISE
In lack of contrary provisions, if xis not P, then xdoes not have the right/
is not A.
M
INOR PREMISE
Individual ais not P.
C
ONCLUSION
Therefore, individual adoes not have the right/is not A.
Argumentation scheme 2b: Argument from ignorance
M
AJOR PREMISE
If Awere true, then Awould be known to be true.
M
INOR PREMISE
It is not the case that Ais known to be true.
C
ONCLUSION
Therefore Ais not true.
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negation of the predicate for such a category. However, this latter type of
reasoning is much more specific, as it excludes the possible counterargument,
namely that if Awere false, Awould be known to be false. The a contrario
excludes the inference from the lack of a denial of a right (negation of a
predicate) to its attribution.
4 Arguments from analogy
Argument from similarity can be considered as opposite (from an interpretative
perspective) to the argument a contrario. Instead of excluding the attribution of
the legal predicate to the entities not belonging to the category mentioned in the
law, it extends it. As Tarello put it, if a rule attributes any normative qualifica-
tion to an individual or a category of individuals, it can be concluded that there
is a different rule in force that attributes the same quality to another individual
or category of individuals connected with the former class by a similarity or an
analogy relation. Such a relationship is held to be relevant from the perspective
of the applicable law, or the qualification to be attributed (Tarello 1980: 351).
The reasoning structure of this type of argument can be represented as follows
(Walton et al. 2008: 315):
However, this pattern is ambiguous. The cases compared can be instances of
the same category governed by the legal qualification A,ortwocategoriesof
which the second (C
2
)isnotgovernedbyA. In other words, there is a crucial
difference between a similarity of two cases that can belong to the class P,
and a similarity of two categories, Pand Q. In law this difference is drawn by
the concepts of analogia legis, or the application of a written law to a
different, similar case (Colombo 2003: 96–97), and analogia iuris,orthe
application of an abstract and unexpressed principle of law from which the
stated law is drawn (Guastini 2011: 281). While in the first case analogy is
used to apply the law to borderline or controversial cases, in the second case
it is used to draw and support a new unexpressed rule covering a legal gap.
Argumentation scheme 3: Argument from analogy
M
AJOR PREMISE
Generally, case C
is similar to case C
.
M
INOR PREMISE
Proposition Ais true (false) in case C
.
C
ONCLUSION
Proposition Ais true (false) in case C
.
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This type of argument is used both in civil law and common law systems.
However, in the first case the expressed principle is a law, while in the
second case it is usually a prior case. We will show the uses in both systems
of law, building on the accounts of analogy advanced in argumentation
theory (Macagno and Walton 2009; Macagno et al. 2016) and our previous
works on specific interpretive schemes (Macagno 2015a).
4.1 Analogia legis
The argument from analogia legis can be illustrated in civil law by the following
case from the Italian Corte Costituzionale (judgment no. 0280 of 2010). The
article no. 180, 4th paragraph of the Legislative Decree n. 285 of 1992 allowed
public transport (vehicles for the transportation of persons) and vehicles for
rental (without driver) to keep on board only the photocopy of the registration
document, authenticated by the owner. The police officers stopped the driver of
a vehicle owned by a company of waste management, who showed them the
driving license and the photocopy of the registration documents, authenticated
by the company. Was the legal provision applicable in this case, even though
the purpose of the vehicle was not transportation of people, but of objects? The
Italian Corte Costituzionale advanced an argument comparing waste manage-
ment trucks with vehicles for public transport of persons, pointing out that the
essential features of the category of “vehicles for public transport of persons”of
entities are “being an essential public service”and “managing a fleet of
vehicles.”
3
At common law the judge both applies and defines the legal rules based on
previously decided cases (Friesen 1996: 12–13). In this system we can consider
the principle underlying the concept of analogia legis, and conceive of it as the
specification or extension of a category, by pointing out the essential or funda-
mental characteristics (or factors), already governed by a legal provision or a
precedent to include a borderline case. One of the most famous cases involving
this use of analogy is Popov v. Hayashi (WL 31833731, Cal. Super. Ct. 2002). In
this case the plaintiff, Popov (a baseball fan), stopped the ball hit by a famous
player with his glove. The player who hit the ball has set a new record for home
runs, making the ball very valuable. However, in order to reach for the ball,
3See http://www.dircost.unito.it/SentNet1.01/srch/sn_showArgs.asp?id_sentenza=
20100280#20100280_3 (accessed on 7 March 2012).
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Popov lost his balance and was forced to the ground by the crowd, leaving the
ball loose on the ground. Hayashi (the defendant) was involuntarily forced to
the ground too, and when he saw the loose ball, he picked it up, rose to his feet
and put it in his pocket. Popov, who intended to establish and maintain
possession of the ball, could not prove that he secured it. An issue for both
parties was the classification of Popov’s act as possession. The defense used the
following argument (at 8):
The hunting and fishing cases recognize that a mortally wounded animal may run for a
distance before falling. The hunter acquires possession upon the act of wounding the
animal not the eventual capture. Similarly, whalers acquire possession by landing a
harpoon, not by subduing the animal.
The plaintiff compared the possession of the ball with the possession of an
animal or a whale in hunting and fishing. In these latter cases, possession is
established based on the criterion, or rather factor, of partial dominion and
control over the possessed item.
From a reasoning perspective, analogia legis can be conceived as a form of
specification of the properties of the predicate. Since the definition does not allow a
classification of borderline cases, through analogy the relevant, unstated factors are
pointed out. This type of reasoning can be represented as follows (Ashley 1991: 758):
The predicate is specified (or rather redefined, Sorensen 1991) by highlighting the
factors that are considered as essential for the legal qualification to apply.
4.2 Analogia iuris (argument from general principles)
The analysis of analogy as a strategy of redefinition can be used to describe
another mechanism of reasoning, which we can refer to as analogia iuris. This
Argumentation scheme 3a: Argument from analogia legis
P
REMISE
(
RULE
)Ifxis P, then xhas the right/is A.
