Argumentation in the Law
From IVR encyclopedie
The idea of argumentation in the law is narrowly connected to the idea of decision, since legal reasoning is a kind of practical reasoning; nevertheless, even if reasoning and deciding are very often facets of the same reality, they are not exactly the same: it is possible to decide without reasoning (without giving reasons -or, at least, explicit reasons), and in the law we produce arguments in contexts in which, at least in an immediate way, we do not have to decide, but to reach an opinion or a belief about something. Neither can we identify the activity of reasoning with that of solving problems: a problem can be solved in a non argumentative way and, in any case, the solving of problems implies as a rule something more than reasoning; but what can be categorically affirmed is that reasoning is something that takes place in the context of the solution (or, more in general, the handling) of problems.
As is true in the case of all the basic notions of whatever discipline, argumentation is a complex concept. This complexity is not the consequence of the fact that: different meanings of argumentation exist which are disconnected to each other to a greater or a lesser extent; one can find a strict or proper meaning of argumentation and some other meanings that have a derivative or secondary character; it is impossible to identify a property or set of properties that apply to all the situations in which we use the concept (as in the case of "game"); or it is a case of a "essentially contestable concept" in the sense of Gallie . The complexity comes rather from the fact that although it is possible to elaborate a very abstract concept of argumentation, such a concept is open to different interpretations, different conceptions. The explanation for this diversity of conceptions lies not in value pluralism (as in the case of "essentially disputable concepts" such as "justice" or "legal positivism"), but in contextual pluralism: the problem we face does not stem from the fact that we value reasoning in different ways, but rather from the fact that we do not (we cannot) produce arguments in the same way in all the different contexts.
From a very abstract point of view, in an argumentation we can always identify these elements: 1) a language; reasoning is a kind of speech act; 2) a problem or a question that originates the need for reasoning: argumentation is a kind of activity that takes place between an a quo term, the problem, and an ad quem term, the solution or the answer; 3) the result of this kind of activity is a set of statements in which it is possible to distinguish three elements: the premises, the conclusion and the inference (the kind of relation that connects premises and conclusion); 4) some criteria that authorise the qualification of an argument as valid, fallacious, sound, persuasive and so on.
Generally speaking, the authors have distinguished two different ways of understanding argumentation in the law; this dichotomy is due to the fact that one of the extremes seems always to remain the same (deductive formal logic) while the other changes from some authors to others: the topic in the case of Viehweg , the rhetoric in the case of Perelman [vid. Perelman/Olbrecht-Tyteca 1969] , the "operative logic" in the case of Toulmin , and so on. Three dimensions of the argumentation that can originate from three different conceptions can be distinguished if each one of these dimensions or perspectives is considered as the only one or the fundamental one: the formal conception, the material conception and the pragmatic conception; within the pragmatic conception we have to proceed to a new distinction between the rhetoric and the dialectical conceptions. This division of the realm of argumentation is quite obvious and can be found with many authors although it is probably not presented in an identical way.
II. Three conceptions of argumentation in the law
The connection between argumentation and the notion of a problem, and the diversity of situations in which the necessity for reasoning arises, is the key to establishing the distinction between these three conceptions.
A first type of situation is linked to the solution of formal problems, such as, for example, a problem in mathematics or logic. They are formal problems because, in a certain sense, they make an abstraction of what the world is really like; yet this does not mean that they are not linked to any social practice: formal logic, for example, is itself a practice, but in addition, exercising the solution of this type of problems is good training for solving other problems which are not simply formal. For the formal conception or perspective, the premises and the conclusion are not interpreted statements or, if you prefer, interpreted in a purely abstract sense. Thus, the emphasis is placed on the syntactic aspect of language (and also on abstract semantics) and on the notion of inference: what is important is not the truth or the correctness of the premises and the conclusion, but rather what the formal schemes which allow the passing from the premises to the conclusion are. From this perspective, reasoning is seen basically as the result of an activity, rather than as an activity. And the criteria of correctness with which it functions are provided by rules of inference (which do not have to be limited to those of deductive inference).
However, the necessity for reasoning does not usually arise from the necessity to solve a strictly formal problem. It arises more frequently in relation to material problems like the following: the explanation of a phenomenon, the prediction of an event, finding out if something has taken place, the justification of an action, recommending that someone should do something, etc. The solution (or the argumentative aspect of the solution) of a material problem requires the use of some form of reasoning (not necessarily a deductive one), but the emphasis is now put on the premises (and on the conclusion) which are considered to be statements whose veracity or correctness he who carries out the reasoning is committed to. The reasoning is now seen as an activity more than as a result. Methodological rules (about sources, about validity, about interpretation) play an analogous role to that of the rules of inference in the earlier conception.
Finally, there is a third type of situation which generates the need for reasoning: when we interact with another person (or with others) and we are faced with the problem of how to defend or attack a thesis and, as a consequence, we have to get others to accept our positions or, at least, to accept those positions if certain rules of rational discussion are followed. The emphasis is now placed on the effects of reasoning, on persuasion, so that the premises (and the conclusion) are seen as statements accepted by the parties. What is now stressed is reasoning considered as an activity, but, in contrast to the material conception, this activity is of a necessarily social nature: it is a relationship which takes place between various subjects. There is, moreover, a subdistinction here which must be made between the dialectical conception and the rhetorical conception, which is related above all to the fact that the relationship takes place between two or more agents (proponent and opponent) who play an active role in the process; or between an orator and certain addresees of his discourse (an audience), these last taking on an essentially passive role. The rules which regulate the different types of dialogue and the rhetorical discourses here play a role which in the previous conceptions was played by the rules of inference and methodological rules.
