Introduction
This post deals with the distinction between internal and external justification of judicial decisions according to Robert Alexy.
The two types of justification for a judicial decision
Internal justification is the syllogism between premises that results in a conclusion. There are three types of premises used in internal justification (Alexy, 1989, p. 230): 1) norms of positive law; 2) empirical statements; 3) premises that are neither norms of positive law nor empirical statements.
In turn, external justification aims to prove that empirical premises are true and that other types of premises are correct. Several methods of external justification are used according to the type of premise (Alexy, 1989, p. 230):
1) To justify a rule of positive law, evidence must be presented that it is in accordance with criteria for the validity of legislation;
2) The justification of empirical statements is achieved with methods of the empirical sciences, with rules of rational presumption and with rules of burden of proof in the judicial process;
3) Legal argumentation is used to justify premises that are neither norms of positive law nor empirical statements.
Conclusion
Robert Alexy’s theory of legal argumentation distinguishes two types of justification in judicial decisions: 1) internal, which refers to the syllogism between premises that results in a conclusion; 2) and the external, which is performed to prove that the empirical premises are true and to prove that the other premises are correct.
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.