P
REMISE
(
BORDERLINE
) It is not clear whether a(a borderline
case) is P.
S
IMILARITY PREMISE
ais similar to b.
P
REMISE
(
PRINCIPLE OF
CLASSIFICATION
)
bwas classified as Pbecause of the
factors f
,f
,…,f
n
.
R
EDEFINITION PREMISE
If xhas the factors f
,f
,…,f
n
, then xis P.
P
REMISE
(
FACTORS
)ahas f
,f
,…,f
n
.
C
ONCLUSION
Therefore, ais P.
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label is intended to only cover a specific logical dimension of analogy, taking
into account the reasoning aspect of this instrument of legal interpretation
(without any pretense to discuss the legal implications or characteristics
thereof). Analogia iuris represents the application of an implicit ratio governing
a law to a different case. In civil law it represents the reasoning underlying the
“construction of an unexpressed rule”(Guastini 2011: 278), which can be illu-
strated by the following case (Guastini 2011: 280):
According to art. 2038 of the Italian Civil code, anyone who has unduly received some
goods and has transferred them in good faith, ignoring the obligation to return them, shall
return the consideration thereof and not the very goods or their value. The ratio of the law
is the principle of protecting good faith. On this view, the law provides only for the
restitution of the consideration and not more burdensome obligations in order to protect
the good faith of the individual. The undue receipt and the transferal subsequent thereof is
similar to the purchase and sale of stolen goods when their illicit provenience is unknown.
Therefore, art. 2038, 1st paragraph, shall be interpreted as applicable also to the case of
purchase in good faith of stolen goods.
In this case, an unexpressed principle is abstracted from a law and applied to a
case not possibly falling thereunder. From this perspective, the analogia iuris
creates a new law.
At common law, this type of reasoning is conceived not merely as aimed at
extending or precisifying (Sorensen 1991: 100) a concept, but at stipulating a
new one, more generic and not potentially covered by the existing ones. It can
be illustrated by the following case (Adams v. New Jersey Steamboat Co., 29 N.Y.
S. 56, 1894):
The action was brought to recover a certain sum of money alleged to have been lost to
plaintiff when a passenger upon one of defendant’s steamboats. […] The liability of a
steamboat company is analogous to that of an innkeeper at common law, and proof of the
loss from a stateroom of a sum of money which might reasonably be carried for traveling
expenses renders the company liable therefor […]
In this case, there was no law governing the liability of steamboat operators.
However, there was a law providing that innkeepers shall be liable as insurers
for their guest’s losses. The court decided to use the ratio underlying the
liability of innkeepers, abstracting the essential properties motivating the
application of the legal predicate. In this case, the ratio was the accessory
consequence of the contract to feed, lodge and accommodate a guest for a
suitable reward. A new implicit category was created, namely “providers of a
service of accommodation governed by contract,”which comprised both inn-
keepers and steamboat operators.
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This argument can be represented as follows (Macagno and Walton 2009:
173; Macagno et al. 2016; Guastini 2011: 280–281):
This type of reasoning is grounded on two fundamental principles, expressed by
Boethius in his De Differentiis Topicis (Stump 2004). The first principle is the
attribution of the property Aof the species Pto the functional genus G.This
passage is supported by the maxim connecting the species to the genus: what is
predicated of the parts (in this case essential part, the species) is predicated also of
the whole (in this case essential whole, the genus).
4
In a case of analogy, the
genus Gis abstracted based on the property Apredicated of the species. It is
considered as an essential property of the species (or rather, the category Phas
been chosen because it is essentially similar to Qfrom the point of view of A)and
for this reason is predicated of the possible essential parts of G. The other
inferential step is presupposed by the requirements of the former. From the
predication of the property Ato the genus G, the attribution of Ato the other
species Pis concluded. This inferential step is supported by the maxim stating that
“What is (not essentially) said of the genus is said of its species as well.”
5
Since
Pand Qare the two species of G,andAis attributed to G, then Qis G.
5A fortiori argument
The first analysis of a fortiori argument was undertaken by Aristotle in the Topics
and in the Rhetoric. In both works he pointed out how this type of reasoning is
grounded on the concept of likeness of predication: if a predicate cannot be
attributed to an entity P1 to which it is more likely to be predicated, neither can
it be attributed to an entity P2 that it is less likely to be characterized as such
Argumentation scheme 3b: Argument from analogia iuris
Premise (target) No law provides for the x’s that are Q.
Premise (property) If xis P, then xhas the right/is A.
Similarity premise Pand Qare included/are subsets of the same functional genus G.
Species –Genus premise If xis G, then xhas the right/is A.
Conclusion If xis Q, then xhas the right/is A.
4Quod enim singulis partibus inest, id toti inesse necesse est (Boethii De Topicis Differentiis,
1189A).
5[…] quae generi adsunt specie adsunt (Boethii De Topicis Differentiis, 1188C).
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(Topics II, 10). The positive a fortiori reasoning can be stated as follows: if a
predicate P2 can be attributed to an entity to which it is less likely predicated, it
must be attributed to an entity that it is more likely predicated P1. In legal
argumentation, the a fortiori argument can be considered as similar to the
argument from similarity (Guastini 2011: 282–283). In both cases, the interpreter
aims at supporting an unexpressed rule and presupposes a ratio iuris, which is
applied to the case not judged yet (Horovitz 1972: 96). The structure of the
reasoning can be expressed as follows. If a rule attributes any normative
qualification (such as a power, an obligation or a status) to an individual or a
category of individuals, it can be concluded that there is a different rule (or a
different rule exists, is valid) that attributes the same quality to another indivi-
dual or category of individuals in a situation in which such a normative quali-
fication shall be all the more attributed (Tarello 1980: 355). This argument is
used to extend the application of the interpreted normative statement to cate-
gories of individuals or behaviors apparently not falling within the scope of the
rule. The reasoning structure of this argument can be understood from the
following example (Bekteshi v. Mukasey, 260 Fed. Appx. 642, 2007):
Failure to satisfy the less demanding asylum standard was, a fortiori, a failure to demon-
strate eligibility for withholding of removal.
