What Makes for a Valid Legal Argument? (Editorial)
Leiden Journal of International Law, 2014 Forthcoming
8 Pages Posted: 8 Aug 2014
Date Written: May 2014
For a while now international law has been presented as a practice of arguing. At the same time, there is little engagement with what it means, to argue. That is surprising as much turns on it. While scholars and practitioners tend to converge on thinking about international law as an argumentative practice, they remain worlds apart depending on what they understand to be the nature of arguing. There is much to gain from a closer inquiry. Hans Wohlrapp submits on a general note that arguing becomes ever more important as the concept of truth continues to erode. If we do not agree on what is true, we argue about it – in law as in everyday life. But how can the practice of arguing aim to convince interlocutors of the truth of claims if that point of reference (truth) is unavailable or, in other words, if it forms the exact subject of the argument? Conversely, if truth is an unavailable reference point, how can arguments be assessed? There might then be no arguments at all, but competing opinions alone. The question would then not be what is true or worthy of acceptance, but what is, in fact, successful and accepted. Finally, what would the typically praised middle way look like that finds truth in what is consensually or conventionally seen to be true, and to what extent does it help to understand the nature of arguing? Asking what makes for a valid – rather than a true or successful – legal argument already comes with a programmatic suggestion in that latter direction. The present editorial for the Leiden Journal of International Law spells out what that third way might look like.
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