The Study of Legal Argumentation in Argumentation Theory and Legal Theory: Approaches and Developments

Abstract

This contribution provides an overview of how argumentation theorists, philosophers, legal theorists and legal philosophers approach questions about the standards for the correctness of legal argumentation. Ideas about the analysis and evaluation of legal argumentation, developed by influential authors in the field, will be examined. This overview serves as a general introduction and background for the different contributions to this issue of Cogency in which the different questions mentioned above will be addressed by the various authors. The contribution starts with an overview of objectives and methodological choices in the study of legal argumentation. It proceeds with a discussion of three traditions in the study of legal argumentation: the logical, the rhetorical and the dialogical approach. The discussion is completed with an extended description of the pragma-dialectical approach to legal argumentation. In this approach rhetorical and dialectical aspects are integrated in a systematic theory for the analysis and evaluation of legal argumentation from the perspective of a rational critical discussion.