From the perspective of the CAT
6
“eligibility for relief”(A), the standard of proof
for “withholding or removal”P
2
included the one applied to “asylum”(P
1
), in
the sense that P
2
presented all the relevant characteristics (or rather require-
ments) of P
1
, plus some additional ones. For that reason, this type of reasoning
is convertible for destructive purposes but not for constructive ones. If P
2
is the
case, then P
1
is the case, but if P
2
is not the case, it does not follow that P
1
is not
the case. On the other hand, if P
1
is the case, it does not follow that P
2
is the
case, while if P
1
is not the case, P
2
cannot be the case:
For this reason, we can consider the a fortiori argument an argument from
analogy not as establishing a relation of equivalence (P
2
is the same as P
1
),
Valid inferences Invalid inferences
(P
(x) ˄A(x)) →(P
(x) ˄A(x)) (P
(x) ˄¬A(x)) →?(P
(x) ˄¬A(x))
(P
(x) ˄¬A(x)) →(P
(x) ˄¬A(x)) (P
(x) ˄A(x)) →?(P
(x) ˄A(x))
6United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
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but as a relation of entailment between the two predicates (if P
2
, then P
1
). We
can represent the structure of the argument as follows:
In civil law these inferences are used to interpret normative statements. For
instance, we can consider the following cases (Guastini 2011: 283)
According to art. 11, 1st paragraph disp. prel. (disposition effective prior to constitution) of
the Italian Civil Code, statutes cannot be retroactively effective; therefore, a fortiori,
regulations, which are subordinated to statutes, cannot be retroactively effective.
In this case, the a fortiori reasoning presupposes the implicit principle that the
limits and the restrictions that apply to hierarchically superior sources of law
apply also to the inferior ones. However, the same pattern of reasoning could
not be used for concluding that if the constitutional law shall be approved by
the absolute majority of the Parliamentary members, a fortiori a rule shall be
approved by the absolute majority of the PMs. Guastini distinguishes between
two types of a fortiori argument, depending on whether the reasoning is aimed
at interpreting statements imposing an advantageous condition (such as a right)
or a disadvantageous one (such as a duty). In the first case, the argument
proceeds a majori ad minus (from the greater to the lesser). For instance, if it
is allowed to flash one’s own headlights to warn other cars, then in such cases it
is allowed to flash one’s own dimmed headlights. In the second case, the
argument is a minori ad maius (from the lesser to the greater). For instance, if
bikes are not allowed in a park, then, a fortiori, motorbikes are not allowed. This
distinction drawn by Guastini highlights the difference between the constructive
predicates (rights) and the destructive ones (obligations and limitations). This
distinction depends on the evaluation of the action at issue. If an action is
prohibited, then any action which is of a similar kind but is worse (with regard
to the law’s values) is also a fortiori prohibited; if an action is permitted then
anything which is better is a fortiori permitted. This type of reasoning is
Argumentation scheme 3c: Argument from analogy –a fortiori
Premise (target) No law provides for the x’s that are Q.
Premise (property) If xis P, then xhas the right/is A.
Similarity premise Pand Qare included/are subsets of the same functional genus Gthat
motivates A.
Species –Genus
premise
If xis G, then xhas the right/is A.
A fortiori premise Qbelongs to Gmore than Pdoes.
Conclusion If xis Q, then xhas the right/is A.
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grounded on the legally relevant characteristics of an action. Something is
regarded as legally bad when it has a certain feature or dimension legally
assessed as negative. As a consequence, something is worse when it is char-
acterized by a higher degree or level of such a negative feature, while it is better
when it is characterized by a lower degree of such a negative property. On the
contrary, something is regarded as legally better when it characterized by a
property whose higher degree increases the goodness of the action, while the
lower degree thereof worsens the action.
6 Arguments from authority
Walton and Koszowy (2015) have extended the study of arguments from author-
ity by adding an argumentation scheme for arguments from administrative
authority to the existing scheme for argument from expert opinion. An epistemic
authority is defined as an expert in the field of knowledge, whereas a deontic
administrative authority has a right to exercise command or influence over
another party subject to that authority (Bochenski 1974: 71; Walton 2010). The
pronouncement of an administrative authority can be legally binding but can
also be subject to appeal, and disobedience can have penalties. This distinction
between administrative authority and expert opinion illustrates the difference
between the various types of arguments grounded on the authority of the law-
maker and the ones based on the appeal to the expert witness. The use of
authority characterizes also a third kind of argument used in statutory inter-
pretation, the naturalistic argument, whose force derives from the authority of
the majority of the people or the common opinion.
a) Psychological argument (intention of the actual legislator)
This argument is grounded on the intention of the actual, real drafter of the
statement of law that needs to be interpreted. According to this line of reason-
ing, to a statement of law shall be attributed the meaning that should alleg-
edly correspond to the intention of its drafter or author, that is, the historical
legislator (Tarello 1980: 364). This type of argument is based on the idea that a
statement of law is the expression of a command from a superior authority.
Therefore, the interpretation of a statement of law corresponds to the recon-
struction of the command of the authority. However, if the legislator is not a
single authority, such as a king or an imperator, but a plurality of people (an
assembly such as the Senate or the House of Representatives), this argument
amounts to attributing a unique intention to a community of people, who may
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have voted the statement of law for different reasons and different intentions
(Easterbrook 1984).
