INTRODUCTION

ARGUMENTATION AND LEGAL JUSTIFICATION

Argumentation plays an important role in the Law. Someone who presents

a legal thesis is expected to put forth arguments to support it. A lawyer who
brings a case to court must justify his or her case with arguments. The judge
who takes a decision is expected to support this decision with arguments. I
When a legislator introduces a bill in parliament, he is expected to support
his proposal with reasons. Even legal scholars are expected to justify their
opinions when presenting them to their colleagues. Everybody who advances
a legal standpoint and wishes this standpoint to be accepted by others, will
have to present justifying arguments.
The acceptability of a legal thesis is dependent on the quality of the
justification. The standpoint of a judge is given in his or her decision. This
decision must be justified adequately to make it acceptable to the parties
involved as well as to other judges and the legal community as a whole. One
of the important questions is which standards of legal soundness the
argumentation should meet. Is it enough that the judge mentions the facts
of the case and the legal rules, or does he also have to explain why the legal
rules are applicable to the concrete case? How can the interpretation of a
legal rule be justified acceptably? What, in the context of legal justification,
is the relation between legal rules, legal principles and general moral norms
and values? And are there any special norms for a judge's decision, when
compared with the justification of other legal positions?
This book will describe how argumentation theorists, philosophers, legal
theorists, and legal philosophers deal with these questions. Ideas about
standards of soundness for legal argumentation, developed by the most
influential authors in the field, will be examined. The central question is:
what are the methods that have been developed for the analysis and
evaluation of legal argumentation?

1. In some legal systems, there are statutory provisions which define the required elements
of a publicly justified decision. For instance, under section 121 of the Dutch Consitution a
legal judgement must specify the grounds underlying the decision. In Germany s. 313 (I) of
the Code of Civil Procedure (ZPO) says that the decision has to contain the operative
provisions of the decision, the facts, and the reasons on which the decision is based. In Sweden,
according to the Code of Procedure. a judgement of a court must contain a statement of claim
and defence, the issues as presented to the court, the reasons given by the court for its order
or decree. and the order or decree itself. For a description of conventions and styles of justifying
legal decisions in various countries see MacCormick and Summers (1991).

E. T. Feteris, Fundamentals of Legal Argumentation

© Springer Science+Business Media Dordrecht 1999
2 INTRODUCTION

To assess the merits of legal argumentation, certain norms of rationality are

presupposed on the basis of which it can be established whether an argument
is sound. To establish this, it is necessary for the theorist to have an
adequate instrument for analyzing the argument. In argumentation theory
and in legal theory alike, considerable attention is paid to these issues.2
The general objective of argumentation theory is to establish how
arguments can be analyzed and evaluated adequately. Attention is also given
to the practical application of theoretical insights. In argumentation theory,
criteria are developed for determining when an argument can be considered
both sound and rational. The theoretical focus is on both 'ideal' norms for
sound arguments and criteria of acceptability which apply in legal practice.
Argumentation theorists treat the Law as an institutional context, and try
to discern the universal and special legal criteria that regulate its operation.
One central question in legal theory is: when can a legal judgement
considered to be rational. This question, too, concerns the universal and
special legal criteria of rationality that a legal judgement should meet. Legal
theorists consider legal argument as a specific form of general argumentation.
Therefore, they often bring to bear principles from other disciplines such
as logic, philosophy oflanguage and argumentation theory, which investigate
standards of rational argument. Thus, to a certain extent, legal theorists and
argumentation theorists are interested in the same questions.
The aim of this book is to survey the principle findings of argumentation
theory and legal theory as they affect the analysis and evaluation of legal
arguments, and to examine the criteria of rationality underwriting such
evaluations.

STRUCTURE OF THIS BOOK

In surveying the main ideas of authors who have dealt with legal argument,
we shall proceed as follows: we will examine what their exact ideas are and
how these ideas are related to the central problems of analyzing and
evaluating legal argument. We will investigate how their proposals are useful
and whether certain additions or specifications are required.
First, the book investigates the views of authors who approach legal
argument from a logical or generalized perspective, or have illustrated
general claims about argumentation with legal examples. Second, it reviews
the work of authors who deal with legal argument from the perspective of

2. In Continental law, normally the term 'legal theory' is used to refer to the discipline in
which the standards of rationality of legal decisions are studied. In Anglo-American law, the
term 'jurisprudence' is normally used.