TY - CHAP
T1 - Construction or reconstruction? On the function of argumentation in the law
T2 - On the function of argumentation in the law
AU - Hage, J.C.
PY - 2012/1/1
Y1 - 2012/1/1
N2 - This paper discusses the viability of legal constructivism, the view that the legal consequences of a case are what the best legal argument says they are. Legal constructivism is opposed to reconstructivism, the view that legal arguments merely aim at establishing what the independently existing legal consequences are. It is first argued that legal reconstructivism is at best a view that can neither be verified nor falsified, and that legal arguments are what really matters. The argument continues with a discussion of ontological constructivism, the view that the legal consequences depend on the best possible legal argument. It is argued that ontological constructivism does not make sense in the law, because it presupposes a closed domain, while the law is an open domain. The paper closes with a discussion of procedural constructivism, the view that the legal consequences are determined by the best actual legal argument. This is the most attractive view, not in the least because its alternatives cannot well be defended. The most important objection against this view, that the best actual argument may lead to a wrong conclusion, is rejected because it presupposes that the legal consequences were already there.
AB - This paper discusses the viability of legal constructivism, the view that the legal consequences of a case are what the best legal argument says they are. Legal constructivism is opposed to reconstructivism, the view that legal arguments merely aim at establishing what the independently existing legal consequences are. It is first argued that legal reconstructivism is at best a view that can neither be verified nor falsified, and that legal arguments are what really matters. The argument continues with a discussion of ontological constructivism, the view that the legal consequences depend on the best possible legal argument. It is argued that ontological constructivism does not make sense in the law, because it presupposes a closed domain, while the law is an open domain. The paper closes with a discussion of procedural constructivism, the view that the legal consequences are determined by the best actual legal argument. This is the most attractive view, not in the least because its alternatives cannot well be defended. The most important objection against this view, that the best actual argument may lead to a wrong conclusion, is rejected because it presupposes that the legal consequences were already there.
U2 - 10.1007/978-94-007-4670-1_9
DO - 10.1007/978-94-007-4670-1_9
M3 - Chapter
SN - 978-94007-4669-5
SN - 978-94-017-8235-7
T3 - Law and Philosophy Library
SP - 125
EP - 144
BT - Legal argumentation theory
A2 - Dahlman, C.
A2 - Feteris, Eveline
PB - Springer
CY - Dordrecht
ER -