Introduction
This post examines the forms of historical arguments in judicial decisions according to Robert Alexy (1989, p. 239). These forms use historical learning to argue that an interpretation of a norm should or should not be accepted.
Forms of historical arguments
Imagine the scenario in which an interpretation of a legal norm is a solution to a current legal problem, and that a similar solution when applied to a past legal problem produced a positive or negative effect.
Forms of historical argument employ knowledge about facts to argue that a current interpretation should or should not be accepted according to the evaluation of the effect of that previous solution as positive or negative.
One form of historical argument has four premises and one conclusion:
1) The problem currently discussed has already been solved in the past;
2) This solution led to consequence C;
3) C is undesirable;
4) C can occur today because the previous situation and the current situation are similar;
5) Thus, the solution is not acceptable today.
Conclusion
Forms of historical arguments use historical knowledge about the positive or negative effect of a previous legal interpretation to argue that a similar current legal interpretation should or should not be accepted.
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.