Law and Argumentation Theory. Theoretical Approaches to Legal Justification.

Eveline Feteris University of Amsterdam Harm Kloosterhuis Erasmus School of Law Rotterdam Draft 1 Introduction: argumentation and legal justification

In the past thirty years study law and argumentation has become an important interdisciplinary discipline. It draws its data, assumptions and methods from legal theory, legal philosophy, logic, argumentation theory, rhetoric, linguistics, literary theory, philosophy, sociology, and artificial intelligence. Scholars from various traditions have attempted to explain structural features of legal decision-making and justification from different points of view. One of the main incentives for the growing interest in legal argumentation has to do with changing views on judicial tasks. In modern legal systems a judge not only applies legal rules but also resolves interpretation problems and justifies his doing so in a reasoned decision. Although it is a part of the Rule of Law that legal decisions must be justified, explicit legal norms for this justification can hardly be found. One of the important problems in the study of legal argumentation is the question which standards of 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 acceptably justified? What, in the context of legal justification, is the relation between legal rules, legal principles and general moral norms and values? A second important problem is the question how to reconstruct real life argumentation in legal decisions in order to evaluate the justification. For instance when a judge resolves an interpretation problem in deciding a case, he can choose different types of interpretative arguments to justify his decision. Ideally, these arguments are recognizable in the justification of the legal decision. But in practice these arguments are not always presented explicit, clear and well ordered. The critical reader who wants to evaluate the argumentation must therefore solve a number of reconstruction problems in order to evaluate the argumentation.

Legal argumentation-theory has a descriptive and a normative dimension. It is descriptive in the sense that it gives a reconstruction that starts from arguments expressed in legal discourse and it is normative because the reconstruction is related to a model of acceptable justification. Given these two dimensions, five research components can be distinguished. The philosophical component attends to the normative foundation of a theory of legal argumentation. A central question is which criteria of rationality should be used in evaluating legal argumentation. In the theoretical component, models for legal argumentation are developed, in which the structure of legal argument and norms and rules for argument-acceptability are formulated. The reconstruction component shows how to reconstruct real life argumentation within the framework of a theoretical model. This reconstruction forms a basis for the evaluation of arguments. The empirical component investigates the construction and evaluation of arguments in actual legal practice. It establishes in which respects legal practice fits in or conflicts with theoretical models and examines how possible discrepancies might be explained. Finally the practical component considers how various results forwarded by the philosophical, theoretical, reconstruction, and the empirical components might be used in legal practice. Practical applications are methods for improving skills in analyzing, evaluating and writing legal argumentation. This chapter describes how researchers deal with these questions depending on their different points of view. Ideas about standards of soundness for legal argumentation and methods for reconstruction, developed by influential authors in the field, will be examined. In the sections 2, 3 and 4 we will discuss the three dominant traditions in legal argumentation-theory: the logical, the rhetorical and the dialogical approach. In section 5 we conclude with some questions for the agenda.

The logical approach

In modern scientific research to legal argumentation, the logical approach has the longest tradition. In this approach there are two criteria to evaluate legal argumentation. The first is material: the premises in the argumentation (facts, norms, interpretations of norms etcetera) must be acceptable. Secondly, the argumentation must be formally correct: the decision must rest on a logically valid argument. An example of a logically valid argument is: .
. . If someone acts unlawfully and the unlawful act causes damage to someone else, he is obliged to repair the damage which has been caused by the unlawful act (if p then q) A has acted unlawfully and the unlawful act has caused damage to B (p) Therefore: A must repair the damage (therefore: q)

The first two sentences in this example are the premises of the argument; the third sentence is the conclusion. Formal logic is based on the assumption that an argument of this form is always valid, regardless of the content of the premises and the conclusion. This valid argument form is called modus ponens:
.If p then q .p .Therefore: q

