INTRODUCTION:
The study of legal argumentation draws its data, assumptions and methods from disciplines such as legal theory, legal philosophy, logic, argumentation theory, rhetoric, linguistics, literary theory, philosophy, sociology, and artificial intelligence. One of the main incentives for the growing interest in legal argumentation has to do with changing views on the tasks of the judge. In the 20th century, ideas about the tasks of the legislator and the judge have changed. Because the legislator cannot foresee all possible cases and new developments in society, he must, out of necessity, restrict himself to a general formulation of rules. As a result of this, legal rules are open to interpretation. In a given case rules can be indeterminate. Therefore, as H. L. A. Hart puts it in The Concept of Law[1], the nerve of legal reasoning is not subsumption (minor and major premise) and the drawing of a syllogistic conclusion, but the reasoned interpretation of problems while applying legal rules.
OBJECTIVES OF LEGAL ARGUMENTATION:
The general objective of legal argumentation theory is to establish how arguments can be analyzed and evaluated adequately. In legal argumentation theory, criteria are developed for determining when the argumentation put forward as a justification is acceptable according general and legal standards of acceptability. So, the study of legal argumentation has a normative and a descriptive dimension. This means that on the one hand a philosophical ideal of reasonableness must be developed and, starting from this ideal, a theoretical model for acceptable argumentation. On the other hand, argumentative reality must be investigated empirically, that is, from a case-to-case basis.
LEGAL REASONING:
This phrase is made up of two words “legal” and “reasoning.” Reasoning is the application of common sense to solve problems which arise on a day-to-day basis. When this reasoning is applied to legal issues, or matters settled in the courts, it takes on a different dimension. When this method is followed, courts end up creating precedents, which are decided cases on certain points of law, and which are used by courts in the future to solve issues or disputes on similar questions of law. In other words, the basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case.
This method has some value and advantages to it, such as:
- It saves time,
- It provides some certainty or acts as a guiding example, and
- It has persuasive value.
The point of legal reasoning is to make unclear rules clear. Rules are unclear because they have not been tested by society and situations within society. If rules were already concrete and unchangeable, then order would be impossible to attain. On serious controversial questions, it makes it possible to take the first step in the direction of what otherwise would be forbidden. The mechanism is indispensable to peace in a community[2].
[To be continued in Part II.]
[1]H. L. A. HART, THE CONCEPT OF LAW (Oxford University Press, 3rd ed. 2014).
[2]Edward Hirsch Levi, An Introduction to Legal Reasoning, 15 UNIVERSITY OF CHICAGO LAW REVIEW 501, 501-502 (1948).
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