A theory of legal argumentation : the theory of rational discourse as theory of legal justification
著者
書誌事項
A theory of legal argumentation : the theory of rational discourse as theory of legal justification
Clarendon Press , Oxford University Press, 1989
- タイトル別名
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Theorie der juristischen Argumentation : die Theorie des rationalen Diskurses als Theorie der juristischen Begründung
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注記
Originally presented as the author's thesis (doctoral)--Georg-August University of Göttingen, 1976
Bibliography: p. [303]-316
Includes indexes
内容説明・目次
内容説明
"Theorie der juristischen Argumentation" is the original German work from which this has been translated. It presents a theory of legal reasoning which pre-supposes a theory of general practical reasoning. This theory is the subject matter of the first two parts of the book. The result is a theory of general practical discourse which rests on insights of both Anglo-Saxon and German philosophy. It forms the basis of the theory of rational legal discourse, which is developed in the third part of the book. Alexy attempts to give insights into what is understood by "rational legal argument" and to answer questions such as: "To what extent can legal reasoning be rational?", "Is the demand for rationality in legal affairs justified?" and "What are the criteria of rationality in legal reasoning?" He sees rational legal argumentation as important not only for the standing of academic law as a scientific discipline, but also for the legitimacy of judicial decisions. The work may be of interest to law students, lawyers, legal theorists and legal philosophers.
目次
- Introduction: the problem of the justification of legal decisions
- topic theory and its limits
- towards assessing whether contemporary methodological discussions reveal a need for a theory of rational legal argumentation. Part 1 Reflections on some theories of practical discourse: practical discourse in analytic moral philosophy - naturalism and intuitionism, emotivism, practical discourse as a rule-governed activity including Wittgenstein and Austin, Hare's theory, Toulmin's theory, Baier's theory
- some interim results
- Habermas' consensus theory of truth - Habermas' critique of the correspondence theory of truth, combining speech act theory and a theory of truth, distinguishing between action and discourse, the justification of normative statements, the logic of discourse, the ideal speech situation, critical discussion of Habermas' theory
- the theory of practical deliberation of the Erlangen School - the programme of the constructive method, the presupposed purpose of constructivist ethics, the principles of constructivist ethics, the critical genesis of norms
- Chaim Perelman's theory of argumentation - the theory of argumentation as a logical theory, argumentation as a function of audience, demonstration and argumentation, the concept of the universal audience, persuading and convincing, Perelman's analysis of the structure of argumentation, the rationality of argumentation. Part 2 Outline of a theory of general rational practical discourse: the problem of the justification of normative statements
- possible theories of discourse, the justification of rules of discourse
- the rules and forms of general practice discourse - the rationality rules, rules for allocating the burden of argument, the justification rules, the transition rules
- the limits of general practical discourse. Part 3 A theory of legal argumentation: legal discourse as a special case of general practical discourse
- the outline of a theory of legal argumentation - internal justification, external justification
- legal and general practical discourse.
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