Institutional Boundaries on the Evaluation of Argumentation in Legislative Discussions

Abstract

In order to be able to evaluate argumentation supporting judicial decisions, certain norms of reasonableness will have to be agreed upon. These norms will enable us to decide on the soundness of the argumentation. Various publications demonstrated that the pragma-dialectical argumentation theory, in which norms with respect to the quality of argumentation are clearly articulated, provides a useful tool for the evaluation of argumentation underlying judicial decisions. In legal theory as well as in argumentation theory, legislative decisions may be conceived as judicial decisions. This is, however, not to say that the same norms should apply for the justification of both types of decisions. For an adequate analysis and evaluation of legal and legislative decisions, it is of importance to ascertain which general and which specific norms play a role in the legal procedure and the legislative process. On the basis of a case on Dutch legislation, this contribution discusses some of the problems that may arise if a pragma-dialectical analysis and evaluation of the argumentation in the legislative process does not sufficiently take into account the specific context in which the argumentation is put forward.