Overview of methodological approaches to understanding and research of legal argumentation

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Overview of methodological approaches to understanding and research of legal argumentation Osnovnì metodologìčnì pìdhodi do pozumìnnâ j doslìdžennâ pravovogo argumentuvannâ j pravovoї argumentacїї

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legal argumentation legal arguing logical approach rhetorical approach dialogical approach

The article is devoted to legal argumentation hereinafter – LA. Methodological approaches to its understanding and research are under consideration. The author covers methodological base proposed by theory of argumentation namely by F. Van Emeren and E. Feteris to determine the most appropriative methods of LA research. Theory of argumentation deals with two dimensions of LA research – normative and descriptive. Normative dimension of LA has its purpose to answer the question what the LA should be like, while practical dimension of LA answers the question in what way LA is providing in the real life in legal context.Research of LA should include philosophical, theoretical, empirical, analytical and practical components. Philosophical component consists in the conception of rationality. There are only few conceptions of rationality: geometrical, anthropological, and critical. Each of them determines choice of particular theoretical model of argumentation – logical, rhetorical or dialogical respectively. These theoretical models of argumentation in their turn determine the analytical, empirical and practical components of LA research.Particular theoretical model of argumentation concerns LA in one of two contexts – either in the «context of discovery» or in the «context of justification». With regard to peculiarities of LA its normative and descriptive dimensions are to be covered with different theoretical models of argumentation. Logical theoretical model of argumentation is appropriative for normative dimension of LA research, while rhetorical and dialogical models of argumentation are applicable to describe LA provided in the real life.Particular approach to LA uses different standards of soundness of the argumentation. They are validity of argumentation for logical approach, persuasive force of argumentation= for rhetorical approach and acceptability of argumentation for the parties in dialogical approach. The above mentioned standards do not exclude each other and may be applied cumulatively in particular argumentative situations.Logical approach to LA steers from the understanding of legal argumentation as justification via proving through presentation of corpus of arguments concerning a particular legal issue in accordance with logical rules of truth.According to rhetorical approach LA is a form of influence on legal audience through application of communicative and interactional means which persuasive force depends on the context of argumentative situation on legal issues.In dialogical or dialectic approach LA is a form of rational communication of a few subjects who seek for consensus in mutual discussion concerning acceptability of legal issues.

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L'vìvs'kij nacìnal'nij unìversitet ìmenì Ìvana Franka

Wrocławsko-Lwowskie Zeszyty Prawnicze, 2017, 8, s. 103-123

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