A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification.

• Author: Bruschke, Jon
• Position: Book review

A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. By Robert Alexy. New York: Oxford University Press, 2010. pp. 352.

The casual fan of baseball, or even someone who reads the standings without studying the box scores, might have a difficult time telling the difference between a game in the American as opposed to the National League. The bases are the same distance apart, the game has been scored the same way for the past 100 years, the pitchers all throw over 90 miles an hour, and the players are all large and muscular. But to the true student of the game, the subtle differences in style between the leagues are both apparent and important. If I might be granted a little editorial license as I pen this review the day before the start of baseball season, I will note that all of the greatest deficiencies in baseball (the designated hitter rule, Astroturf, the Texas Rangers) seem to cluster in American League.

Argument theorists might also be seen as coming from different leagues, very roughly divided into those trained in a philosophical tradition and those schooled in the field of communication. Call them the Philosophical League and the Communication League. To the specialist outside the field, the differences in approach might seem small; we generally cite the same cannon of authors (Toulmin, Perelman, Habermas, etc.) and teach classes with similar titles. Although it is now apparent that discourse, context, and power play a mighty role in the interpretation of arguments, or indeed any text, how these two leagues grapple with these issues does differ. Without calling either league deficient, a specialist in the field can see important differences.

Those of a philosophical bent seem forever drawn back to the study of logical forms. Though many are not as quick as Frege to mathematize argument, and convert the natural language into abstract symbolic form that might be studied for logical structure, the call to the study of form seems eternal. Those schooled in a communication tradition more easily see arguments as rough-and-tumble affairs, especially those of us with backgrounds in intercollegiate debate (where arguments tumble roughly if they do nothing else). It is far less difficult for us to think of arguments as sharing the characteristics of all discourse, and it seems far more strange to imagine that discourse can be stripped of context and converted to formulae.

What we tend to agree on is this: Deductive arguments lend themselves well to analytic approaches, but the vast majority of arguments advanced in any debate that matters rarely take this form. How can we tell when the rest of the arguments out there (all...