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legal argumentation - Coggle Diagram

- - - - original
      - current
    - - ordinary
        
        dictionairies
        
        inferences about common usage
        
        intuition
      - technical
    - - constraint of the judge
        
        vital in areas of law in which essential values are at stake
        
        liberty
        
        property
    - - often not sufficient
        
        ambiguous
        
        multiples depending on which type
      - conclusion contrary to common sense reasonablesses and justice
  - - - historical
      - current
        
        counter-factual
      - rational
      - just
    - - semantic
        
        meaning of word
      - teleological
        
        aim pursued
      - systematic
        
        place within the system
    - - real (so a bunch of people)
        
        who is?
        
        what are the relevant intentions?
        
        which level of intention?
      - counterfactual
        
        risk of being the projections of judge's opinions
        
        difficult to establish what would have happened
        
        risk for the separation of the power
  - - - subjective
      - intersubjective
      - objective
    - - identify them (risk of arbitrarity)
      - relevant purpose?
        
        immediate
        
        further
        
        ultimate
      - conflicting purposes
  - - - context
        
        system in which the provision is placed.
      - co-text
        
        remainder of the normative act or provision to which the provision or the expression belongs
  - - - if and only if p then q
        
        no p then no q
    - - if p then q
        
        no p then insufficient legal reason to extend the regulation
  - - - argumentative burden to the court
    - - persuasive precedents
      - binding in the weak sense
      - binding in the strong sense
    - - settled case law
      - interpretative orientation
        
        informally bound
- - - - what are gaps
        
        they depend on the interpreter
      - how to determine the ratio
        
        teleological argument
      - analogy or a contrario
      - analogy or extensive interpretation
    - - ratio legis