It is important to know what valid exactly means. In a valid argument of this form, it is impossible that the premises are true and that the conclusion is not true. In a valid argument, the acceptability of the premises guarantees the acceptability of the conclusion. A valid argument with acceptable premises is called a sound argument. The assessment of the truth or acceptability of the premises does not belong to the domain of logic. Logic is designed to assess the formal relation between the premises and the conclusion. Logical validity as a standard of legal rationality follows from the requirement that a legal decision must be based on a general rule. If a legal decision is shown to be based on a general rule, then it follows that a similar conclusion applies in similar cases. Logic is an instrument to assess whether someone has succeeded in showing that a decision must be accepted by a rationally acting audience. If someone agrees with the premises of a valid argument, he would be acting unreasonably by refusing the conclusion. Various logical systems have been developed for reconstructing various types of arguments. Syllogistic logic, propositional logic and predicate logic have been developed to analyze arguments consisting of statements which can be true or not true. Deontic logic is developed to analyze arguments consisting of normative statements or value judgements. 1 The oldest system of logic is that of syllogistic logic developed by Aristotle, which analyzes arguments called syllogisms. A syllogism consists of two premises (the major and the minor premise) and a conclusion, for example:
. . . All human beings are mortal (major premise) Socrates is a human being (minor premise) Therefore: Socrates is mortal (conclusion)

Lawyers often use this form of reasoning: they have to demonstrate that a specific case must be subsumed under a general rule. A syllogism can serve to bridge the gap between the general rule and the specific case. The legal rule is expressed in the major premise, while the minor premise

1.

For a survey of various logical systems see Gamut (1991) and Haack (1978).

demonstrates that a specific case falls under this rule. The conclusion then states that the predicate assigned to the cases to which the major premise applies, also applies to the case mentioned in the minor premise. An example of a legal syllogism is:
Legal rule (major premise) Specific case (minor premise) Conclusion Everyone who is summoned to court as a witness, is obliged to appear in court Mister A is summoned to court as a witness Mister A is obliged to appear in court

Since not all arguments can be analysed along syllogistic lines, different other logical systems have been developed. Propositional logic specifies how to distinguish the valid from the invalid forms of argument, using expressions such as if...then, and, or. A form of reasoning from propositional logic often used in law is the above mentioned modus ponens in which the expression if...then is used. Because legal rules can be taken to be a description of the conditions under which a particular legal consequence follows, an argument of the if...then-form can be used for reconstructing a legal argument. For example, clause 310 of the Dutch Criminal Code can be reformulated in the if...then-form:
If a person takes a good that, wholly or partly, belongs to another with the intention of appropriating it, he or she must be convicted for theft and imprisoned for a maximum term of four years.

By showing that the requirements for the application of the rule are fulfilled, it can be shown that the legal consequence must follow:
.If a person takes a good (...) then he or she must be convicted for theft (...) (if p then q) .The accused has taken a good (...) (p) .Therefore: the accused should be convicted for theft (....) (therefore: q)

Another logical system for analyzing legal arguments is predicate logic. The system of predicate logic is an elaboration of the system of propositional logic. In addition to arguments the validity of which depends on the meaning of terms such as if....then, predicate logic uses quantifying expressions such as any, all and some as well as predicates. An example of an argument reconstructed in the form of predicate logic is:

.Anyone who takes a good that, wholly or partly, belongs to another with the intention of appropriating it, must be convicted for theft and given a fine of the fourth category or imprisoned for a maximum term of four years .Mister A has taken away a good that, wholly or partly, belongs to another with the intention of appropriating it .Therefore: Mister A should be convicted for theft and imprisoned for a maximum term of four years

If we use symbols the reconstruction is as follows:

.(1)(x) (Tx ORx) .(2)Ta (3)ORa (1), (2)

In this formula, x is a variable which applies to a person. T is a predicate in which the conditions for applying the norm are expressed as a property of x. OR is a predicate which prescribes what x must do/whatmust be done with respect to x, and a is a name or description for a person. In the argument mentioned above, the deontic operator should is used. To reconstruct arguments in which expressions such as must, should etc., it is necessary to introduce a deontic operator. A logical system using such operators is called deontic logic. Such a system of deontic logic is an extension of propositional logic or predicate logic with deontic operators. Which logical system is the most suitable for reconstructing legal arguments? Authors specializing in legal logic differ in their views on the necessity of developing a specific deontic logic for the analysis of legal arguments. Some authors argue that normative expressions such as must and should can be defined by means of normative predicates. According to them, legal arguments can be reconstructed adequately in terms of a predicate logic. 2 A specific normative logic in which deontic operators are used, they say, is superfluous. Others are take the view that deontic logic in which normative expressions such as must and should are analyzed as separate logical constants, is more suitable for analyzing legal arguments in certain cases. 3 Although most legal arguments can be analyzed adequately by using

2.

See for example Tammelo et al. (1981), Fiedler (1966), Herberger and Simon (1989), MacCormick (1992:195199), Rdig (1971, 1972, 1976), von Savigny (1972), and Yoshino (1978,1981). See for example, Alexy (1980b:198-199), Kalinowski (1972), Koch (1980), Soeteman (1989) and Weinberger (1970).

