The Rehabilitation of Practical Reasoning and the Persistence of Deductivism: An Impossible Challenge?

Abstract

Exploring certain specific dimensions of practical reasoning in law—namely the possibility of recognizing an autonomous (structurally dialectic and intentionally dialogic) subject/subject rationality—this paper concentrates on one of the main challenges that the theory of legal argumentation, or a certain standard trend within this theory (emerging from Alexy, MacCormick, Aarnio and Peczenik), considers when invoking Wroblewski’s legacy (the analytical reconstitution of argumentation as a process of justification, with different horizontal or vertical levels). In effect, this challenge means on the one hand responding to the question of “how decisions can be justified when no deductive argument is sufficient to justify them” and, on the other hand, defending the thesis that syllogism “provides” the “framework” in which all “the other arguments make sense as legal arguments” (MacCormick). Is this a plausible challenge or does it encourage possible convergence? In order to answer this question, I will allude to some relevant “anti- deductive critiques” (from the founding fathers Viehweg, Perelman and Toulmin) and a very specific jurisprudentialist understanding of legal rationality (which explores the judicium/legal system connection and a dialectics between problem and system), and I will refer to the stimulus of a certain alternative logical perspective (“legal logic beyond deduction”) that can be identified in Sartor’s “doxification of practical reasoning”. In addition, one of the main concerns of our common thematic core must not be forgotten: the confrontation between the democratic (discursive) legitimation of jurisdictio as potestas and the apparently non deliberative and non-democratic possibilities of practical–prudential rationality.