This type of argument can be illustrated using an example from the common
law (United States v. California, 381 U.S. 139, at 150, 151, 1965). This controversy,
concerning the possession of the submerged lands of California, was based on
the definition of “submerged water,.”which in turn amounted to the definition
of “inland water.”The Court grounded its argument on the fact that the only
way of recovering the definition was the legislative history, or rather the inten-
tion of the legislator. Since the Senate Committee excluded the definition set out
in the proposed bill, their intention was not to define it, leaving its meaning to
be determined by the Courts:
As first written, the bill defined inland waters to include “all estuaries, ports, harbors,
bays, channels, straits, historic bays, and sounds, and all other bodies of water which join
the open sea.”This definition was removed by the Senate Committee. […] Removal of the
definition for inland waters and the addition of the three-mile limitation in the Pacific,
when taken together, unmistakably show that California cannot prevail in its contention
that “as used in the Act, Congress intended inland waters to identify those areas which the
states always thought were inland waters.”By deleting the original definition of “inland
waters”Congress made plain its intent to leave the meaning of the term to be elaborated by
the courts, independently of the Submerged Lands Act.
In order to analyze the force and the characteristics of this type of argument, it is
useful to distinguish between two kinds of authority. One is the classic form of
argument from authority, corresponding to the authority of the expert men-
tioned in Section 2 above (Walton et al. 2008: 19). As mentioned above, the
legislator can be considered an administrative authority, characterized by the
power deriving from a superior role or standing of some official who is entitled
to make rulings that are binding within a legislative framework (Ciceronis
Topica, 24). This type of argument from authority has the following argumenta-
tion scheme:
Argumentation scheme 1a: Administrative authority
Minor Premise: Source Lis an authority involved in (passing, drafting, amending) the
statement of law A.
Major Premise:L(passed, drafted, amended) proposition Aintending A
.
Conditional
Premise:
If source Lis an authority involved in (passing, drafting, amending) the
statement of law A, and Lintended the interpretation A
, then A
may
plausibly be taken to be right interpretation.
Conclusion:A
may plausibly be taken to be the right interpretation.
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In Conroy v. Aniskoff (507 U.S. 511, at 519, 1993), Justice Scalia pointed out
some crucial critical dimensions of this scheme, related to the fact that attri-
buting a specific intention to a body is extremely problematic, and depending
on the viewpoint one wants to defend, he will choose the opinions of the
personages better suiting his own purpose. Building on the critical questions
of the argument from expert opinion, along with Tarello’sanalysis(Tarello
1980: 366–367) and the aforementioned refutation of the psychological argu-
ment, this response can be summarized in the following crucial defeasible
dimensions:
1. Authority Question: Shall Lbe considered as an authority (the law is inde-
pendent from the will of the legislator)?
2. Role Question: Who is L(the majority, the most influential, the representa-
tives) and what role has he played?
3. Opinion Question: What did Lassert that implies A
1
?
4. Consistency Question:IsA
1
consistent with the intention of other Ls that
passed the same law?
5. Coherence Question: Does A
1
lead to any antinomy or incoherence in the
legal system?
One of the crucial and most controversial problems is how to determine a
collective intention, especially if the statement of law has been voted by different
political groups for different purposes. As Scalia put it, “There is no escaping the
point: Legislative history that does not represent the intent of the whole Congress is
non-probative; and legislative history that does represent the intent of the whole
Congress is fanciful”(Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264,
at 281, 1996). Another crucial problem is to understand the intention. The travaux
preparatoires, or legislative history, are used for this purpose as evidence which is
employed for analyzing the reasons given by the legislative bodies to support a
statement of law. Obviously the reconstruction of the intention needs to be sup-
ported by further arguments, one of which is the appeal to further authorities.
b) Historical argument (presumption of continuity or conservative legislator)
The psychological argument is based on the legislator as an authority. However,
the crucial problem is to determine what the legislator intended in that specific
case. The historical argument can be considered as a different form of argument
from authority, where the authority is not directly the actual legislator but the
traditional interpretation of a previous statement of law that governed the same
case in the same legal system. This reasoning is based on the principle that the
rules are constant in time, and that subsequent legislators used and use the
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ancient rules as a model to be simply improved from a formal or lexical
perspective (Tarello 1980: 368). On this perspective, the previous interpretation
works as an authority for the subsequent ones, and then the previous legislators
can be thought of as the authorities on whom the actual ones base their
intentions. This argument is used at common law to reconstruct the intention
of the legislator in cases in which the intent is not clear. For instance we
consider the use of this argument in the following case, concerning the inter-
pretation of the section 12-47-901 of the Colorado statutes (People v. Davis, 218
P.3d 718, at 726, 2008):
Because the legislative intent is not reasonably certain from the plain language of the 2005
version of section 12-47-903(5), we look to the prior version of the law, the goal of the
statutory scheme, the consequences of its construction, and the legislative history to
determine legislative intent. In 1997, the General Assembly manifested its intent that
violations of the liquor code proscription of providing liquor to a minor would also violate
the general criminal code proscription against contributing to the delinquency of a minor.
In doing so, the legislature explicitly provided that these violations of the liquor code
could also be prosecuted under the criminal code. Thus, […] the plain language of the 1997
statute explicitly reflected the legislature’s intent to permit prosecution under the criminal
code. […] In this context, we conclude that the 1997 amendment demonstrates that the
General Assembly intended that liquor code violations pertaining to providing alcohol to
minors could be punishable under the criminal code. Further, we conclude that the 2005
amendment, and the fact that the General Assembly did not, at the same time, amend
section 12-47-903(5) to reflect the addition of subsection (a.5) in 12-47-901(1), do not
express or imply an intention to preclude prosecution of contributing to the delinquency
of a minor under the criminal code.
In the absence of more powerful arguments clearly supporting the actual legis-
lator’s intent, the historical argument can be extremely effective, especially
when the documents considered are close in time to the statement of law to
be interpreted. However, this argument is grounded on the principle that the law
should reflect the intent of the legislator, incurring the same weaknesses as the
psychological argument. Moreover, it presupposes that the actual legislator is
relying on the intentions of previous legislators. Finally, just as the psychologi-
cal argument risks becoming a following of one’s“friends,”quoting Scalia’s
metaphor, the historical one risks turning into a potentially open ended inquiry
(Conroy v. Aniskoff, 507 U.S. 511, at 520, 521, 1993), in which “one could go back
further in time to examine the Civil War-era relief Acts.”
c) Authoritative argument (ab exemplo)
The authoritative argument is based on the authority of a previous interpreta-
tion, or rather on the authority of the product of a previous interpretation. This
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type of reasoning cannot be considered as the same as the argument from
precedent, or analogy, because the authoritative argument applies when the
appeal to the precedent is not a rule or when the legal theory is not considered
as a source of the law. The crucial problem consists in identifying the legal
theory that is majoritarian, or is the best one. The crucial dimension of the
argument from precedent is the ratio decidendi, the reason why the precedent
case was decided in a certain way. Such a reason, which corresponds to an
argument or a combination of arguments, is applied to a similar case.