3.

predicate logic, they prefer deontic logic for legal arguments. 4 Deontic logic forms a further extension of propositional logic and predicate logic, and can thus be used for the same forms of argument, but also for other forms. In a recently developed dialogical logic, various authors extend logical systems to make them more suitable for legal argumentation. Hage, Leenes, Lodder, Span, and Verhey developed a system of logic for arguments about legal rules. 5 Because a legal decision often involves a choice between rules, a logic is necessary for reconstructing a legal argument in which these choices can be expressed. In a reason-based system of logic arguments for or against a decision can be weighed. For example, Hage and Leenes describe how arguments from analogy can be analyzed. According to them, the process of weighing reasons for and against a conclusion always takes place in the context of a dialogue. Prakken also tries to develop a logical system for analyzing and evaluating legal argumentation from a dialogical perspective. 6) Because existing logical systems can only be used for the analysis in a monological context, Prakken develops a system to construct and compare arguments for opposite standpoints. He tries to establish which logical criteria can be developed for comparing legal arguments and which criteria are required to determine the status of an argument. These recent theories of logic developed in law and artificial intelligence are formal instruments for the analysis and evaluation of legal arguments. The material evaluation of the legal premises is done by means of legal criteria for weighing arguments. 7

The rhetorical approach

As a reaction to the logical approach and its emphasis on formal aspects, the rhetorical approach emphasizes the content of arguments and the context-dependent aspects of acceptability. The acceptability is dependent on the effectiveness of the argumentation for the audience to which argumentation is addressed.

4.

There are also authors such as Schreiner (1976) and Tammelo (1969, 1978) who are not completely against application of propositional logic or predicate logic, but who do not see the necessity of a specific deontic logic. See Hage (1991), Hage et al. (1992, 1994). See Prakken (1993). See Prakken (1993, 1997, 2007, 2008).

5. 6. 7.

Prominent representatives of the rhetorical approach are Perelmans new rhetoric, Toulmins argumentation model, and Viehwegs topical approach. All three authors have written especially about legal argument, and others have built on theis works. In Logique Juridique. Nouvelle Rhtorique (1976) 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, etcetera. In The Uses of Argument (1958) Toulmin employs examples drawn from the legal procedure to establish that argument-adequacy is not determined by formal logical validity. He shows that argument is field-dependent. An argument consists of a claim defended by means of data, a warrant and a backing. The acceptability of the content of the argument, however, depends on its subject matter and on the audience to which it is addressed. In An Introduction to Reasoning (1984) Toulmin together with Rieke and Janik gives a further elaboration of this model for the analysis of arguments in various contexts. In a chapter on legal argumentation, they adapt the procedure specifically to the analysis of legal argument. 8 In a topical approach to legal argument, Aristotles Topics is the starting point of theories for finding relevant arguments. In a legal context, arguments must be found which are based on general viewpoints (topoi) which can convince a legal audience. Examples of such legal topoi are general legal principles, such as those of fairness, of equity, etcetera. A prominent representative of a topical approach is the German legal theorist Viehweg. 9 Using topoi, arguments can be found and formulated which can be used for justifying a legal decision. 10 As a theory about legal argumentation, Perelmans work is the most sophisticated rhetorical approach. We therefore discuss his ideas in more detail in the next section.

3.1

Perelmans new rhetoric

In his new rhetoric, Cham Perelman describes how arguers convince others of the acceptability of argumentation. Perelman shares Toulmins view that the logical criterion of validity is inadequate for evaluating everyday argumentation which is why he proposes an alternative criterion. According to Perelman, argumentation is sound if it is acceptable to the audience addressed by the

8
9. 10.

Recently: Hitchcock, D.L., & B. Verheij (eds.) (2006). Arguing on the Toulmin Model. New Essays in Argument Analysis and Evaluation. Argumentation Library, Vol. 10. Springer, Dordrecht. For a critique with respect to Viehweg's theory, see Alexy (1989:20-24). Other authors working in a topical-rhetorical tradition which is based on Viehweg's ideas are Ballweg (1982), Esser (1979), Horn (1967), Schreckenberger (1978), Seibert (1980), and Struck (1977).

