The (Ir)rationality of Judicial Decision-Making: the Typological Argument against a Rigid Separation between the Context of Discovery and the Context of Justification of Legal Decision

  • Marko Novak

Izvleček

The article deals with the problem of separation between the

context of discovery and the context of justification of legal decisions,

which is a basic theme in legal argumentation theory. First,

the context of discovery focuses on the process of reaching a decision,

which comprises the following major steps: (a) identifying

the facts of the case; (b) discovering the relevant legal norms; and

(c) deciding whether the established facts of the case can be subsumed

under legal norms, with this leading to a legal decision at

the conclusion of the decision-making process. Second, the context

of justification is, however, only concerned with justification

of the legal decision through the application of relevant legal arguments.

Therefore, the majority of legal theorists interested in

legal argumentation theory support the position that the mentioned

two contexts are rigidly separated, in the framework of which

the process of discovery is mainly studied by psychologists while

the process of justification is the only area that should be relevant

for legal argumentation theory. I oppose such a rigid separation

between the two contexts and view it as a position that is too idealist.

Instead, I support a more realistic position of their moderate

separation, whereby I recognise the importance of the discovery

context while still insisting on the major relevance of the justification

context.

References

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Objavljeno
2018-12-18