This type of argument can be represented as a variant of the aforementioned
argument from expertise (Walton et al. 2008: 19):
d) Appeal to popular opinion: Naturalistic argument
The naturalistic argument is based on the so-called “nature”of man, social
relations, or things. On this perspective, the law is directly drawn or taken
from the nature of something, and the legislator cannot force it, otherwise is
not real law. On this perspective, for instance, killing and torturing are objec-
tively wrong, and therefore there are laws against homicide and torture (Guastini
2011: 242). Therefore, the fact that killing is wrong is not based on a decision of a
legislator; on the contrary, the law is based on a natural value (preserving
human life). For this reason, this statement of law can be said to be true. An
example of this argument, which is often left implicit and underlying other
arguments is the following Italian case (Corte Costituzionale, Sentenza n. 138/
210) concerning the constitutionality of the civil law prohibiting same-sex mar-
riage. Such a law was allegedly conflicting with article 3 of the Italian constitu-
tion (prohibiting any discrimination) and article 29, defining family. The Court
found that the same-sex marriage ban was not unconstitutional, grounding its
argument on the definition of family as a “natural society based on marriage”
(Italian Constitution, art. 29). This definition is gender-neutral; however, what
Argumentation scheme 1b: Authority of previous interpretations
MAJOR PREMISE: Source L(legal theory/previous case) is an authority in subject domain S
containing proposition A.
MINOR PREMISE: Lasserts that proposition A(in domain S) is true (false).
CONDITIONAL
PREMISE:
If source Lis an authority in a subject domain Scontaining proposition A,
and Lasserts that proposition Ais true (false), then Amay plausibly be
taken to be true (false).
CONCLUSION: Amay plausibly be taken to be true (false).
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shall be considered as a “natural society”(Damele 2016)? The argument pro-
vided by the Court and supporting the unnaturalness of same-sex marriage
proceeds from the “nature”of family, which seems to amount to the realistic
idea that there are entities that fit natural kinds, and that the terms denoting
them have a meaning that is not fixed by linguistic convention but rather by
reference. However, if we do not accept this type of philosophical position, we
need to analyze the structure of this type of argument adopting a conventionalist
point of view, which is supported by leading federal cases in the United States.
This naturalistic argument can be interpreted as the ground of the rule of
“natural meaning”or “common sense”(Soboleva 2007), namely that “in the
absence of a definition in a statute, the United States Supreme Court will
construe a statutory term in accordance with the term’s ordinary or natural
meaning”(Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 1994; Perrin v. United
States, 444 U.S. 37, at 42, 1979; 322 L Ed Digest § 165). A clear and seminal case is
the definition of “fruit”in Nix v. Hedden (149 U.S. 304, 1893):
Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes,
beans, and peas. But in the common language of the people, whether sellers or consumers
of provisions, all these are vegetables which are grown in kitchen gardens, and which,
whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauli-
flower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup,
fish, or meats which constitute the principal part of the repast, and not, like fruits
generally, as dessert.
The “nature of the things”can be also regarded as the common sense, com-
monly accepted principles that do not need to be further proved (People v.
Collins, 214 Ill. 2d 206, at 218, 2005). This type of argument can be represented
using the argument from popular opinion (Walton et al. 2008: 311):
On this perspective, we can conceive the structure of the interpretive naturalistic
argument (i. e. an appeal to the “nature”of a concept that needs to be inter-
preted) as a specific case of an appeal to a shared consensus on a definition (the
“true”or “real”meaning) (Halldén 1960; Schiappa 1993; Macagno and Walton
2014: Chap. 3).
Argumentation scheme 4: Argument from popular opinion
GENERAL ACCEPTANCE PREMISE Ais generally accepted as true.
PRESUMPTION PREMISE If Ais generally accepted as true, that gives a reason
in favor of A.
CONCLUSION: There is a reason in favor of A.
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7 Arguments from consequences
Three interpretative arguments can be traced back to instances or subtypes of
argument from consequences: the reductio ad absurdum (apagogic or absurdity
argument), the equitative argument, and the ancillary argument of coherence of
the law.
e) Reductio ad absurdum
The apagogic argument, or rather the reductio ad absurdum, is grounded on the
principle of the reasonableness of the legislator. This argument is aimed at
excluding the possible interpretations of a statement of law leading to an
unreasonable or “absurd”rule (Tarello 1980: 369). This type of argument is
purely destructive, as it is aimed at excluding one or more possible alternatives
without providing any positive grounds to support a specific interpretation. It
can be particularly effective when there is only one possible alternative inter-
pretation, as it turns into the pragmatic counterpart of the disjunctive syllogism,
or reasoning from oppositions.
The force of this type of reasoning, however, lies on an ambiguous concept,
absurdity, and in particular the absurdity of a rule of law. As Tarello emphasized
(Tarello 1980: 370), a rule of law can be absurd because of its application to a
case (or the generalization of such an application) or because of the outcomes or
effects of its application to a case (or the generalization thereof). Moreover, the
nature of absurdity is ambiguous. Such applications or effects can be logically,
practically or ethically absurd. For this reason, Tarello suggests that the apago-
gic argument is an umbrella term covering different strategies of refutation,
aimed at excluding a possible interpretation in order to affirm possible alter-
native ones.
