Legal Argumentation: Some General Theoretical Aspects

Abstract

The relevance of the study is explained by the fact that the legal arguments used by judges in particular when making decisions are often criticised. The general theoretical understanding of legal argumentation, which is the purpose of this study, can help to solve the urgent problem of improving legal argumentation. The article substantiates the general theoretical model of legal argumentation, which is carried out in different types of legal activities – lawmaking, interpretation, law enforcement. For this purpose, such research methods as general theoretical, modelling, deduction, analysis and abstraction were used. It is proposed to distinguish between terminological legal argumentation as an activity and legal argumentation as a result of this activity, and the result of activities to reconstruct the legal argumentation of another entity, and provide a definition of each of these concepts. It is established that the general theoretical model of legal argumentation covers composition (corpus) of legal argumentation, tools of legal argumentation, reconstruction and evaluation of legal argumentation. It is identified that in the composition (corpus) of legal argumentation it is reasonable to include: argumentative situation; subjective composition; the purpose of the right argument; object of legal argumentation; the content of legal argumentation. The substantive and procedural aspects of the tools of legal argumentation are singled out. The practical value of the article is that the general theoretical model of legal argumentation creates grounds for improving argumentative practice in various types of legal activity