Eveline T. Feteris
University of Amsterdam, The Netherlands
Strategic manoeuvring with unacceptable consequences and the intention of the legislator: manifestations of strategic manoeuvring in the justification of legal decisions
ABSTRACT: The author gives an analysis of the strategic manoeuvring in the justification of legal decisions from a pragma-dialectical perspective by showing how a judge tries to reconcile dialectical and rhetorical aims. On the basis of an analysis and evaluation of the argumentation given by the US Supreme Court in the famous Holy Trinity case, it is shown how in a case in which the judge wants to make an exception to a legal rule for the concrete case tries to meet the dialectical reasonableness norm by seeing to it that the standpoint is defended according to the requirements of the legal burden of proof and how he tries at the same to me to be rhetorically convincing for the legal audience by presenting the decision as a choice that is in line with the preferences of the legal audience.
KEYWORDS: legal argumentation, strategic manoeuvring, burden of proof, legal interpretation, critical discussion, rhetorical strategy, precedent, obiter dictum