At common law, this type of reasoning is called the “absurdity doctrine”
(Manning 2003: 2389–2390; Gold 2006: 53). It can be illustrated through the
following case (Corley v. United States, 556 U.S. 303, at 317; 2009):
§ 3501(e) defines “confession”as “any confession of guilt of any criminal offense or any
self-incriminating statement made or given orally or in writing.”Thus, if the Government
seriously urged a literal reading, (a) would mean that “[i]n any criminal prosecution
brought by the United States …,[‘any self-incriminating statement’with respect to ‘any
criminal offense’]…shall be admissible in evidence if it is voluntarily given.”Thus would
many a Rule of Evidence be overridden in case after case: a defendant’s self-incriminating
statement to his lawyer would be admissible despite his insistence on attorney-client
privilege; a fourth-hand hearsay statement the defendant allegedly made would come in;
and a defendant’s confession to an entirely unrelated crime committed years earlier would
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be admissible. These are some of the absurdities of literalism that show that Congress
could not have been writing in a literalistic frame of mind.
As maintained in (Macagno 2015a), this type of reasoning can be represented
with the argument from consequences (Walton et al. 2008: 332):
In this case, a legal interpretation of a statement of law, if maintained, leads to
outcomes that are unacceptable for different reasons. For instance, the rule
created by such an interpretation would introduce a contradiction into the
legal system (directly or indirectly conflicting with another provision), or contra-
dict ethical rules.
We now need to recall that the quotation from Tarello just above defined the
“absurd”result as a result that is “contrary to perceived social values.”Here we
need to recognize the pair of argumentation schemes for arguments from values.
The first of the pair is the scheme for argument from positive value (Walton et al.
2008: 321).
The second of the pair is the scheme for argument from negative value (Walton
et al. 2008: 321).
Note that argument from consequences is a species of value-based argument
which assumes that the consequences at issue can be classified as good (positive
value) or bad (negative value).
Argumentation scheme 5: Argument from consequences
PREMISE :IfAis brought about, good (bad) consequences will plausibly occur.
PREMISE : What leads to good (bad) consequences shall be (not) brought about.
CONCLUSION: Therefore Ashould be (not) brought about.
Argumentation scheme 6: Argument from values –negative values
P
REMISE
: Value Vis negative as judged by agent A.
P
REMISE
:IfVis negative, it is a reason for retracting commitment to goal G.
C
ONCLUSION
:Vis a reason for retracting commitment to goal G.
Argumentation scheme 6: Argument from values –positive values
P
REMISE
: Value Vis positive as judged by agent A.
P
REMISE
:IfVis positive, it is a reason for Ato commit to goal G.
C
ONCLUSION
:Vis a reason for Ato commit to goal G.
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f) Equitative argument
One of the interpretative arguments that fall within the argumentation from
values (Argumentation scheme 6) is the equitative one, an argument proceeding
from a specific value that cannot be disputed, i. e. fairness. In analyzing legal
argumentation based on appeal to justice, Perelman (1980: 11) argued that the
notion of justice consists in an application of the notion of equality. Following
Aristotle, who observed that there should exist a likeness between beings to
whom justice is administered, Perelman (1980) defined the principle of formal or
abstract justice as the principle of action in accordance with which beings of one
in the same essential category must be treated in the same way.
One clear example comes from the case Popov v. Hayashi (WL 31833731,
2002). As mentioned above, both claimant and defendant had different reasons
to claim possession of the home-run ball. Claimant had first a pre-possessory
interest in the ball, as he tried to catch it, not achieving full possession.
Defendant achieved full possession of the ball, but it had a cloud on its title.
The court proposed to apply the principle of equitable division, which, however,
had to be supported by reasons. One of the arguments used was from the
authority of Roman law, which is not considered as a source of law at common
law (at 11):
Both men have a superior claim to the ball as against all the world. Each man has a claim
of equal dignity as to the other. We are, therefore, left with something of a dilemma. […]
The concept of equitable division has its roots in ancient Roman law. As Helmholz points
out, it is useful in that it “provides an equitable way to resolve competing claims which are
equally strong.”Moreover, "[i]t comports with what one instinctively feels to be fair"
In the same case, the court had to justify the application of the principle. However,
there were no California cases on such an issue and for this reason argument from
analogy could not be used. The only argument was the authority of a previous
case where the same principle (“where more than one party has a valid claim to a
single piece of property, the court will recognize an undivided interest in the
property in proportion to the strength of the claim”) was used (at 11).
Since this is a civil case, it has to be decided on the basis of the preponder-
ance of the evidence. But what happens if the argument of the one side is not
even provably stronger than the argument the other side to justify awarding the
ball to one of the sides? As Judge McCarthy put it, each man has a claim of equal
worth, based on the facts that could be determined. On the evidence, there
appears to be no way to arrive at a just decision. However, Judge McCarthy
broke the deadlock by appealing to the principle of fairness. As it happens, this
way of arriving at a legal decision is a form of argument that does fit an
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argumentation scheme (Walton 2014: 434) derived from Perelman’s views on the
principle of justice (Perelman 1980: 10–11). In the formulation of this scheme
below αand βare agents and φis an action or policy being considered.
This version of the argument from fairness models the scheme as a chaining
together of two inferences. The first inference supports the conclusion that φis
fair. The second inference uses this conclusion as a premise in an argument
supporting the action φ.
Judge McCarthy’s argument fits the scheme because Popov and Hayashi are
agents of the same kind, for splitting the proceeds for the ball treats them both
equally, and if splitting the ball treats both equally then it is a fair policy.
Moreover, if this is a fair policy, it should be carried out.
g) Ancillary argument: Argument from the coherence of the law
The argument from the coherence of the law is an ancillary argument, or rather a
rebuttal of arguments supporting an interpretation of a statement of law leading
to a conflict of rules. It is grounded on the principle that the law provides a
coherent system regulating community life without antinomies. It leads to the
conclusion that in cases of interpretative controversies involving interpretations
resulting in a conflict of rules, a “corrective interpretation”needs to be found
(Tarello 1980: 361). Like the argument from the completeness of the law, the
argument from coherence is purely negative, as it is used to rebut a specific
(interpretative) conclusion without advancing any interpretation. However,
while the argument from the completeness of the law simply supports the
need for an interpretation of a statement of law, this argument, by rejecting
one of the possible interpretations, indicates the paradigm of the acceptable
ones. In particular, it is used to exclude the possibility of annulling one of the
conflicting statements of law (the older or the hierarchically inferior), opening
the paradigm of their possible interpretations that do not result in a conflict of
Argumentation scheme 6a: Argument from values –fairness
P
REMISE
: Agents αand βare of the same kind.