arguer. He analyses law as an important example of the new rhetoric. In Logique Juridique. Nouvelle Rhtorique (1976), he describes the starting points and argumentation schemes used to convince a legal audience. Perelman opposes the view that factual statements can be assessed with respect to their acceptability and that value judgements cannot. He claims that value judgements play an important role in everyday communication and that these can be assessed with respect to their acceptability. Lawyers, for example, seldom give formal proof. Rather, they justify their standpoint by putting forward arguments supporting it. Such a justification can be considered rational if the arguer succeeds in gaining acceptance of his standpoint from his intended audience. In Perelmans view, argumentation is always addressed to a certain (real or imaginary) audience. The audience may be composed of a concrete group of people, for instance the members of a court or a parliamentary committee. If the arguer addresses such a concrete group of people, which Perelman calls a particular audience, the argumentation is aimed at persuading this audience. The audience may also be composed of all human beings that are considered reasonable. Argumentation which lays claim to approval of such a universal audience is called convincing. Argumentation is reasonable if it gains the approval of the universal audience - all composed of rational human beings. This universal audience must not be seen as a concrete group of people. It is a construction of the arguer concerning the idea of what rational people would accept in a particular case. In principle, every arguer has his own conception of the universal audience. Because this conception depends on his perception of what is considered generally accepted at a particular moment, the conception of the universal audience always depends on historical, cultural, and social factors. How can an arguer gain approval for his standpoint? An arguer can only gain the approval of an audience if his argumentation is attuned to the preferences of that audience. To gain approval, he will have to begin with certain starting points which are considered common points of departure. Taking these points as a starting point, he can use certain argumentation schemes to gain approbation for the standpoint. In The New Rhetoric, together with Olbrechts-Tyteca, Perelman describes the starting points and argumentation schemes which have proved to be successful in gaining the approbation from an audience. In his legal argumentation theory, Perelman describes the argumentative techniques used in law. Which forms of legal argument are used and what are the specific legal starting points and argumentation schemes? What is a lawyer's audience and which standards of reasonableness are applied? According to Perelman, the justification of a decision in law is not formal proof. The 8

view that the judge only has to give formal logical proof in which he subsumes the facts of the case under a rule is out of date. In modern legal theory, there is consensus that the process of decision-making does not solely consist of an automatic application of the law to the facts. If the meaning of a rule in a concrete case is unclear, the judge must interpret the rule. The choice of a particular interpretation is always based on a weighing of values, a weighing of what is the most fair and legally correct decision. Because legal decisions are based on choices, the judge must justify the choices by establishing that they are correct and that the decision is right. He must show that the decision is fair and in accordance with valid law. Perelman draws attention to the fact that the judge must show that the choices made and the values he has used to justify his decision - are not the result of a subjective choice. It must be shown that the choice is well-founded and can be justified as intersubjectively acceptable. The judge must offer reasons for his decision and in doing so must convince the parties that the decision is not based on an arbitrarily chosen position. In justifying the decision, various argumentative techniques play a role. By showing that the decision is in accordance with the legal starting points and forms of reasoning, the judge can try to gain the approbation of the legal audiences: the parties in dispute, the legal professionals, and the public opinion. These three audiences constitute the imaginary audience which is the touchstone of reasonableness for the judge. Perelman has influenced various authors. The American legal philosopher Maneli (1993) argues that Perelmans rhetorical criterion of soundness offers an attractive alternative to formal logical criteria. The American Speech Communication theorists Makau (1984) and Schuetz (1991) have adjusted Perelmans theory for the analysis of certain examples of legal argument. Schuetz shows how precedent is used in a Mexican criminal court to give an effective defence of a legal position. Makau shows how the Supreme Court addresses a composite audience, an audience consisting of a number of different addressees: justices (both present and future), lower court justices, legal administrators, legislators, lawyers, participating litigants, legal scholars, and other educated members of the body of politics. Each of these groups reflects unique, often conflicting sets of interests, values, and beliefs. 4 The dialogical approach

The dialogical approach is the most elaborated perspective in the study of legal argumentation. In this approach, legal argumentation is considered from the perspective of a discussion 9

procedure. The rationality of the argument depends on whether the procedure meets certain formal and material standards of acceptability. Prominent representatives of the dialogical approach are Aarnio (1977, 1987), Alexy (1989, 2003, 2007), MacCormick (1978, 2005, 2007) and Peczenik (1983, 1989). These authors draw a distinction between formal, material, and procedural aspects of justification. On the level of the internal justification, the formal aspects are deployed: the argument should be reconstructed as a logically valid argument consisting of the legal rule and the facts as premises, and the decision as conclusion. On the level of the external justification, the material aspects are central: can the facts and the legal rule or norm used in the internal justification be considered acceptable? In a dialogical approach, discussions are also required to accord with certain procedural criteria of rationality. For a legal decision to be acceptable, it is important that the participants observe certain rules.

