Introduction
The theme of this post is the external justification with regard to facts in judicial decisions from Robert Alexy’s perspective.
Facts in judicial decisions
There are several types of facts: concrete actions, motives of agents, events, states of affairs, and regularities of the natural or social sciences (Alexy, 1989, p. 232).
Alexy (1989, p. 102 and 107) contrasts the consensus theory of truth and the theory of truth as correspondence. In the view of the first theory, fact is the meaning of a statement about the world that can be justified with rational arguments. According to the second theory, fact is a state of affairs that exists in the world.
Alexy (1989, p. 137) does not clearly endorse the consensus theory of truth and states that the concept of truth deserves a specific investigation. Nor does he explicitly adopt the theory of truth as correspondence. In summary, he does not inform to which concept of truth he adheres.
Argumentation about facts is called theoretical discourse by Alexy. He evaluates that this type of argumentation is relevant to confirm whether the conditions for the application of a norm are met and whether its results occur or will occur (Alexy, 1989, p. 198).
To deal with situations of incomplete knowledge about facts, Alexy (1989, p. 233) argues that rules of rational presumption are necessary. However, he does not develop such rules.
The truth of statements about facts can be proven by methods of the natural or social sciences, by the aforementioned rules of rational presumption, and by rules of the burden of proof in the judicial process (Alexy, 1989, p. 230).
Conclusion
Although Alexy does not explain which concept of truth he adopts, he recognizes the importance of argumentation about facts even when norms and value judgments are discussed.
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.