P
REMISE
:φtreats αand βequally.
P
REMISE
:Ifφtreats αand βequally, then φis fair.
I
NTERIM CONCLUSION
:φis fair.
P
REMISE
:Ifφis fair, then φshould be carried out.
U
LTIMATE CONCLUSION
:φshould be carried out.
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rules. As Tarello put it, in the event that there are two statements of law (A and
B) that allow for different interpretations (a
1
,a
2
,a
3
;b
1
,b
2
), some of which are
incompatible (a
2
and b
2
,ora
3
and b
2
), there are two possible scenarios (Tarello
1980: 362):
This type of argument can be considered a subtype of arguments from conse-
quences - see Argumentation scheme 5 above.
8 Practical reasoning and teleological argument
This type of argument is based on the idea of an abstract legislator who enacted
the law for a specific purpose. The interpreter is not reconstructing the actual
will of a real person, but the goal for which a statement of law was issued.
According to this argument, a statement of law shall be given the interpretation
that corresponds to its purpose. The goal is reconstructed considering the text of
the specific act under consideration or the interests and goals pursued by the
law in general (Tarello 1980: 370). By means of this argument, the interpreted
text can extend the application of a certain act beyond the literary meaning of
the terms used therein.
This type of argument can be represented with the following pattern of
argument, called practical reasoning (Walton et al. 2008: 323):
Possible solutions Arg. from
coherence
Possible solutions
. Declaring Bunenforceable, as inferior or prior to A.Not possible
. Choosing non-conflicting interpretations (a
and
b
/b
/b
;a
and b
;ora
and b
).
(a
and b
/b
/b
;a
and b
;ora
and b
)
Argumentation scheme 7: Practical reasoning
PREMISE : I (an agent) have a goal G.
PREMISE : Carrying out this action Ais a means to realize G.
CONCLUSION: Therefore, I ought to (practically speaking) carry out this action A.
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For instance we can consider the case Garner v Burr (1 KB 31, at 33; 1951).
In this case, a farmer put wheels without rubber tires on a chicken coop and
towed it with his tractor. He was prosecuted pursuant to the Road Traffic Act
1930, which prohibited the use of vehicles without rubber tires on highways.
The defense argued that the coop was not a vehicle, which the dictionary
defined as “a means of conveyance provided with wheels or runners and
used for the carriage of persons or goods.”The wheeled coop was not used
to transport any person or goods at that time, and could not be classified as a
“vehicle.”The court applied teleological reasoning as follows (emphasis
added):
The regulations are designed for a variety of reasons, among them the protection of road
surfaces; and, as this vehicle had ordinary iron tyres, not pneumatic tyres, it was liable to
damage the roads. […] It is true that, according to the dictionary definition, a ‘vehicle’is
primarily to be regarded as a means of conveyance provided with wheels or runners and
used for the carriage of persons or goods. It is true that the [magistrates] do not find that
anything was carried in the vehicle at the time; but I think that the Act is clearly aimed at
anything which will run on wheels which is being drawn by a tractor or another motor
vehicle.
In the case above, the purpose of the law is drawn from the “social”effects of
the law, i. e. to protect road surfaces. The definition of vehicle in this sense is
argued for as a means to pursue the original purpose of the law.
The argument from purpose can be supported also by an historical argument,
showing how the purpose of the law should correspond to the purpose of the
legislators. For instance, in Smith v. United States the defendants were accused of
drug trafficking aggravated by the alleged “use of weapons.”However, the
defendants were actually bartering weapons, not “using it [a weapon] for its
intended purpose,”as the defense defined the term to counter the prosecution’s
more generic definition as “to derive service from.”The court supported the
broader definition, refusing to attribute to the Congress an intention that was
claimed to be unreasonable given the possibility of violence that weapons create
in any case (Smith v. United States, 508 U.S. 223, at 240; 1993). The argument from
the purpose of the law is extremely effective also if associated with an argument
aimed at excluding alternatives, such as the reductio ad absurdum. By claiming
that the intended interpretation is the only one that does not lead to absurd
results or contradictions with the purpose of the law, it is also supported by
denying all the alternatives (see for example United States v. Barber 360 F. Supp.
2d 784, at 788; 2005).
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9 Abductive arguments
Under this category of schemes fall the interpretative arguments called the
economic argument and the systematic argument, and the ancillary argument
from the completeness of the law.
a) Economic argument
This argument is also called argument from the non-repetitive legislator, as it is
based on the principle that the legislator cannot issue a useless statement of
law. This argument is used for destructive purposes, and excludes an interpreta-
tion of a statement of law that corresponds to the meaning of another, older or
hierarchically superior, statement of law. This argument is particularly effective
if the statements of law are issued by the same source. However, it is extremely
weak if the laws are on different hierarchical levels (statutes v. laws; laws v.
regional laws), as in this case repetition is extremely frequent. This criterion is
mirrored by the first canon of statutory interpretation, set out as follows
(Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466, at 472; 2011):
All language in the statute should be given full effect. Clinchfield Coal Co. v. Harris, 149
F.3d 307, 313 (4th Cir. 1998). “In interpreting a statute, we should strive to give effect to
every word that Congress has used”to avoid surplusage. Id. This concept represents
courts’“deep reluctance to interpret a statutory provision so as to render superfluous
other provisions in the same enactment.”
