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58 Mod. L. Rev. 285 (1995)
Legal Argumentation: An Analysis of its Form

handle is hein.journals/modlr58 and id is 299 raw text is: THE

Volume 58                         May 1995                               No. 3
Legal Argumentation: An Analysis of its Form
Niklas Luhmann *
Most theories of legal argumentation are concerned with the justification of legal
decisions. That argument is concerned with justification is something which for
lawyers (as for almost all who use the term) is determined in the very concept of
argument and requires no further explanation. I This is also the starting point for
the considerations which follow here. We will not, however, seek to offer those
engaged in argument further assistance in the search for sound, convincing
grounds. No doubt there is good sense in justifying decisions and distinguishing
between more or less convincing arguments. After all, where decisions are
concerned, it cannot really be disputed that any decision could have been made
differently. Given this contingent nature of decision, it is no doubt appropriate to
adduce reasons for one possibility of deciding rather than the other. What follows
is not, then, a revival of that old scepticism which endeavoured (successfully) to
disclose the fact that grounds cannot ground. Instead, let us start with a paradox:
that grounds are needed which cannot be grounded; that is, grounds which are not
grounds. The point will then be to 'develop' this paradox through the observation
and description of the conduct of those trained in handling arguments.
We must therefore first clarify the concept of argumentation and free it from its
tautological version as grounding. This at the same time requires a move to an
operational, non-teleological way of conceptualising the questions. In other words,
we have to avoid a conceptual form like 'grounding' in which the case of failure is
not included.2 The distinctions which define the concept are:
(1) operation/observation;
(2) self-observation/observation of others;
(3) disputed/undisputed.
*Professor of Sociology, University of Bielefeld.
Translated by lain Fraser, edited by Tim Murphy and Gunther Teubner.
1 See Struck, Zur Theorie juristischer Argumentation (Berlin: Duncker and Humblot, 1977); Alexy, A
Theory of Legal Argumentation (Oxford: Clarendon Press, 1989). The same is true of non-legal
argumentation theories too: see Toulmin, The Uses of Argument (Cambridge: Cambridge University
Press, 1958).
2 The solution which has become customary in modern times, namely to focus on intention and then
distinguish between successful and unsuccessful attempts at grounding, is unsatisfactory, since in
'intention' it points to a 'subjective' situation, with the further intention of using it as an objective
criterion. That is why we redirect the focus away from subject-based theory towards systems theory.

© The Modern Law Review Limited 1995 (MLR 58:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1N and 238 Main Street, Cambridge, MA 02142, USA.

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