Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions

Dordrecht, Netherland: Springer Verlag (2017)
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Abstract

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values.

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Chapters

Epilogue: Main Trends in Research of Legal Argumentation

Research of legal argumentation concentrates on the justification of judicial decisions. The central question is how legal decisions can be justified in a rational way and what the soundness conditions are that such a rational justification should meet. In various disciplines, theories of legal argu... see more

MacCormick’s Theory of the Justification of Legal Decisions

In his theory of legal justification Neil MacCormick tries to formulate a solution for one of the central problems in modern legal theory. He explains how, in so-called hard cases in which a judge cannot rely on a generally accepted existing rule, a legal decision can be justified rationally. MacCor... see more

Habermas’s Discourse Theory and the Rationality of Legal Discourse

This chapter discusses the relation between Jürgen Habermas’s discourse theory and the rationality of legal discourse. In his discourse theory, Habermas sets out the conditions a rational discussion is required to meet. In the legal part of his theory on argumentation, Habermas describes how the rat... see more

Peczenik’s Theory of Legal Transformations and Legal Justification

In his theory of legal transformations, Peczenik tries to answer the question of how a legal decision can be justified rationally. To justify a legal decision, according to Peczenik, it must be shown that the decision can be justified, not only on legal grounds, but also on general rational grounds.... see more

The Logical Approach of Legal Argumentation

In a logical approach of legal argumentation the central focus is on the role of formal validity as a criterion of rationality for legal argumentation. Various logical systems have been developed to analyse and evaluate legal argumentation. This chapter explains the role and the importance of formal... see more

Perelman’s New Rhetoric

This chapter discusses Perelman’s New Rhetoric and its application in a legal context in the form of a legal logic. In his New Rhetoric Perelman describes the argumentative techniques a speaker can use to convince his audience. In his application of the general New Rhetoric in his legal logic, Perel... see more

The Pragma-Dialectical Approach of Legal Argumentation

This chapter gives an overview of the pragma-dialectical approach to legal argumentation. The chapter provides a summary of the pragma-dialectical theory of argumentation and describes developments in the application of the theory to the legal context. It characterizes legal justification as an argu... see more

Legal Argumentation and Legal Interpretation

As an introduction to the discussion of theories of legal justification in the following chapters, this chapter discusses the central topics in the literature on interpretation and application of legal rules in particular, and the law in general. The central focus of this introduction is on the disc... see more

A Survey of Approaches and Studies of Legal Argumentation in the Context of Legal Justification in Different Legal Systems and Countries

In the preceding chapters, several of the most important theories of legal argumentation have been examined. Apart from these theories in which a more or less complete account of legal argumentation is developed, there have also been studies of legal argumentation in which the development of a theor... see more

Toulmin’s Argumentation Model

This chapter discusses Toulmin’s argumentation model and its application in a legal context. In the introduction of his argumentation model, Toulmin uses the legal process to show that the acceptability of practical argumentation does not depend on logical validity. Comparing the process of practica... see more

Aarnio’s Theory of the Justification of Legal Interpretations

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aar... see more

Alexy’s Procedural Theory of Legal Argumentation

This chapter discusses Alexy’s theory of legal argumentation. The central question in the work on legal argumentation 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 pr... see more

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Eveline Feteris
University of Amsterdam

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