III. Conceptions of reasoning as ideal types
The three conceptions or dimensions of reasoning are similar in some way to ideal types, in the sense that truly existing argumentations do not in general obey only one of these pure types. This is for two reasons. One is that these three conceptions are not incompatible with each other, or not necessarily: for example, the formal validity of the argumentation is usually a necessary condition (but not normally a sufficient one) for validity or material correctness; and showing the formal incorrectness of a reasoning is a powerful dialectical tool; both rhetorical and dialectical reasoning require certain points in common (premises); etc. The other reason is that "rational enterprises" (to use Toulmin´s expression) in which individuals are involved and which generate the need for reasoning aspire in some way to "totality", that is, the ends and values of these enterprises are not exclusively formal, material or procedural. To be specific, in legal reasoning one cannot do without any of them, because each conception is intimately connected to basic values in the legal systems: certainty, to the formal conception; truth and justice, to the material conception; and acceptability and consensus to the pragmatic conception. In this way, the ideal of judicial justification can be expressed by saying that it is a question of putting good reasons in an appropriate way, so as to achieve the audience´s acceptance.
However, although, generally speaking, legal reasoning consists in a peculiar combination of elements coming from these three ways of understanding reasoning, this does not prevent the ability to distinguish, within it, between fields in which one or other of these conceptions plays a dominant role. For example, lawyers´ reasoning seems to be of an essentially dialectical nature (when it is seen from the perspective of the confrontation which takes place between parties defending conflicting interests) and rhetorical (if it is seen as the arguments used for persuading the judge or the jury in relation to a certain thesis). Perhaps something similar should be said of legislative reasoning, in which the dialectical or rhetorical approach are prevalent, depending on whether the addressees are other legislators –other members of the Parliament- or the public in general, the voters. The formal conception is useful when explaining the work of some legal theorists who concentrate on the judges decisions seen as a result (the text of these last). And the material conception constitutes the core of the justification in judicial decisions.
The distinction between these three perspectives can be useful in order to avoid sterile controversies or to better understand interesting prevalence. For example, it allows one to realize that there is no reason to think that we must opt for any of these conceptions when analyzing, evaluating or carrying out reasoning: for the conception that the logicians usually present us with (centred in, or limited to the formal elements); instead of those put forward by authors like Dworkin [1986 and 1996], Summers , Raz  or Nino , who are more fundamentally interested in material elements, although limiting them to the judicial realm; or to opt for the rhetorical or dialectical conception in the style of Perelman or Toulmin. This is simply a false dilemma: each of these approaches underlines an important aspect of the practice of legal reasoning, but alone it is insufficient, reductionist. In fact, what can be called "the standard conception" of legal reasoning (Alexy , MacCormick, Peczenik  and Aarnio ) consists in a combination of ingredients in these three conceptions or perspectives. This leads to the understanding that the distinction between the context of discovery (or the taking of decision) and the context of justification of legal decisions, which have had so much importance in the study of legal reasoning (the "standard conception" limits itself basically to the study of the context of the legal justification in judges´ decisions made in superior courts) can only be traced from the perspective of the formal conception, but not from the material or pragmatic conception; that is to say, it only works when reasoning is seen as a product, but not if it is considered as an activity. Or it suggests a scheme which is helpful when going into the study of legal fallacies, that is to say, those argumentations which appear sound, but which are not because they are at odds with the criteria of good reasoning, whether formal, material or pragmatic.
Aarnio (1987): Aulis Aarnio, The Rational as Reasonable. A Treatise on Legal Justification, Reidel, Dordrecht.
Aarnio-Alexy-Peczenik (1981): Aulis Aarnio, Robert Alexy y Aleksander Pczenik, "The Foundation of legal reasoning", in Rechtstheorie, 12.
Alexy ( 1989): Robert Alexy,: A Theory of Legal Argumentation, Oxford University Press, 1989.
Dworkin (1996): Ronald Dworkin, A matter of Principles, Clarendon Press
Dworkin (1986 ): Ronald Dworkin, Law´s Empire, Harvard University Press.
Feteris (1999): Eveline T. Feteris, Fundamentals of Legal Argumentation, Kluwer
Gallie (1956): W. B.. Gallie, "Essentially contested concepts", in Proceedings of Aristotelian Society, 56.
MacCormick ( 1995): Neil MacCormick, Legal Reasoning and Legal Theory, Oxford University Press.
Nino (1985): Carlos S. Nino, La validez del Derecho, Astrea, Buenos Aires.
Peczenik (1989): Aleksander Peczenik, On law and Reason, Kluwer Academic Publishers, Dordrecht-Boston-London, 1989.
Perelman/ Olbrecht-Tyteca ( 1969): Chaïm Perelman y Lucie Olbrecht-Tyteca, : The New Rhetoric: A Treatise on Argumentation, University of Notre Dame Press, London.
Raz (1999): Joseph Raz, Practical Reasons and Norms, Oxford University Press.
Summers (1978): Robert S. Summers, "Two Types of substantive Reasons: The Core of a Theory of Common Law Justification", Cornell Law Review,. 63.
Toulmin (1958): Stephen E. Toulmin, The Uses of Argument, Cambridge University Press.
Viehweg (1953): Theodor Viehweg, Topik und Jurisprudenz