Theory of argumentation, the world of life and argumentative practice

Abstract

Must a theory of argumentation in law considerer as its central theme only the Supreme Court's decisions? In order to answer this question, a link is established between a theory of argumentation and the teaching of arguments in law school classrooms. This paper's thesis is that pedagogical practices have privileged the guiding idea of rational progress and have considered that arguments can be reconstructed on the basis of a rationale supported by logical beliefs. This paper maintains however, that such an aproach provides a partial understanding of the structure of the judicial process, and leaves aside some aspects that should be in the center of theissue, mainly the necessary introduction of the life-context and political-context of the arguments in law that aren't considered as relevant in the traditional analysis of the argumentative structure of a high court decision. The hermeneutical approach is recommended as a viable alternative to formalism for its capacity to involve the possible views that are unconsidered in the traditional approaches. In this sense, the whole of a judicial process can be seen in an adequate and more comprehensive perspective.