Legal Argumentation and the Nature of Law

Abstract

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law.

Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

Keywords: legal argumentation, interpretation, application, functional kinds, Michael Moore, Joseph Raz, Robert Alexy, Alf Ross