[Continued from Part I.]
APPROACHES TO ARGUMENTATION IN LAW:
Argumentation plays an important role in law. Someone who presents a legal standpoint and wishes this standpoint to be accepted by others will have to present justifiable arguments. 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.
There are many approaches of legal argumentation which help in legal reasoning, such as:
- The Logical Approach:
From a logical perspective, it is a necessary condition of the acceptability of a legal justification that the argument underlying the justification be traceable as an argument which is a logically valid one (another condition is that the reasons broughtforward as a justification are acceptable according to legal standards). Only if an argument is logically valid, does the decision (the conclusion) follow from the legal rule and the facts (the premises).
The requirement of logical validity as a standard of soundness of legal argumentation is, in the view of some authors, related to the requirement that a legal decision should be based on a general rule. This requirement is also called the ‘principle of generalizability’ or the ‘principle of universalizability’. When someone claims that a legal decision is based on a general rule, he or she claims that the same solution should be chosen in similar cases.
2. The Rhetorical Approach:
Contrary to the logical approach and its emphasis on formal aspects of legal argumentation, this approach emphasizes the content of arguments and the context-dependent aspects of acceptability. In this approach, the acceptability of argumentation is dependent on the effectiveness of the argumentation for the audience to which it is addressed.
Perelman describes the starting points and argumentative techniques used in law to convince an audience of the acceptability of a legal decision. He describes how judges use certain generally accepted starting points in justifying their decisions. Examples of such starting points are legal principles such as those of fairness, equity, good faith, freedom, etc. Argumentation schemes, such as analogy, enable a judge to win the assent of others.
3. The Dialogical Approach:
In the dialogical approach legal argumentation is considered from the perspective of a discussion procedure in which a legal position is defended according to certain rules for rational discussion. These rules include laws, statutes and other legal enactments. In this approach the rationality of the argument depends on whether the procedure meets certain formal and material standards of acceptability. In a dialogical approach, discussions are also required to accord with certain procedural criteria of rationality.
There are certain requirements which need to fulfilled to create a cogent argument. The authors think that argumentation must be reconstructed as a chain of logically valid arguments. Most authors relate the requirement of logical validity to the moral requirement of universalizability: similar cases must be treated in a similar way. To decide whether an argument is acceptable according to legalstandards,the first check is whether the argument is a valid rule of law.
The rules of valid law are considered to be a specific form of shared legal starting points. To check whether an argument is a rule of valid law, and thus a shared starting point, a testing procedure must be carried out which establishes whether a certain legal rule can be derived from an accepted legal source. Legal sources such as statutes, legal decisions, legal dogmatic and legislative preparatory materials are considered to be specific kinds of sources which may be used for the evaluation of legal argumentation.
4. The Pragmatic-Dialectical Approach:
In a pragmatic-dialectical perspective, legal argumentation is considered part of a rational critical discussion aimed at the resolution of a dispute. The aim of this approach is to develop a model for the analysis and evaluation of legal argumentation as a specific, institutionalized form of argumentation. The pragmatic-dialectical approach to legal argumentation is based on the ideas of van Eemeren and Grootendorst developed in their pragmatic-dialectical theory of argumentation in various book and articles, among which Argumentation, communication, and fallacies (1992) and A systematic theory of argumentation:the pragma-dialectical approach (2004) are notable.
[To be continued in Part III.]
*Final year law student, Symbiosis Law School, Hyderabad, Symbiosis International (Deemed University), Pune.