In the aforementioned case, for instance, the term “emergency services”was
defined as follows (United States Code, § 1396u-2(b)(2)(B):
In subparagraph (A)(i), the term “emergency services”means, with respect to an individual
enrolled with an organization, covered inpatient and outpatient services […]
According to this argument, the words “In subparagraph (A)(i)”limit the appli-
cation of the definition to the subparagraph mentioned, otherwise such a phrase
would be superfluous.
This type of reasoning can be mirrored by the scheme for reasoning from
best explanation (Walton 2002: 44):
Argumentation scheme 8: Reasoning from best explanation
PREMISE Fis a finding or given set of facts.
PREMISE Eis a satisfactory explanation of F.
PREMISE No alternative explanation E’given so far is as satisfactory as E.
CONCLUSION Therefore, Eis plausible, as a hypothesis.
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The different interpretation of a principle expressed in a different place, or
that is redundant, is a satisfactory explanation of a fact. It is a possible way of
explaining the superfluity of a statement of law or a specific phrase in it.
b) Systematic argument
This argument is grounded on the concept of legal system. The meaning of a
statement of law shall correspond to the meaning imposed (and not excluded)
by the legal system. Tarello points out that, due to the ambiguity of “legal
system”, the systematic argument is actually an umbrella term under which
several types of arguments are collected.
The first meaning is the place where the statements of law are collocated.
According to this meaning, a statement of law shall be interpreted according to
its order or place within a code. This argument actually corresponds to the
combination of the argument from best explanation (Argumentation scheme 8)
and the psychological argument. The place and disposition are considered as a
sign of an intention of the legislator, which is in its turn supported by a form of
argument from authority. For instance Guastini provides the following example
(Guastini 2011: 48–49). Article 49 of the Italian constitution reads as follows:
All citizens have the right to freely associate in political parties in order to contribute by
democratic methods to determine national policy.
How shall be the concept of “citizen”interpreted? According to the systematic
argument, such a term shall be analyzed within the whole constitution. On this
perspective, it falls within the category of the inviolable human rights, which are
governed by art 2:
The republic recognizes and guarantees the inviolable human rights, be it as an individual
or in social groups expressing their personality, and it ensures the performance of the
unalterable duty to political, economic, and social solidarity.
The inviolable human rights are extended to all human beings. Therefore, also
the right of association in political parties shall be not limited only to citizens.
The systematic argument can also correspond to the argument grounded on
a terminological consistency. According to a second interpretation of “legal
system,”it shall be considered as the set of concepts used by the legislator (in
a code, in an act). For this reason, based on the presumption that there is a rigid
correspondence between legal concepts and legal terms, if a term has a certain
meaning in a statement of law, such a term shall be interpreted as having such a
meaning in all the statements of law in which it appears. This type of reasoning
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can be explained by the case Healthkeepers, Inc. v. Richmond Ambulance Auth.
(642 F.3d 466, at 472; 2011), in which the concept of “emergency services”was
defined in a paragraph, but the definition provided was limited to its use in a
previous paragraph. According to the systematic argument, such a definition
shall be applied also for all the uses within the statute. In this case, in parti-
cular, the systematic argument is reinforced by an argument from absurd con-
sequences (ibidem):
Here, were emergency services given two different meanings in two parts of the statute,
there would be inconsistencies in its application to various services.
The third meaning of “system”corresponds to the whole set of legal concepts.
However, since legal concepts are often conflicting with each other, this argu-
ment is often weak (Tarello 1980: 378).
c) Ancillary argument: Argument from the completeness of the law
This argument is ancillary, in the sense that it supports the need for an inter-
pretation, without providing it. It is based on the idea that the legal system is
complete and without gaps and it is aimed at inferring, from the lack of a
specific rule governing a case, the existence of a generic one attributing to
such a case a legal qualification (a subtype of argument from best explanation,
see Argumentation scheme 8). This argument is grounded on the fact that it is
impossible to repeat a rule governing a specific category of individuals and a
specific behavior and attributing any legal qualifications to such an individual.
For this reason, if no legal qualifications are attributed to a certain behavior,
then it is possible to conclude that there is a rule governing such behavior. This
argument is used to reject any arguments leading to the conclusion that if a
specific behavior is not governed by a specific rule, then no legal qualification is
attributed by law to such behavior.
10 Conclusion
In this paper we have shown how it is possible to translate the arguments of
interpretation into quasi-formal patterns of argument, i. e. the argumentation
schemes. By identifying the semantic and logical structure of the prototypical
inferences used to support the interpretation of a source statement, it is possible
to reduce the arguments of interpretation to six argumentation schemes (as
preliminarily shown in Macagno et al. 2014), the scheme for argument from
78 Fabrizio Macagno and Douglas Walton
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lack of evidence, the scheme for argument from analogy, the scheme for argu-
ment from authority (including the scheme from a “democratic”authority, i. e.
popular opinion), the scheme for argument from consequences (including the
argument from values), the scheme for practical reasoning, and the scheme for
abductive arguments. Arguments from interpretation are subtypes of these
generic patterns, each representing a specific characterization of the semantic
principle underlying the use of the scheme. The summary of this translation can
be diagrammed as shown in Figure 2 below.
This correspondence between interpretative arguments and argumentation
schemes can be important for several reasons. First, it provides a common
vocabulary, which can be shared in the fields of law, argumentation theory,
artificial intelligence, and pragmatics (Macagno et al. 2017) for referring to
Figure 2: The arguments of interpretation.
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maxims usually named differently in the various common law or civil law
traditions or schools. Second, it is crucial for assessing the grounds of statute
interpretation (formalized in artificial intelligence, see Bench-Capon and
Prakken 2010; Gordon 2010; Verheij 2003) and detecting the potential critical
dimensions of each construction. Third, schemes can be further classified,
providing tree-models that allow the interpreter to select the most suitable
argument by means of disjunctive questions (Macagno and Walton 2015;
Macagno 2015b; Walton et al. 2016: 57), depending on the type of conclusion
the interpreter intends to pursue (or the interpretive text advocates). But, as we
have shown what is also important is the categorization of the maxims of
judicial interpretation by the types of reasoning that justify their application.
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