Legal Argumentation as Rational Discourse

Abstract

The discourse model of legal argumentation is presented in this chapter as a reaction to the weaknesses or deficiencies of alternative models. The most important alternative models are the model of deduction, the model of decision, the hermeneutic model, and the model of coherence. The discourse model connects the institutional or real dimension of legal argumentation with its non-institutional or ideal dimension. The result is the special case thesis. It combines institutional arguments, based on the authority of positive law, with substantive arguments, based on practical reason. This connection of the real dimension of legal argumentation with its ideal dimension is a central element of the institutionalization of practical reason.