Argumentajuris

Introduction

In this post, I examine the argumentative rules that directly define the content of norms and value judgments in general practical discourse. These rules are called justification rules by Robert Alexy (1989, p. 202) and are transcribed and examined in the next section. Since legal discourse is a special case of general practical discourse, the rules of the latter apply to the former as well.

Analysis

Alexy (1989, p. 203-205) formulates the aforementioned rules as follows:

(5.1.1) Everyone who makes a normative statement that presupposes a rule with certain consequences for the satisfaction of the interests of other persons must be able to accept these consequences, even in the hypothetical situation where he or she is in the position of those persons.

[…]

(5.1.2) The consequences of every rule for the satisfaction of the interests of each and every individual must be acceptable to everyone.

[…]

(5.1.3) Every rule must be openly and universally teachable.

[…]

(5.2.1) The moral rules underlying the moral views of a speaker must be able to withstand critical testing in terms of their historical genesis. A moral rule cannot stand up to such testing if:

(a) even though originally amenable to rational justification, it has in the meantime lost its justification, or

(b) it was not originally amenable to rational justification and no adequate new grounds have been discovered for it in the meantime.

[…]

(5.2.2) The moral rules underlying the moral views of a speaker must be able to withstand critical testing in terms of their individual genesis. A moral rule does not stand up to such testing if it has only been adopted on grounds of some unjustifiable conditions of socialization.

[…]

(5.3) The actually given limits of realizability are to be taken into account.

Rule (5.1.1) mentions “normative statement that presupposes a rule “. It is necessary to clarify two aspects of this rule (5.1.1): a) this normative statement encompasses norms and value judgments; b) these norms and value judgments are based on a general rule whose purpose is to satisfy the interests of other people.

The justification rules comprise six rules. Of this total, only rules (5.2.1) and (5.2.2) use the adjective moral. For this reason, I understand that the other justification rules apply to both moral and non-moral norms and value judgments.

Rule (5.1.1) requires acceptance of consequences by a speaker in the hypothetical position of other people when he or she affirms a norm or value judgment based on a general rule that affects other people’s interests.

While rule (5.1.1) imposes acceptance of the consequences of the general rule by an individual, rule (5.1.2) is more demanding as it requires acceptance of these consequences by all those affected. Therefore, neither rule (5.1.1) nor rule (5.1.2) could be complied with in the event of a conflict of interest between those affected.

A theoretical discourse is needed to define the consequences to which rules (5.1.1) and (5.1.2) refer.

Rule (5.1.3) demands that norms and value judgments be public. The absence of publicity would prevent norms and value judgments from being universal. Since only universal norms and value judgments can be designated as moral, non-public norms and value judgments could not receive this label.

According to rule (5.2.1), moral norms and value judgments that arose at another historical moment must be able to be rationally justified now. This rule prohibits norms and value judgments that are based only on tradition from being classified as moral.

Rule (5.2.2) establishes that norms and value judgments cannot be considered moral if a speaker has adopted these norms and value judgments as a result only of unjustifiable socialization conditions. Alexy does not explain what those conditions might be, but I believe they include being socialized in a community of fanatics.

Finally, rule (5.3) aims to prevent the formulation of norms and value judgments that are impossible to put into practice.

Conclusion

Of the six justification rules, two apply only to moral norms and value judgments and four apply to both moral and non-moral norms and value judgments. The justification rules directly determine the content of norms and value judgments. However, the determination is not complete, since these rules leave a wide margin of freedom to those affected to concretely delimit the content.

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;

4) Fourth group.