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Chapter 8. A rhetorical approach to legal reasoning

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Abstract

My article provides a short summary of the main tendencies in legal argumentation in Italy and a brief introduction to the rhetorical perspective adopted by CERMEG. The years after the end of the WW 2 saw the advent in Italy of a legal-theoretical account developed by N. Bobbio exclusively focusing on the normative nature of law and on a &#8216;syllogistic&#8217; paradigm of legal reasoning. Nevertheless, Bobbio himself, when editing Perelman&#8217;s studies on argumentation during the 1960s, implicitly revealed a certain difficulty in the relationship between the (normative) <i>authority</i> and the (logical) <i>rationality</i> of a judgment. In the s.c. &#8216;post-positivistic&#8217; period, among Bobbio&#8217;s scholars, there have arisen some quite various approaches to legal reasoning. In constant debate with these ones, but from different starting points, a research center on legal methodology (basically inspired by the thinking of F. Cavalla and strictly tied to the legal practice) has taken place in the University of Trento. It proposes an argumentative model based on classical rhetoric. This theory emphasises the metaphysical foundations of the rational operations performed at trial and derives from those some important consequences in the field of legal ethics and practice.

References

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