Uses of Linguistic Argumentation in the Justification of Legal Decisions

Abstract

Linguistic argumentation, using the meaning of the wording in a statutory norm, often plays an important role in the justification of interpretative standpoints in legal decisions. In legal theory, the use of linguistic argumentation is often discussed, but the reconstruction of the use of this argumentation in light of the different evaluation criteria has not received much attention yet. In order to provide clues for this reconstruction we will answer two related questions: which norms apply for the use of linguistic argumentation and which uses of linguistic argumentation can be distinguished based on these norms. We start with a pragma-dialectical framework for the analysis of linguistic argumentation, based on a dialogical application of MacCormick and Summers’ model for the interpretation of statutes. Given this framework, we will give an overview of the different forms of linguistic argumentation in the justification of interpretative standpoints. We will specify the justificatory function of linguistic argumentation in complex structures and we will distinguish four forms. For each form, we specify the norms for an acceptable use. For each form, we explain with an example in which discussion context such a form is used and how courts refer to the norms for an acceptable use.KeywordsLinguistic argumentationJustification of interpretative standpointsJustification of legal decisionsPragma-dialectics