Argumentation maps of judicial decisions: building a model

• Ano de defesa: 2017
• Autor(a) principal: Luccas, Victor Nóbrega
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: eng
• Instituição de defesa: Biblioteca Digitais de Teses e Dissertações da USP
• Palavras-chave em Português: Argument scheme; Artificial intelligence and law; Decisão judicial; Inteligência artificial; Judicial review; Legal argumentation; Lógica do Direito; Princípio da proporcionalidade; Proportionality analysis; Revisão judicial; Teleological reasoning; Teoria do Direito
• Link de acesso: https://www.teses.usp.br/teses/disponiveis/2/2139/tde-26022021-172451/

This dissertation contributes to answering the question of how to decide which legal argument is stronger by advancing an in-depth study of proportionality analysis, grounded in an argument scheme approach to investigate rules of legal argumentation. Such an approach is based on the combination of tools of argumentation theory (not only argument schemes, in spite of the name) with accounts of legal theory, and their application to real, preferably hard, cases. Such a methodology leads to the creation of argumentation maps that represent the reasoning of judicial decisions as an argumentative dialogue. This work starts by presenting the basic elements of a model of argumentation: a knowledge base, inference structures, preferred extensions (related to attacks and burdens of proof), and a dialogue protocol containing rules of argumentation, including procedural rules and those related to all other elements. Then, it provides a detailed analysis of the concepts of rules of inference, attacks and burdens of proof, in order to define argument schemes. A methodology to the investigation of argument schemes is detailed and conventions on argument maps are established. Arguments related to the application of legal norms and use of precedents are briefly discussed. Proportionality analysis is presented based on Robert Alexy\'s theoretical account, and explained in contrast to a wider background of teleological reasoning and judicial review. Argument schemes for proportionality analysis are developed. An argument map is built by applying the aforementioned argument schemes to the case of S.A.S. x France (Application 43835/2011, decision 1st July 2014), adjudicated by the European Court of Human Rights. Based on the case discussion, the argument schemes are reviewed and a refined model of proportionality analysis is presented.