Legal argumentation: some general theoretical aspects

The evaluation of legal argumentation can be considered in two aspects - as the actual evaluation of such arguments and as an assessment of the effectiveness of such arguments (the ratio of the result of such arguments to its purpose [23, p. 120]). However, criteria for such an assessment need to be proposed. And it is the dialectical approach to legal argumentation that we believe offers such criteria. Assessment of argumentation is part of its study either separately from the reconstruction of legal arguments or as part of the reconstruction.

E. Feteris talks about the evaluation model for evaluating legal argumentation. It serves as a critical tool for establishing the acceptability of argumentation. After all, the reconstruction of the argument itself does not answer this question. E. Feteris proposes to assess the substantive and procedural aspects of legal argumentation. To the material aspect, she included evaluation standards for the use of statements that can be considered common starting points, and standards for the use of evaluation methods for statements that are not common starting points [13, p. 202]. As indicated by E. Feteris and H. Kloosterhuis, to decide whether an argument is acceptable in accordance with legal standards, it is first necessary to check whether the argument is a valid rule of law. Norms of current law are considered a specific form of common legal provisions. To check whether the argument is a valid rule of law and, thus, a common starting point, it is necessary to check whether a certain rule comes from a recognised legal source [24, p. 317]. With regard to procedural aspects, to adequately assess, it is necessary to specify which rules of discussion apply to a particular case. For different types of legal discussion (discussions in legal process, discussions in legal science) it is necessary to specify which general and special legal norms are relevant for a rational legal discussion [13, p. 202]. It follows from the above that to assess legal argumentation, it is necessary, first of all, to reconstruct the means of legal argumentation, and then to propose criteria for its evaluation.

R. Alexy does not distinguish between a separate component of the evaluation of the outcome of the discussion. In his view, the rationality of the result depends on whether the discussion took place in accordance with the rules of rational discussion. After all, the rules for discussions already require that the argument be acceptable in accordance with the common starting points. This ensures the coherence of the final result with the initial provisions and values shared by the legal community [16, p. 318].

From the standpoint of F. Van Eemeren, the analysis, evaluation and creation of argumentative discourse concerns both the beginning of argumentation (which includes explicit and implicit material and procedural principles that serve as its starting points) and the presentation of argumentation (reflected in the statement of principles implicitly or explicitly vision). Both the starting position and the presentation of arguments should be assessed using appropriate assessment standards that are consistent with all the requirements of a rational judge who judges reasonably [11, p. 12].

Representatives of the pragmodialectical approach in the theory of argumentation propose to evaluate the argumentation considering the following factors: 1) points of view that they put forward in the presence of different positions; 2) the positions taken by the parties and the material and procedural starting points; 3) the arguments put forward by the parties in support of each point of view;

the argumentative structure of all arguments put forward in defense of the standpoint; 5) argumentation schemes used to substantiate the point of view in each individual argument, which together constitute the argument; 6) the result of the discussion presented by the parties [11, p. 537].

To evaluate the argument and find errors and arguments, some researchers suggest asking critical questions to the arguments. H. Mercier proposes to use the typology of argumentative schemes and critical questions to them, developed in the theory of argumentation, as a starting point for assessing argumentation [25, p. 266]. D. Walton offers critical questions to each scheme of the argument [10, p. 327].

Thus, there are three different positions on assessing the admissibility of an argument. R. Alexy, F. Van Eemeren and other representatives of the pragma-dialectical approach link the acceptability of legal argumentation, and hence its persuasiveness, to the procedural aspect of the instruments of legal argumentation, namely, to the observance of the rules of discussion. The latter concern both general practical discourse and legal discourse, in particular the rules on the need to accept common starting points. It is no coincidence that the representatives of the dialectical approach to legal argumentation attach great importance to common starting points. For example, if the parties have different ideas about the presence or absence of a fact or about the applicability or content of a rule of law, it is unlikely that any bilateral legal argument will be convincing for them.

In general, the conclusion on the acceptability or persuasiveness of the argument can be made by both the addressee of the argument, and the reconstructor, and the audience. H. Mercier, D. Walton proposes to evaluate the acceptability of arguments by assessing the acceptability of arguments by asking critical questions to them. E. Mehta and H. Kloosterhuis is talking about a comprehensive assessment, considering the assessment of substantive and procedural aspects of legal argumentation, including through the formulation of critical questions to the arguments. Probably, all these factors should be considered as criteria for assessing the persuasiveness of legal argumentation according to the dialectical standard of its acceptability.

Conclusions

According to the results of the study, it was found that legal argumentation should be considered as a process concept that reflects the legally significant activities to substantiate the statement by certain means - legal and non-legal arguments. Such activities are communicative, and are carried out in various types of legal activities, often in the form of discourse. Legal argumentation can reasonably be considered the result of legal argumentation or the result of the reconstruction of the argument, presented in writing, through the prism of the own consciousness of a particular subject (reconstructor). In this sense, legal argumentation is always the result of a certain activity of legal argumentation - its own or another subject.

It is substantiated that the general theoretical model of legal argumentation can be considered as a theoretical and analytical model of legal argumentation, which serves as a model of creation and a model of reconstruction and evaluation of legal argumentation in all types of legal activity. Such a model should cover

the composition (corpus) of legal argumentation; 2) tools of legal argumentation; 3) reconstruction and evaluation of the [effectiveness] of legal argumentation.

It is substantiated that the composition (corpus) of legal argumentation as a legal construction allows to give legal argumentation a holistic characteristic and show the transition from the activity - legal argumentation - to its result - legal argumentation. It is reasonable to include the following components: argumentative situation; subjective composition; goal; object of legal argumentation; the content of legal argumentation.

