Foundations of Legal Negotiations. Studies in the Philosophy of Law vol. 8 - ebook

Jerzy Stelmach, Bartosz Brożek

Preface

The present volume constitutes an attempt to go beyond the stereotypical understanding of negotiations in general, and legal negotiations in particular. The common approach is to treat negotiations as either a purely philosophical or a purely psychological phenomenon. On the former view, negotiations are connected with some chosen philosophy of persuasion; on the latter – they entirely belong to the domain of psychology. Meanwhile, a more careful analysis of the ontological and epistemological foundations of negotiations reveals that the phenomenon in question also has other dimensions, e.g. logical or economic. One of the goals of the essays collected here is to illuminate all the mentioned and other aspects of legal negotiations.

The volume consists of ten chapters. The first essay, Wojciech Załuski’s “Two Concepts of Formal Justice”, is devoted to the analysis of two approaches to formal justice – understood as the requirement of the correct application of rules on the one hand, and as a rule regulating the way of dealing with unequal cases on the other. Both concepts are relevant for any discussion concerning axiological controversies in any type of negotiations. The next chapter is Marta Soniewicka’s “Bargaining Values: From a Market Economy to a Market Society”. It describes the tension between freedom, equality and fairness, and constitutes a perfect point of departure for discussing two different approaches to legal negotiations: economic and fairness-based.

The problem of time is rarely addressed in the literature pertaining to legal negotiations. Jolanta Jabłońska-Bońca’s essay “Tempus fugit” is an attempt to fill this gap. The author addresses the problem of time in legal discourse and in the communication processes in general, and, on the basis of those considerations, analyzes in detail the question of time in legal negotiations. Wojciech Cyrul, in his “Legal Negotiations in the Intercultural Context”, provides a cultural and sociological perspective on negotiating. He addresses the question of negotiation models, negotiation culture and the cultural limitations of legal negotiations. The paper constitutes an in-depth analysis of the external aspects of the phenomenon of negotiating within varying legal contexts.

A different problem is addressed in the following two essays, Łukasz Kurek’s “Legal Negotiations and the Theory of Mind” and Mateusz Hohol’s “To Frame an Opponent. Cognitive Science and (Legal) Negotiations.” Both authors attempt to look at legal negotiations from the perspective of psychology and cognitive neuroscience. Łukasz Kurek describes the variety of mindreading mechanisms and considers the role of mindreading in the process of negotiating. Mateusz Hohol, in turn, analyzes how the so-called framing theory may help us in understanding some phenomena connected to legal negotiations.

The next paper, Eglė Maurice’s “Effective Arguments for the Legal Negotiator: Insights from Argumentation Theory”, concentrates on identifying the key legal arguments which may play an important role in negotiations. Towards this end, she considers various argumentation theories, from the topic-based to the procedural. In his “The Logic of Legal Negotiations”, Bartosz Brożek claims that in order to identify a logic suitable for the reconstruction of the process of negotiations one needs to go beyond classical logic. He argues further that typical paraconsistent logics are also insufficient to account for the argument structure of negotiating, and opts instead to use the so-called defeasible logic. In the next essay, “Meaning Negotiation in Legal Reasoning and Interpretation”, Antonino Rotolo proposes a framework for reconstructing the arguments supporting the restrictive and extensive interpretations of legal provisions. The framework is then applied to model metaargumentation over the legal meaning of terms occurring within legal provisions and used to show how negotiations may take place in this context and be formally captured. Finally, Jerzy Stelmach and Bartosz Brożek in their “Eristic methods in legal negotiations” argue that eristic is a fully legitimate negotiation method. They first formulate four arguments in defense of eristic: statistical, epistemological, axiological and ethical, and then attempt to describe the phenomenon of negotiation eristic.

We are fully aware that the present collection is not comprehensive. The structure and fields of application of negotiation methods in law are connected to a number of other problems, such as legal-dogmatic issues. Nevertheless, we believe that the present volume represents an important contribution to the ongoing discussion concerning the role of negotiations in dispute resolution. We further believe that the essays collected here may be of interest not only to lawyers, but to anyone who in their research or professional practice take advantage of various methods of persuasion.

The present volume is an outcome of the research project “Models of Legal Negotiations – Structural Analysis and Fields of Application”, sponsored by the National Science Center. It is accompanied by two monographs: J. Stelmach, B. Brożek, The Art of Legal Negotiations, Wolters Kluwer, Warsaw 2012, and J. Stelmach, B. Brożek, Negocjacje, Copernicus Center Press, Kraków 2014.

Kraków, May 2014

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Zapraszamy do zakupu pełnej wersji książki

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