Reframing judicial proof: Insights from dialectical argumentation theory

Abstract

Judicial proof can be reinterpreted as a dynamic process of dialectical argumentation, based on modern argumentation theory and situated within the adversarial legal framework. It reflects the dialogical nature of reasoning, where plaintiffs and defendants present supporting arguments, challenge opposing claims through counterarguments and engage in interactive exchanges to persuade the adjudicator. The adjudicator carefully evaluates these arguments to ensure they meet established standards of proof and to determine whether the burdens of production and persuasion have been satisfied. This process develops through distinct phases: constructing arguments during evidence presentation, interacting with arguments during cross-examination and evaluating arguments during closing arguments. By drawing on minimal rationality theory, this study highlights that rational fact-finding emerges not from rigid probabilistic methods but from the structured interplay of arguments and counterarguments that characterises adversarial proceedings. This reconceptualisation clarifies the rational, explanatory and dialogical aspects of judicial proof, offering both a stronger theoretical understanding of its logical structure and practical insights into how adversarial processes ensure fairness and accuracy in fact-finding.