Introduction
This post deals with the distinction between internal and external justification of judicial decisions according to Robert Alexy.
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Evaluation of Pierluigi Chiassoni’s approach to legal interpretative directives
Chiassoni’s approach is only useful for accurately identifying the primary, secondary, and tertiary directives that judges adopt in their decisions, as he does not present parameters for evaluating the correctness of the use of these directives. This lack of evaluation criteria stems from Chiassoni’s skeptical theoretical assumptions about judicial interpretation.
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Secondary and tertiary directives for legal interpretation identified by Pierluigi Chiassoni
Secondary directives
Chiassoni (2020, p. 162) identifies three groups of secondary directives, which hierarchize the use of primary directives: 1) selective directives; 2) procedural directives; 3) and preferential directives.
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Primary directives for legal interpretation identified by Pierluigi Chiassoni
Primary directives (Chiassoni, 2020, p. 133) indicate to the interpreter how to proceed in assigning at least one meaning to a provision. Chiassoni (2020, p. 134) lists twenty-eight primary directives grouped into six categories:
1) directives for linguistic interpretation;
2) directives for (pseudo)psychological interpretation;
3) directives for authoritative interpretation;
4) directives for teleological interpretation;
5) directives for systematic interpretation;
6) and directives for heteronomous interpretation.
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Directives for legal interpretation according to Pierluigi Chiassoni
Chiassoni (2020, p. 157-158) argues that the expression “interpretative argument” can refer to at least three different things: 1) a major premise of a syllogism; 2) a model of argument; and 3) a concrete argument.
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Evaluation of Robert Alexy’s approach to legal interpretative arguments
Alexy’s approach (2015, pp. 61-76) to legal interpretative arguments is relevant both in elucidating the link between linguistic argument and the principles of legislative authority, democracy, separation of powers, and the rule of law, and in establishing provisional hierarchies between interpretative arguments.
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Provisional hierarchies between legal interpretative arguments according to Robert Alexy
According to Alexy (2015, p. 74), there are two types of rules of legal argumentation. The rules of the first type establish when and how arguments should be used, and the rules of the second type define what to do in case of conflict between the rules of the first type.
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Legal Interpretative arguments according to Robert Alexy
Atienza (2002, p. 170) considers Robert Alexy to be one of the main representatives of the aforementioned standard theory of legal argumentation, and Feteris (2017, p. 117) assesses that the theory developed by Alexy is the most elaborate and systematic theory of legal argumentation. For these reasons, I consider it relevant to examine Alexy’s approach to legal interpretative arguments.
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Standard theory of legal argumentation
In the field of legal argumentation studies, Atienza (2017, p. 34) reports that, since the end of the 1970s, what he calls the standard theory has predominated.
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