4.1

MacCormicks theory of legal justification

In his theory of legal reasoning and justification MacCormick formulates a solution for the problem of how, a legal decision can be justified in hard cases. MacCormick locates the solution of this problem in the more general context of an institutional theory of the rationality of legal decision-making. He distinguishes two levels in the justification of legal decisions. On the first level, in the deductive justification, a legal decision is justified by means of a legal rule and the facts of the case. If the facts can be considered as fulfilling the conditions of the rule, the argument is a deductively valid argument. In MacCormick's view, a legal rule can always be reconstructed as the premise 'if p then q' , if certain facts obtain ('p'), a certain legal consequence follows ('q'). That the argument is valid, however, does not imply that the conclusion is true. It implies only that the conclusion is true (or acceptable) if the premises are both true. If all premises of the argument can be considered true by legal standards, the final conclusion of such a valid argument, the final decision, is also true, that is, legally true. The soundness of the justification is, of course, dependent on the implicit assumption that there are certain 'criteria of recognition' on the basis of which a legal rule that functions as the premise 'if p then q' can be considered as legally valid. Again, such criteria depend on criteria based on legal sources which can be identified as such. According to MacCormick (1978:139), deductive justifications are always brought forward within a framework of values which form the 'underpinning reasons' for the justification to be sufficient. The other premises are proven 'primary facts', or conclusions about 'secondary facts' which have been derived deductively from the primary facts together with a premise which is a legal rule. On the first level, a justification always contains a general rule of the form 'if p then q' which is applied to certain facts 'p' to derive a legal consequence 'q'. In logical terms, this is a deductively 10

valid argument. The requirement of logical validity is justified by the requirement of formal justice, that similar cases should be treated alike and is a general requirement for every form of rational argument. In fact, according to MacCormick, legal reasoning can be considered as a special, highly institutionalized and formalized type of moral reasoning, owing to the presence of a presupposed framework of values. A deductive justification can be sufficient in clear cases in which a judge can appeal to an existing and non-ambiguous legal rule. In such cases a deductive justification of the first level may qualify as a sufficient justification. Often, however, there are problems of interpretation, problems of relevance and problems of classification. A problem of interpretation occurs when it is unclear whether a certain rule is applicable to certain facts. A problem of relevance occurs when there is no rule applicable to the facts so that at first sight there seems to be a gap in the legal system. The problem of classification arises when it is not clear whether certain 'primary facts' (r) which have occurred, can be considered as a substitution of certain legally qualified 'secondary facts' 'p' in the rule 'if p, then q'. When a judge chooses between two possible interpretations of a rule or between two rules of which one is applicable to the case at hand, and the other is not, he must put forward secondorder justification. The elements of a second-order justification involve considerations which play a role in the interpretation, relevance-choice or classification. These considerations differ from the legal rule used in the deductive justification. While a legal rule, which is derived from an accepted legal source, can be considered as an existing valid rule and, therefore, as an acceptable premise, considerations underlying an interpretation or relevance must be justified. To justify the acceptability of the preferred ruling, the judge is required to test the ruling in the light of its consequences and in the light of its coherence and consistence with accepted legal starting points. First, he must show that the decision can be justified as deducible from a rule which has better consequences than any possible alternative rule. He does this by means of what MacCormick calls a consequentialist argument. Consequentialist argumentation concerns the consequences of a universal rule underlying the decision, and not the specific consequences of the decision for the individual parties. According to the rule of formal justice, individual cases should be treated in a way which can also be justified in similar future cases. For this reason, consequentialist argumentation is concerned with the consequences of the choice between rival interpretations of a rule in relation to the law. The foreseeable consequences of a decision have to be evaluated on the basis of certain criteria: 'justice', 'public policy', 'common good of the community', legal expedience, 'convenience', and 'common sense'. 11

