Legal Argumentation and the Rule of Law
This article has been published as 'The Rule of Dual-Natured Law' in Legal Argumentation and the Rule of Law, edited by Eveline Feteris, Harm Kloosterhuis, José Plug, and Carel Smith, 27–46. 2016. The Hague: Eleven International Publishing.
14 Pages Posted: 12 Jun 2017
Date Written: 2016
Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.
Keywords: balancing, concept of law, dual-nature thesis, further development of the law, interpretation, irrationality objection, legal argumentation, principle of legality, proportionality, rule of law
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