Argumentajuris

In another post, I analyzed the first group of argumentative rules that aim to ensure the rationality of general practical discourse. In this post, I examine the second group, which Alexy (1989, p. 191-195) calls rationality rules and formulates as follows:

(2) Every speaker must give reasons for what he or she asserts when asked to do so, unless he or she can cite reasons which justify a refusal to provide a justification.

[…]

(2.1) Everyone who can speak may take part in discourse.

[…]

(2.2) (a) Everyone may problematize any assertion.

(b) Everyone may introduce any assertion into the discourse.

(c) Everyone may express his or her attitudes, wishes and needs.

[…]

(2.3) No speaker may be prevented from exercising the rights laid out in (2.1) and (2.2), by any kind of coercion internal and external to the discourse.

Whoever says something implicitly associates with that statement the claim that it is true with regard to facts or correct in terms of norms. This implied claim may be questioned by another person, who may ask the speaker to provide reasons that prove the truth or correctness of the claim.

In this situation, rule (2) imposes on the speaker the duty to justify what he or she says unless he or she presents reasons to escape this duty. This same rule grants everyone the right to ask the speaker to justify his or her statement.

Rule (2.1) gives the person who can speak the right to participate in the discourse. This rule raises the question of people who cannot communicate either by speech or by sign language. Such people need a representative who defends their interests in the discourses.

Rules (2.2)(a), (2.2)(b) and (2.2)(c) allow everyone to question, inform and give their opinion during an argumentation. The act of participating in an argumentation presupposes considering the participants as holders of the same argumentative rights. If this equality of argumentative rights does not exist, then a communicative interaction cannot be called argumentation.

Rule (2.3) prohibits the rights of speakers defined in (2.1), (2.2)(a), (2.2)(b) and (2.2)(c) from being reduced or suppressed by factors internal to the discourse or outside it. However, it is almost impossible for this prohibition to be fully enforced because there are individual biological, economic, and social differences that, in fact, reduce or suppress argumentative rights.

Alexy (1989, p. 193-194) lists five functions that the argumentative rules of the second group perform:

1) as a negative criterion (along with the other argumentative rules) they serve to evaluate normative propositions as incorrect if any of these rules are not complied with;

2) as a positive criterion (also together with the other argumentative rules) they are used to evaluate normative propositions as correct if the rules are complied with; however, the verification of compliance is not a simple procedure;

3) as a parameter of criticism of unjustifiable restrictions on the rights of the participants in the argumentation;

4) as an ideal to which speakers should approach through practice and organizational measures;

5) as an explanation of the claim that speakers have that their empirical propositions are true and that their normative propositions are correct; I clarify that empirical propositions refer to facts and normative ones cover norms that oblige, allow or prohibit certain actions.

Bibliographic references

ALEXY, Robert. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Translated by Ruth Adler and Neil MacCormick. 1st ed. New York: Oxford University Press, 1989.