НСТРУМЕНТИ ПРАВОВОГО АРГУМЕНТУВАННЯ Й ПРАВОВОЇ АРГУМЕНТАЦІЇ: ЗАГАЛЬНОТЕОРЕТИЧНА ХАРАКТЕРИСТИКА

Abstract

The article is dedicated to the general theoretic study of the instruments of legal arguing and legal argumentation. The author determines that the substantive instruments of legal arguing are the arguments, while the argument schemes and argumentation structures serve for the purpose of reconstruction and evaluation of legal argumentation. The lack of unified understanding of what is argument in foreign and national legal studies is stated, as well as the impossibility of exhaustive categorization of the arguments in law. The argument is the basic tool of legal arguing. According to C. Tindale, in European tradition the concept of argument encompasses both premises of the argument (argumentation) and its conclusion (standpoint, claim). The concept of argument is rather vague. The author highlights the correlation of the argument and explanation as well as the argument and proof. The reasons for the argument are rooted in the sources of law, that makes argumentation legal. In the argumentation theory, the notions of «argument scheme» and «argumentation structure» are used in addition to the concept of argument. Argument scheme is the internal argument structure. An argument scheme characterizes the type of justification or refutation provided for the standpoint in a single argument by the explicit premise for the standpoint. Argument structure is considered as an external structure of argumentation. It is defined as the way the reasons advanced hang together and jointly support the defended standpoint. There are singular and multiple argumentation structures. The singular argumentation consists of one argument for or against a standpoint. In case of multiple argumentation, few arguments are put forward for or against the same standpoint to predict and respond counterarguments of an opposite party of legal arguing. The procedural aspect of the instruments of legal arguing are the rules of legal arguing. The procedural means of legal arguing are its procedural rules which depend on an area of legal activity where the argumentation is provided as well as on the peculiarities of the argumentative situation. On the one hand, there are procedural rules of legal arguing in any legal system, for instance, legal rules governing the procedures of debates in a parliament, court system, hearing in the Constitutional Court. On the other hand, there are doctrinal rules of critical discussion, of general and legal discourses, elaborated within the argumentation theory and the legal argumentation theory.