par Ferry, Victor 
Référence International journal of law, language & discourse, 2012/1, 2, page (143-155)
Publication Publié, 2012-03-30
Référence International journal of law, language & discourse, 2012/1, 2, page (143-155)
Publication Publié, 2012-03-30
Article révisé par les pairs
| Résumé : | As an instance of the typical interaction between general argumentation theory and judicial argumentation practice, this paper uses the dissociation of notions, a concept elaborated by the former, possibly as from observations on the latter, to reexamine two well-known common law cases, in which the judges justify an interpretation grounded on the spirit of the law as opposed to a narrow interpretation of precedents. The author compares two current rival theoretical perspectives on the dissociation of notions. The first is inherited from Aristotle’s Sophistical Refutations and the second from Aristotle’s Rhetoric. It is argued that choosing Aristotle’s Rhetoric as a standpoint offers a better insight into the rationality of common law decisions. The two cases are Donoghue v. Stevenson (1932), in which moral liability and legal liability are dissociated, and Hedley Byrne &Co Ltd v Heller & Partners Ltd (1963), in which apparent logic and deep logic are distinguished. |