The second criterion of acceptability is the requirement that the justification must be coherent. When using arguments of coherence, a judge attempts to demonstrate that the decision conforms with legal values embodied in general legal principles. MacCormick distinguishes two types of argument of coherence: arguments on the basis of legal principles and arguments from analogy. An argument based on a legal principle shows that a ruling is justified by its coherence with a generally accepted legal principle. In situations in which two (or more) legal principles apply, an argument based on a principle might not be sufficient. A choice between the principles has to be made and justified by, for example, a consequentialist argument which shows that the solution would also be acceptable in similar future cases. In arguments from analogy a ruling is justified by showing that the rule is similar to a rule expressed in a previous legal decision. To argue that this same rule should be applied, it must, first, be indicated that the facts are similar to the facts of the previous decision and second, that the proposed rule and the rule expressed in the earlier case are based on the same legal principle. 11 In MacCormicks conception a well-justified decision meets the different criteria of acceptability: it does not contradict rules of law, it is supported by legal principles or by reasonably close analogy with established rules of law, and it is supported by an argument about the consequences of the decision in relation to the relevant legal values.

4.2

Alexys theory of legal discourse

The central question in the work of Robert Alexy is how normative statements, such as legal decisions, can be justified in a rational way. According to Alexy, a normative statement is true or acceptable if the judgement could be the result of procedures followed in the process of justification. Alexy considers legal argumentation as a specific form of practical argumentation and starts out to develop a general theory of rational practical discourse that can be implemented further for legal argumentation. The theory of rational practical discourse gives a specification of a procedure for a rational discussion as an ideal model that forms the normative standard to be used in assessing the quality of actual discourses as they occur in everyday practice. On the basis of this model, Alexy specifies a theory of rational legal discourse in his legal theory . In the justification of legal decisions, Alexy distinguishes between an internal justification and an external justification. An internal justification is concerned with whether the decision logically follows from the premises adduced to justify it. In an external justification, the acceptability of

11

See MacCormick (1978, 192).

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these premises is defended. 12 According to Alexy, the external justification is the central focus of legal arguments, and therefore forms the central topic of a theory of legal argumentation. The central question in the external justification is whether the arguments used in the internal justification are acceptable according to legal standards. The basic form of the internal justification that Alexy formulates for legal discourse is a specific implementation of the so-called legal syllogism in which the decision, the normative statement about the legal consequences (3), is justified by referring to a universal norm (1) and a description of the factual conditions (2) for application of the legal consequences described in the norm: (J.1.1) . (1) . (x) (Tx ORx) (2) (3) Ta ORa (1), (2)

In this formula, x is a variable which applies to a person. T is a predicate in which the conditions for applying the norm are expressed as a property of x. OR is a predicate which prescribes what x must do/what must be done with respect to x, and a is a name or description for a person. This basic form of internal justification is applicable only when it is not in question that the universal norm is applicable to the facts. Often it is not clear whether the norm is applicable, because it can be interpreted in several ways. The rules of internal justification specify the requirement that every legal decision must contain at least one universal norm and that every decision must follow logically from a universal norm, together with other premises in which, for example, a semantic rule is formulated. The rules guarantee a certain degree of rationality, because they require that implicit assumptions should be made explicit. However, the rationality of the justification as a whole is dependent on the acceptability of the premises. The decision about the rationality of the final judgement depends on the external justification. In the external justification the premises of the internal justification are defended. Because these premises can be of quite different kinds, different modes of justification should be distinguished. Justification of a rule of positive law takes place by showing that it meets the criteria of validity of the legal order. A wide variety of procedures can be brought into play in the justification of empirical premises. These range from the methods of empirical science through maxims of rational presumption to rules on the burden of proof in a trial. Finally, what can be called legal argumentation or legal reasoning serves to justify those premises which are neither

12

Cf. MacCormick's distinction between deductive and second-order justification.

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empirical statements nor rules of positive law, such as the semantic rules used in the internal justification. According to Alexy, the claim to correctness of a normative statement raised in a legal proceeding can best be characterized by means of the notion 'rational discussion'. Participants in legal proceedings claim to be arguing rationally. They make claims to correctness even if they are only following their own subjective interests. Although the parties may not try to convince each other, they claim that every rational being should agree with them. They at least claim that in an ideal situation, everyone would agree with them. So, in legal proceedings parties advance claims to correctness in the same way that parties to a rational practical discussion do. 13 One of the rules regarding the external justification prescribes the conformity of the canons of interpretation with the rules for weighing and balancing. A recent elaboration of Alexys theory of legal argumentation is his analysis of this weighing and balancing as a means for the justification of legal decisions. According to Alexy (2003:433) there are two basic operations in the application of law: subsumption and balancing. 14 Alexy claims that subsumption has been clarified to a considerable degree, but that many questions about balancing are still not answered satisfactory. The most important of these questions is whether or not balancing is a rational procedure. According to critics like Habermas (1996: 259) there are no rational standards for weighing and balancing. 15 Because of this lack of rational standards, weighing takes place either arbitrarily or unreflectively. Alexy does not agree with this position: the claim to correctness of legal standpoints also holds for weighing and balancing. Alexy tries to demonstrate that it is possible to construct weighing and balancing as a rational form of argumentation. This is important because of its dominant role in legal decisions. In hard cases there are reasons both for and against a certain decision and most of this collisions of reasons have to be resolved by means of weighing and balancing. Starting point in Alexys theory of weighing and balancing is his analysis of legal principles, which he developed in his Theorie der Grundrechte 16 . Because of the connection between the theory of legal principles and the analysis of weighing and balancing, we start with Alexys principle theory.

