The Rule of Law and the Ideal of a Critical Discussion

Abstract

The pragma-dialectical approach to legal argumentation conceives the justification of a judicial decision as part of a critical discussion. In this approach it is assumed that a legal argumentation theory should integrate descriptive and normative perspectives on argumentation. Legal discourse should be studied as a sample of normal verbal communication and interaction and it should at the same time, be measured against certain standards of reasonableness. This implies first a philosophical ideal of reasonableness, second a theoretical model for acceptable argumentation and third tools to analyze actual legal argumentation from the perspective of the model. Analyzing argumentation in judicial decisions from the ideal-perspective of a critical discussion is sometimes criticized. One of the main objections is that a judge does not have a standpoint in a critical discussion, but simply decides a case. As a result the critical norms for evaluating argumentation are not applicable to a legal decision. In this contribution I will try to refute these two objections by showing how the ideals of a critical discussion relate to the ideals of the Rule of Law and how these ideals function as starting points in analyzing and evaluating legal decisions, focusing on reconstructing standpoints.