The Pragma-Dialectical Approach of Legal Argumentation

Abstract

This chapter gives an overview of the pragma-dialectical approach to legal argumentation. The chapter provides a summary of the pragma-dialectical theory of argumentation and describes developments in the application of the theory to the legal context. It characterizes legal justification as an argumentative activity type and it analyses the role of the judge in terms of his function in the resolution of a difference of opinion. The different prototypical argumentative patterns in legal justification are discussed. The patterns are characterized as prototypical patterns that result from the obligations of courts to justify their decisions in clear cases and hard cases. It is specified which argument schemes have a function in the justification. For the different argument schemes it is investigated how the way courts react to different critical questions results in different argumentative patterns. On the basis of some representative examples of justifications in hard cases in which courts must interpret the legal rule, a description is given of implementations of prototypical argumentative patterns. Finally, prototypical patterns of weighing and balancing, that consist of a combination of different forms of justification, are discussed.