To persuade or not to persuade? On the purpose and functions of constitutional argumentation

Contemporary scholarship has consistently sought to generalize knowledge since the universality of scholarly knowledge is an indispensable attribute of scholarly knowledge itself. Nevertheless, these efforts sometimes encounter obstacles posed by the presence of objects, knowledge about which is difficult to universalize, primarily because of their functional dependence on other processes and phenomena. This is exactly the case with argumentation. Arguing that functions to be performed by argumentation vary considerably depending on the nature of the activity that argumentation serves, this article explores how the process of justification of constitutional judgments contributes to the development and functioning of the legal order and thereby reveals the purpose and functions of constitutional argumentation. Having synthesized the existing knowledge on judicial review of legislation with the possibilities that the means of argumentation provide to courts, and having indicated which judicial review tasks can be performed exclusively by resorting to argumentation, the author identifies the normatively correcting, normatively guiding (prognostic), cognitive and legitimizing functions of constitutional argumentation. This article gives specific reasons for highlighting the aforementioned functions and further details their substance. The author also focuses on the nodal nature of the cognitive function of constitutional argumentation, which is being implemented in three relatively autonomous dimensions: constitutionally due, normatively present, and being. Given that constitutional argumentation performs a normatively correcting function and that a constitutional dispute is characterized by a divergence of interests of its participants, the author refuses to consider the audience’s persuasion and its assent to a given thesis as an invariant purpose of constitutional argumentation. The article concludes that constitutional argumentation, because of its dependence on judicial review tasks, is aimed primarily at the formation of adequate understanding of constitutionally so that constitutional review organs may correctly and legitimately assess the constitutionality of a challenged law.