Abstract
The central question in the work of Robert Alexy is how normative statements, such as legal decisions, can be justified in a rational way. Alexy considers the process of justification of normative statements as a practical discussion or ‘practical discourse’ and the process of justification of legal decisions as ‘legal discourse’.1 Since a legal discussion in which legal norms are defended is a specific form of general practical discourse, a theory of legal argumentation should be founded on a general theory of this kind.
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References
Alexy takes the distinction between practical discussions and theoretical discussions from Habermas. For a discussion of this distinction, see chapter 6 of this book on Habermas.
The formulation of Alexy’s rules is taken from the English translation (Alexy 1989) of the original German version of the book (Alexy 1978).
See Lorenzen and Schwemmer (1973:115).
Rüssmann (1979:113) points out a similarity between rule 5.1.3 and Rawls’ (1971) basic prescription. Rawls argues that the participants should go back to a hypothetical situation in which they do not know which position in the conflict they occupy, thus choosing the solution which everyone agrees to be best.
See Alexy (1991:412–417) in an afterword to the second edition of his book.
See Alexy (1991:413).
See Aarnio, Alexy, Peczenik (1981:266–267). For the distinction between rules and principles, see Alexy (1979b).
See Aarnio, Alexy, Peczenik (1981:268).
For a critique of these modes of justification see Weinberger (1983:187–188).
In Alexy (1981:186) and in Aarnio, Alexy and Peczenik (1981:274) Alexy distinguishes four different procedures: a procedure for practical discourse (PP), a procedure for legal discourse (P), a procedure for establishing positive legal norms (Tx), and a procedure for legal proceedings
Cf. MacCormick’s distinction between deductive and second-order justification.
Alexy (1980b) considers this argument scheme as a variant of the so-called legal syllogism.
See Alexy (1980b:190).
See Alexy (1980b) for an example of a reconstruction with the aid of the scheme of the internal justification and external justification.
(J.1.2) still is a simple form, because it is not specified how more complex forms of conditions of application or more complex forms of legal consequences should be reconstructed. Alexy (1980b:193) indicates that in this logical form the structure of the legal consequence is not specified. A more specific form can be formulated by changing premise (1).
See Alexy (1989:222–223).
See Alexy (1989:229).
For empirical arguments and general practical arguments Alexy adduces no specific rules, but refers to the rules of general practical discourse.
See Alexy (1989:243–244).
Cf. MacCormick’s example of consequentialist argument, given in chapter 7 of this book.
See Alexy (1989:289).
See Alexy (1989:218–220).
See Alexy (1989:220).
See Alexy (1981:187–188), Aarnio, Alexy and Peczenik (1981:278).
Cf. Weinberger (1983:203) who puts forward the same kind of criticism.
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© 1999 Springer Science+Business Media Dordrecht
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Feteris, E.T. (1999). Alexy’s Procedural Theory of Legal Argumentation. In: Fundamentals of Legal Argumentation. Argumentation Library, vol 1. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9219-2_9
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