Reasoning by Consequences: Applying Different Argumentation Structures to the Analysis of Consequentialist Reasoning in Judicial Decisions

Abstract

Out of the different theoretical proposals involved in setting directives and constructing models for rationally controlling judicial decisions, some proposals pay particular attention to consequentialist arguments. This paper analyses the diverse approaches to consequentialist arguments given by MacCormick’s theory, Wróblewski’s theory and Feteris’s pragma-dialectical theory, with the purpose of, firstly, comparing, at theoretical level, the strengths and weaknesses when arguing by consequences is at stake. For testing the scope of the proposals, the paper will, secondly, use the selected theories in a study of the consequentialist arguments used by a ruling of the Chilean Constitutional Court. The theoretical comparison, together with the outcomes to which the analysis of judicial argumentation leads, will shed light on the capacity and efficacy of these tools in guiding the rational construction and evaluation of judicial reasoning.