13

See Alexy (1989:218-220).

R. Alexy, On Balancing and Subsumption. A Structural Comparison. Ratio juris. Vol. 16, 4, 2003, 433-449 Oxford: Blackwell Publishing. 15 J. Habermas. 1996. Between Facts and Norms. Trans. William Rehg. Cambridge: Polity. 16 (1985; translated as A Theory of Constitutional Rights, 2002).

14

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According to Alexy (1985, 2002), legal principles are optimization commands, commanding that something to the highest degree possible. The degree of fulfillment depends on actual facts and legal possibilities. The legal possibilities are determined by other relevant (colliding) principles and by rules. In contradistinction to legal principles, legal rules are definitive commands: they are applicable or not. If a rule is valid, it requires that one does exactly what it demands. The form of law application characteristic of rules is subsumption: applying a legal rule on facts. This subsumption can be schematized as a more or less complex legal syllogism). According to Alexy the difference between rules and principles is a difference in quality and not only one of degree. Every norm is either a rule or a principle. The difference between rules and principles appears clearly in case of conflicts of rules on the one hand and conflicts (or collisions) of principles on the other. In both types of conflicts two norms separately lead to incompatible results. But the respective solutions to the conflict are different. A conflict between two rules can be solved by either introducing an exception clause into one of the two rules or declaring at least one of them invalid, for instance by using conflict rules like lex posterior derogat legi priori. A collision of principles is solved in a different way: weighing and balancing is the basic argumentation pattern in the justification of solutions of conflicts between principles. To illustrate this weighing and balancing Alexy uses a decision of the German Federal Constitutional Court concerning the inability of someone to attend sessions of a court proceeding (Decisions of the Federal Constitutional Court, BVerfGE vol. 51, 324). The central question in this case was whether a trial may be held in the case of an accused who would be in danger of suffering from a stroke or heart attack because of the stress of the trial. The colliding principles are the constitutional right to life and the inviolability of ones body on the one hand and the rule-of-law principle on the other. The court does not solve this problem by declaring one of the principles invalid or by introducing an exception, but by determining a conditional priority of one of the colliding principles over the other. The basic right to life and to the inviolability of the body shall have priority over the principle of a functioning system of criminal justice where there is a clear and specific danger that the accused will forfeit his life or suffer serious bodily harm in case the trial is held (BVerfGEvol. 51, 234, 346). Under these conditions the basic right has greater weight and therefore takes priority. The priority of the basic right implies that its legal effects are mandatory. The fulfillment of the conditions of priority brings about the legal effects of the preceding principle. Alexy summarizes this form of argumentation as the general Collision Law:

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The conditions under which one principle takes priority over another constitute the operative facts of a rule giving legal effect to the principle deemed prior. (Alexy 2000:297). 17

It is important to notice that the Collision Law amounts to a valid rule as basis for the final decision. This is consistent with Alexys rules of internal justification discussed in the previous paragraph: every legal decision must contain at least one universal norm and that every decision must follow logically from a universal norm, together with other premises. In Alexys analysis of weighing and balancing the final decision meets the criteria of logical validity and universalizability. The judgment follows logically from a universal norm together with further statements. According to the Collision Law the rule with priority relations between the principles is not absolute but only conditional or relative. The task of optimizing legal principles is to determine correct conditional priority relations for concrete cases. In order to conceptualize a rational way of this balancing of colliding principles Alexy introduces the Law of Balancing:
The greater the degree of non-satisfaction of, or detriment to, one right or principle, the greater must be the importance of satisfying the other. (Alexy 2003:436)