It is established that the tools of legal argumentation are a system of substantive (arguments, argumentative schemes and structures) and procedural means (rules of legal argumentation). Legal and factual arguments are based on various argumentation schemes and standards of certainty. As it was stated, the scheme of argument covers not only the means of argumentation, but also its inherent way of substantiating the standpoint (conclusion of argumentation) given the relationship between its other elements - the foundations (explicit or implicit). The structure of the argument covers the combination of arguments in chains of arguments, and reflects the relationships between arguments.

It is identified that the reconstruction of legal argumentation is a reproduction of real legal argumentation, turning to the tools of legal argumentation, including to the context, which allows identifying the features of legal argumentation, the result of which is. Assessment of legal argumentation allows drawing conclusions about the persuasiveness or acceptability of the result of legal argumentation, and possible errors in such arguments.

Recommendations

The scientific value of the article is explained by the fact that it contains substantiation of the general theoretical model of legal argumentation, which has not yet been studied with the help of such a methodological basis. Such a model has the heuristic potential for the analysis of legal argumentation in various types of legal activity. The author's definitions and visions of such a model based on the analysis of basic works on the theory of argumentation and legal argumentation are offered in the article.

References

1. Koziubra, M. (Ed.). (2015). General theory of law. Kyiv: Vaite.

2. Petryshyn, O.V., Lukyanov, D.V., Maksymov, S.I., Smorodynsky, V.S., Bylia-Sabadash, I.O., Bohachova, L.L., Vovk, D.O., Hetman, Ye.A., Hyliaka, O.S., Dashkovska, O.R., Lemak, V.V., Mernyk, A.M., Oleinykov, S.M., Petryshyna, M.O., Pohrebniak, S.P., Pryima, S.V., Protsiuk, I.V., Razmietaieva, Yu.S., Satokhina, N.I., Uvarova, O.O., Khrystova, H.O., Shevchuk, S.V., & Yakoviuk, I.V. (2020). General theory of law. Kharkiv: Pravo.

3. Tiaglo, O. (2014). The legal argument assessment problem. Philosophy of Law and General Theory of Law, 1-2, 175-184.

4. Titov, V. (2014). Basic western theories of legal argumentation. Philosophy of Law and General Theory of Law, 1-2, 193-202.

5. Koziubra, M. (2013). Models (types) of legal argumentation. Scientific Notes of NaUKMA. Legal Science, 144-145, 4-8.

6. Rabinovych, P. (2015). Legal argumentation (initial theoretic characteristics). Legal Reporter of Ukraine, 17-18, 22.

7. Kistyanyk, V. (2021). Court's argumentation: Peculiarities, comparative analysis, national and foreign practice (Candidate thesis, National University of Kyiv Mohyla Academy, Kyiv, Ukraine).

8. Shcherbyna, O. (2014). Logical analysis of legal argumentation (Doctoral dissertation, Taras Shevchenko National University of Kyiv, Kyiv, Ukraine).

9. Yurkevych, O.M., Tytov, V.D., Kutsepal, S.V., Zarkhina, S.Ye., Nevelska-Hordieieva, O.P., Pavlenko, Zh.O., Tsalin, S.D., Voitenko, D.O., & Shestopal, S.S. (2012). Legal argumentation: Logical research. Kharkiv: Yaroslav the Wise Law Academy of Ukraine.

10. Walton, D.N. (2002). Legal argumentation and evidence. Pennsylvania: Pennsylvania State University.

11. van Eemeren, F.H. (Ed.). (2014). Handbook of argumentation theory. Dordrecht: Springer.

12. Bermejo-Luque, L. (2011). Giving reasons. A linguistic-pragmatic approach to argumentation theory (Argumentation library. Vol. 20). Dordrecht: Springer.

13. Feteris, E. (1999). Fundamentals of legal argumentation. Survey of theories on the justification of judicial decisions (Argumentation library. Vol. 1). Dordrecht: Springer.

14. Feteris E. (2017). Fundamentals of legal argumentation: A survey of theories on justification of judicial decisions (2nd ed.; Argumentation library. Vol. 20). Dordrecht: Springer Science+Business Media.

15. Tindale, C.W. (1999). Acts of arguing: A rhetorical model of argument. Albany: SUNY Press.

16. Alexy, R. (1989). A theory of legal argumentation. The theory of rational discourse as theory of legal justification. Oxford: Clarendon Press.

17. Hinton, M. (2021). Evaluating the language of argument (Argumentation library. Vol. 37). Dordrecht: Springer.

18. Kargin, K.V. (2011). The notion and elements of legal argumentation. Nizhniy Novgorod: Nizhegorodskaya Legal Academy.

19. Shynkaruk, V.I. (Ed.). (2002). Philosophical encyclopedical dictionary. Kyiv: Abrys.

20. Migunov, A.I. (Ed.). (2006). Crucial concepts of argumentation theory. Saint-Petersburg: Linguistic Faculty of the Saint-Petersburg State University.

21. Eemeren, F.H. van, & Garssen, B. (2020). Argument schemes: Extending the pragma-dialectical approach. In Argument schemes to argumentative relations in the wild a variety of contributions to argumentation theory (pp. 11-24). (Argumentation library, Vol. 35.) Dordrecht: Springer.

22. Freeman, J. (2011). Argument structure: Representation and theory (Argumentation library. Vol. 18). Dordrecht: Springer Science.

23. Rabinovych, P. (2021). Fundamentals of general theory of law. Lviv: Medicine and Law.

24. Feteris, E., & Kloosterhuis, H. (2009). The analysis and evaluation of legal argumentation: Approaches from legal theory and argumentation theory. Studies in Logic, Grammar and Rhetoric, 16(29), 307-331.

25. Mercier, H. (2012). Some clarifications about the argumentative theory of reasoning. A reply to Santibanez Yanez. Informal Logic, 32(2), 259-268.

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