Indicators of obiter dicta. A pragma-dialectical analysis of textual clues for the reconstruction of legal argumentation
Author: Plug, J.
Source: Artificial Intelligence and Law, Volume 8, Numbers 2-3, September 2000 , pp. 189-203(15)
Abstract:The question as to whether or not an argument is additional may be decisive in the evaluation of judicial decisions. It is, however, often difficult to distinguish between arguments that are additional ( obiter dicta) and arguments that are not (ratio decidendi). This paper will focus on two problems concerning this distinction: the characterization of obiter dicta and their identification. A pragma-dialectical approach to argumentation will be the framework in which these problems will be addressed. Its insights into dialogical aspects of argumentation will be used to characterize obiter dicta. And its assessment of linguistic clues for the recognition of argumentation structures will be used for the identification of obiter dicta. Problems related to the identification of obiter dicta will be illustrated through an analysis of decisions in which the expressions anyway, for that matter and if only because are considered as indicative of obiter dicta.
Document Type: Regular Paper
Affiliations: Erasmus University Rotterdam, Law Faculty
Publication date: September 2000