Legal argumentation — Is it a science or art?

Abstract

The uncertainties in methodology of interpretation and argumentation and the lack of specific methods to be followed bring the interpreter into a particular situation in law. However, it cannot be ruled out that the art of legal reasoning may possibly exist. Accordingly, in the interpretation of the law and in legal hermeneutics the main issue is the judicial conduct. The sociological situation of the judge does not allow her to follow the criteria prevailing in science. This does not mean the disparagement of judicial activity, because the justification of the verdict may have a strong intellectual force, even if it does not meet the academic requirements. An approach that holds that the proper interpretation and argumentation should be a scientific one is too narrow, as there is another rationality, that is, the adjudicating intellect. This by its very nature not only deals with the exploration of general principles and rules, although these also play a role in this form of reasoning, but also attempts ...