Legal Argumentation: An Analysis of its Form

IMost 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.'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.2The distinctions which define the concept are:( 1) operation/observation;(2) self-observation/observation of others;(3) disputed/undisputed.