Argumentajuris

Introduction

The subject of this post is the forms of genetic arguments analyzed by Robert Alexy. These forms are used to argue that a legal norm should be interpreted in a certain way because that would be the will of the legislator.

Two forms of genetic arguments

There are two forms of genetic arguments (Alexy, 1989, p. 236-239). The first refers to the meaning that the legislator intended to give to a normative text. The second concerns the goal that he or she aspires to achieve.

The first form states that if an interpretation R’ of an abstract norm R with the aid of the rule of use of words W is desired by the legislator, then interpretation R’ must be chosen.

The second form has four premises and one conclusion:

1) The legislator intends to achieve objective Z with the abstract norm R;

2) It is mandatory to seek to achieve objective Z in the application of the abstract norm R because the legislator also wants this;

3) If it is mandatory to achieve objective Z, then any means necessary for the attainment of that objective is mandatory;

4) If interpretation R’ of the abstract norm R is not chosen with the aid of the rule of use of words W, then objective Z will not be achieved;

5) Interpretation R’ must be chosen.

Difficulties of genetic arguments

It is difficult to determine who is the subject of the legislator’s will and what is the content of that will (Alexy, 1989, p. 238-239). In the case of parliaments, it is impossible to ascertain the will of all representatives who voted in favor of the rule in question.

A remedy for this difficulty would be to investigate only the will of the group of representatives who eventually issued an opinion in a certain committee through which the bill passed before becoming law. An interpretation of the expression of such an opinion would be necessary.

Therefore, genetic argumentation is a type of empirical argumentation because it seeks to discover facts about the will of the legislator.

Conclusion

There are two forms of genetic argument. The first form refers to the meaning that the legislator intended to attribute to the text of a norm. The second form is related to the objective that he or she seeks to achieve with the norm.

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.