Legal Argumentation Theory and the Concept of Law

Abstract

There has been wide recognition over the last three decades that argumentation plays a pivotal role in shaping the law, since practically any stage of what is ordinarily considered the legal domain involves recourse to reasoning.¹ Legal scientists put forward interpretive statements: they propose what they see as reasonable interpretations of laws and defend these interpretations with arguments. Both of these tasks require reasoning. Lawyers, when they bring cases to court, must do more or less the same (even if the aims here are more specific and concrete): they interpret general norms and precedents, qualify concrete cases and offer reasons in support of their conclusions. Judges decide cases, an activity which makes it necessary to find and sometimes reconstruct the rule of law, interpret rules and apply them to concrete circumstances, weigh principles, settle conflicts between norms encased in the same legal order, follow precedents, ascertain and qualify facts, determine the most reasonable solution to the case at hand, and put forward justifications for their decisions. All such operations are argumentative. And lastly, in a constitutional democratic state the legislators, too, will tend to offer reasons backing their deliberations, so as to make them more easily acceptable to the people they govern. In doing so even the legislators accept to take part in the game of argumentation.