LEGAL ARGUMENTATION: CURRENT VIEWS AND POTENTIAL FOR FURTHURE RESEARCH

Abstract

The article is dedicated to legal argumentation studies. The author justifies the urgency of legal argumentation research in Ukrainian legal theory as well as its huge practical meaning for lawyers. The author analyses the concept of legal argumentation in national and foreign studies. In national legal studies legal argumentation has been subject of scientific research in clearly deductive course since prerevolutionary period as well as in the soviet period. Legal argumentation has been denoted via the concept of deductive reasoning. Persuasive force has not been acknowledged to be characteristic feature of legal argumentation. The only important characteristic of legal reasoning in national studies was formal syllogistic connection between the premises and the conclusion. It is found out that legal argumentation has been studied in non-deductive course by foreign scholars recently, i.e. in the middle of XX century. The foreign scholars apply wide approach to research of legal argumentation in theoretical and philosophical dimensions. In view of this philosophical reflection as well as theoretical analysis of legal argumentation is provided through coherence of logic, rhetoric, topic, dialectic, linguistic and artificial intelligence. The threshold in evolution of legal reasoning from deductive model to coherent model happened when the books of Ch. Perelman and S. Toulmin in 1958 were published. Whereas Ch. Perelmen made «rhetoric turn» in argumentation, S. Toulmin proposed a model of argument appropriative to everyday life. The base of Toulmin’s model was judicial procedure. The cornerstones of legal argumentation were theories by N. MacCormick, R. Alexy, A. Peczenik, A. Aarnio, E. Feteris, M. Atienza. They represent diversity of approaches to legal argumentation, namely N. MacCormick evolves his understanding of legal argumentation from deductive to rethoric dimension; R. Alexy proposed theory of communicative discourse as a base of legal theory in the whole; A. Peszenic’s theory of law deals with connection between law and reason; A. Aarnio analyses the criteria of acceptability of interpretative statement, in particular, rational acceptability; E. Feteris studies legal argumentation through pragma-dialectical approach; M. Atiensa proposed criteria for evaluation of legal argumentation in justification. In national legal studies legal argumentation is subject of research within the framework of legal logic. Nevertheless in the recent years there is a trend of diversification in methodology of legal argumentation research. At the end of the XX century the notion of persuasion has become an important component in definitions of legal reasoning by national scholars. In foreign legal studies the existence and further development of the theory of legal argumentation is acknowledged fact.