Function and limits of legal argumentation

Abstract

Argumentation is the most important, if not the only, weapon for lawyers, judges and legal experts to do their job, but nowadays it seems excessively trusted. It has the structure of an incomplete demonstration, where, starting from premises (arguments, reasons), a descriptive or an evaluative consequence is proposed, though we can keep on the discussion indefinitely. Such discussion can be exercised by showing internal inconsistencies, by denying factual descriptions, by signalling an incompatibility among its evaluative arguments and other evaluations sustained by the same subject; by proposing new opposed arguments or emphasizing that the invoked reasons are not conclusive enough. But there is an extended idea that we can arrive to unquestionable conclusions: a basic idea within the present discourse about principles and rights. This discourse cannot function without a weighing method, but such method does not exist, in spite of an extended belief. That situation is dangerous to the legal discourse: instead, argumentation may be an instrument for discussions, agreements and decisions through institutional means. This can be done, to great advantage for law; but it hurts against hard ideological obstacles.