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See detailInterpretive Interactions among Legal Systems and Argumentation Schemes
Malerba, Alessandra UL

Doctoral thesis (2017)

This thesis is about argumentation schemes that help to deal with interactions between national and foreign canons of interpretation in private international law cases. In fact, many legal orders, like ... [more ▼]

This thesis is about argumentation schemes that help to deal with interactions between national and foreign canons of interpretation in private international law cases. In fact, many legal orders, like Italy, require that, in conflict of laws disputes, courts apply the relevant foreign law using canons of interpretation and rules of application of the original foreign system. Our research hypothesis is that, in interpreting the foreign rule, domestic courts incur interpretive divergences of many kinds among the involved legal systems. Foreign law interpretation may result in linguistic and/or conceptual misalignments, in normative and/or interpretive gaps, and in specific incompatibilities between inner and foreign canons of interpretation. By focusing on interpretive conflicts within one legal system, legal theorists and AI and Law scholars have not yet paid sufficient attention to the issue, even if pluralist logics and argumentation have been generally applied to legal pluralism and conflict of laws. The present study fills this gap in the literature: it explores the feasibility of a theory for arguing and interpreting in private international law contexts, providing an argument-based conceptual framework that encompasses plausible interpretive interactions. To this end, and after addressing the epistemic concerns foreign law raises for domestic judges, the thesis gives a definition of cross-border interpretive incompatibilities and proposes argumentation schemes to reason with interpretive canons coming from different legal systems. An illustrative list of critical questions is used to evaluate the correctness of such interpretive reasoning. Lastly, the thesis presents the first formal developments of the study, based on the concept of meta-argumentation. It is possible to detect two main contributions to knowledge. First, this work identifies the components of foreign law interpretation, an interpretation activity with significant practical implications for legal systems today. In so doing, it also indirectly contributes to better understand interpretation at large. Secondly, its argument-based analysis paves the way for further formal applications in the domain of AI and Law. [less ▲]

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