In applying the Law of Balancing, Alexy differentiates three steps in the reasoning. The first step is establishing the degree of non-satisfaction of or detriment to the first principle (in other words: the abstract weight of the first principle and the importance of the infringement of this principle), the second step is establishing the importance of satisfying the colliding principle ( in other words: the abstract weight of the colliding principle and the importance of applying this principle) and the third step is establishing whether the importance of satisfying the latter principle justifies the detriment to or non-satisfaction of the former. Alexy tries to show that his theory of weighing and balancing is adequate, by analyzing examples of German constitutional law and by formalizing the argumentation of weighing and balancing in an abstract argumentation scheme. Alexy (2003:448) concludes that subsumption and weighing and balancing are two dimensions of legal reasoning: a classifying and a graduating one which can and must be combined in many ways in order to realize as much rationality in legal argumentation as possible.

4.3

Two other recent developments

In the past years, several approaches of legal argumentation have been developed in legal theory and in argumentation theory. We will discuss two of these new approaches. Both represent a
17

R. Alexy, On the Structure of Legal Principles.Ratio juris. Vol. 13, 3, 2000, 294-304. Oxford: Blackwell Publishing.

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coherent and systematic perspective on legal argumentation that is shared by different scholars who work within a more or less well-defined paradigm based on a specific perspective on legal argumentation and its function that defines the way they approach the study of legal argumentation. The first approach is the so-called Artifical Intelligence and Law ( AI & Law) approach which is developed in legal theory by authors who claim that the traditional logical approach does not suffice for an adequate reconstruction of the particularities of legal reasoning. 18 They have developed proposals for the reconstruction of legal reasoning as a process of weighing reasons for and against a conclusion in the context of a dialogue. The second approach is the pragma-dialectical approach of legal argumentation, which conceives legal argumentation as part of a rational discussion in which a protagonist defends a standpoint against the anticipated or actual reactions of a critical antagonist. In this approach scholars try to develop an instrument for the analysis and evaluation of complex forms of legal argumentation as part of a critical rational discussion. The common aspect of both approaches is that they start from the assumption that legal argumentation occurs in the context of a difference of opinion about the applicability of a legal rule in a concrete case. Therefore, for an adequate reconstruction of the structure of the argumentation it is necessary to take into account the context of the dispute and the structure of the dialogue as an exchange of arguments for and against a particular position. The reconstruction should reflect the structure of the dialogue. For the AI & Law scholars this implies that the underlying weighing of reasons pro- and contra should be reconstructed. For the pragma-dialecticians this implies that the way the arguer anticipates or reacts to various forms of critique should be clarified. Both approaches aim at developing theoretical tools for clarifying the underlying complex structure of legal arguments from the perspective of the complexity of the dialogue. The AI & Law approach aims at developing formal models for the reconstruction, the pragma-dialectical approach views legal argumentation as a form of verbal communication and aims at developing instruments for the reconstruction from the perspective of a rational discussion.

Questions for the agenda

Representatives of this approach are a.o. K.D. Ashley, T.J.M. Bench-Capon, L.K. Branting, T. Gordon, J. Hage, R. Leenes, A.R. Lodder, A. Muntjewerff, H. Prakken, E.L. Rissland, B. Roth, G. Sartor, B. Verheij.

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In our introduction we distinguished between two central questions in the theory of legal argumentation: (1) what are the standards of soundness for legal argumentation? and (2) what methods can we use to reconstruct real life argumentation in legal decisions in order to evaluate it? Above, we have seen that in legal argumentation theory a shift from purely logical and rhetorical approaches to an approach in which logical, rhetorical aspects are integrated in a dialogical approach has taken place. What these theories have in common is that the rationality of the argumentation is related to the quality of the discussion-procedure. The focus is on the starting points and rules for rational legal discussions and on methods for analyzing and evaluating legal arguments. In our view one of the major problems in the study of legal argumentation and legal reasoning is the gap between more or less abstract philosophical and theoretical studies of legal reasoning on the one hand, and legal arguments as they occur in actual legal practice on the other. Recent developments in the study of argumentation show how this gap can be bridged by developing instruments for the analysis and evaluation of specific forms of complex argumentation based on an integration of ideas developed in AI & Law and argumentation theory on the one hand, and legal theory and legal philosophy on the other hand. The refined analysis clarifies the different types of argumentation that underlie forms like analogy argumentation, a contrario argumentation, genetic argumentation, teleological argumentation and argumentation from coherence. These complex argumentation structures can only be analyzed in a satisfactory way if the analysis does justice to their complexity and their mutual dependence.

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