Argumentajuris

Introduction

The theme of this post is six forms to justify a norm complied with by an individual in a concrete situation. These forms also serve to justify a value judgment applied by an individual in a concrete situation. The forms establish procedures of justification, but do not define the content of norms and value judgments.

Alexy (1989, p. 197 and 201) says that these forms are specific to general practical discourse and can be combined with each other. These forms are equally relevant in legal discourse, as it represents a specific instance of practical discourse.

Terminological clarification

Normative propositions encompass value judgments and norms that oblige, allow or prohibit actions to be practiced. These propositions are general when they refer to a group of individuals or actions.  Or such propositions are singular if they refer to a particular individual and action.

Analysis of the two forms of first-level justification

A singular normative proposition can be justified by two first-level forms (Alexy, 1989, p. 198-199):

1) On the basis of the conditions for the application of a general norm; such conditions are characteristics of people, objects or situations that must be present to make the application of the general norm mandatory;

2) Or on the basis of the consequences of complying with a general norm; These effects can be of two types: a) a current state of affairs that occurs if the general norm is in force; b) a future state of affairs that will happen if the general norm is in force.

A theoretical discourse is needed to confirm if the conditions for applying a general norm are met, and if its outcomes occur or will occur (Alexy, 1989, p. 198-199).

To explain these two forms of first-level justification, I use below an example of a singular normative proposition that prohibits an individual X from stealing an object O belonging to an individual Y. Consider that the aforementioned singular normative proposition is based on the following general norm: no one should steal.

The first form to justify the singular normative proposition determines that individual X must show that the conditions for the application of the general norm are present. These conditions are as follows: a) object O belongs to individual Y; b) individual X intends to take object O without the consent of individual Y; c) the intended action fits the definition of theft. Due to the fulfillment of the conditions, individual X concludes that he or she should not steal object O belonging to individual Y.

If individual X uses the second form, he or she must justify the singular normative proposition by presenting the consequences of applying the general norm: cooperation and trust between people. Once these effects are assessed as desirable, individual X infers that he or she should not steal object O belonging to individual Y.

Analysis of the two forms of second-level justification

At the second level of justification, it is not the singular normative proposition that must be justified, but rather the general norm (Alexy, 1989, p. 199). Still using the example of the prohibition of theft, a more general norm should be sought to serve as a foundation for the general norm.

Admit that the more general norm is to respect another individual’s property rights. This more general norm covers the duties of not stealing and not causing damage to another individual’s property. In this example, the conditions for the application and the consequences of the more general norm are similar to those of the general norm, since the latter is included in the former.

With the use of the third form, the general norm “no one should steal” must be justified on the basis of the conditions for the application of the more general norm “respect another individual’s property rights”. The following conditions are applicable: a) object O is owned by individual Y; b) the act of taking object O without the consent of individual Y constitutes a breach of the duty to respect another individual’s property rights.   Thus, individual X deduces that he or she should not steal object O from individual Y.

If individual X employs the fourth form, he or she must justify the general norm “no one should steal” based on the consequences of observing the more general norm “respect another individual’s property rights”: cooperation and trust between people. Since these outcomes are desirable, individual X concludes that he or she should not steal object O from individual Y.

Analysis of the two forms of the third level

In the example analyzed, the singular normative propositions which resulted from the four forms of justification were the same. However, it is possible that these four forms yield different justifications in another concrete situation. In this case, two forms are needed to define which justification prevails (Alexy, 1989, p. 200-201):

1) The form of unconditional priority establishes that a normative proposition always predominates in relation to other normative propositions;

2) In turn, the form of conditional priority stipulates that the predominance of a normative proposition only occurs if certain conditions are present.

Conclusion

Alexy identifies six forms of justification of normative propositions. Because they are only forms, they do not define the content of justified normative propositions. The forms include two that address the application conditions and outcomes of the general norm, two that pertain to the application conditions and effects of the more general norm, and two that deal with questions of priority.  The six forms can be combined with each other in a variety of ways.

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.

Below are links to the posts in which I examined the previous groups of argumentative rules:

1) First group;

2) Second group;

3) Third group.