Atienza (2002, p. 170) considers Robert Alexy to be one of the main representatives of the aforementioned standard theory of legal argumentation, and Feteris (2017, p. 117) assesses that the theory developed by Alexy is the most elaborate and systematic theory of legal argumentation. For these reasons, I consider it relevant to examine Alexy’s approach to legal interpretative arguments.
Regarding this, Alexy (2015, p. 70) differentiates four categories: linguistic, genetic, systematic, and general practical arguments. Linguistic arguments include syntactic and semantic arguments, the latter referring to the common meaning, which should prevail when the norm under discussion must be known by all citizens, or to the specialized meaning, which should prevail when the norm concerns a technical matter (Alexy, 2015, p. 71).
He clarifies that genetic arguments deal with the real will of the historical legislator and subdivides them into two groups: the semantic-subjective and the teleological-subjective (Alexy, 2015, p. 71-72). The semantic-subjective argument is used to argue that the historical legislator attached a certain meaning to a textual provision. The teleological-subjective argument, on the other hand, is used to argue that the historical legislator sought to achieve certain purposes with a norm.
Systematic arguments are based on the coherence of the legal system and are divided into eight subgroups (Alexy, 2015, p. 72): 1) consistency-assuring arguments, which aim to resolve or prevent contradictions between norms; 2) contextual arguments, which aim to interpret a norm based on its position in the text of the law or its relationship with other norms; 3) systematic-conceptual arguments, which seek conceptual clarity and systematic completeness; 4) principle-based arguments, which apply legal principles; 5) special arguments, among which is analogy; 6) precedent-based arguments; 7) historical arguments, which rely on the history of the problem to be solved by the norm; 8) comparative arguments, which seek similarities or differences between norms of different countries.
Within general practical arguments, Alexy (2015, p. 73-74) distinguishes two groups: teleological and deontological. Teleological arguments are used to support the idea that an interpretation facilitates the achievement of the aims sought by the norm, while deontological arguments are used to support an interpretation that something is just or unjust regardless of the consequences.
Bibliographic references
ALEXY, Robert. Direito, razão, discurso: estudos para a filosofia do direito. Translated by Luís Afonso Heck. 2. ed. rev. Porto Alegre: Livraria do Advogado Editora, 2015.
ATIENZA, Manuel. As razões do direito: teorias da argumentação jurídica. Translated by Maria Cristina Guimarães Cupertino. 2. ed. São Paulo: Landy Editora, 2002.
FETERIS, Eveline T. Fundamentals of legal argumentation: a survey of theories on the justification of judicial decisions. Amsterdam: Springer, 2017.