Toward a Theory of Legal Argumentation

Abstract

This chapter synthesizes some of the key insights from the book’s contributors as a first effort toward building a theory of international legal argumentation outside the courtroom. It deploys an inductive method for identifying common threads from the studies and poses questions for future theoretical work on nonjudicial legal argumentation. The chapter begins by demonstrating the diversity of understandings by participants and scholars on the meaning of a legal argument. It then turns to the motives for legal argumentation identified within the chapters, cataloging and situating them with respect to the venues of argumentation, the timing of argumentation, and the choice to abstain from legal argumentation. The analysis moves to consider the effects of argumentation, both those intended and not intended. Based on the findings in the chapters, it offers a set of possible factors accounting for the success of a legal argument. Two other considerations essential to any theories of argumentation—the density of the legal landscape and the perceived need for consistency in argumentation—are also addressed. The chapter concludes by suggesting research agendas so that the work of this volume can contribute to different theories of international law and relations.