This essay discusses the developments and trends of research in legalargumentation of the last 25 years. The essay starts with a survey of thevarious approaches which can be distinguished: the logical approach, therhetorical approach, and the dialogical approach. Then it identifies varioustopics in the research, which constitute the various components of aresearch programme of legal argumentation: the philosophical component, thetheoretical component, the reconstruction component, the empiricalcomponent, and the practical component. It concludes with a discussion ofthe main trends in the research (...) of the last 25 years. (shrink)

According to the author there is no doubt that one has to distinguish between the justification and the application of norms. Problems are seen only to arise if one asks what exactly the distinction is and which consequences have to be drawn from it. Recently, Klaus Günther, in particular, has searched for this distinction and connected it with far‐reaching conclusions concerning the theory of norms, arguments, and morals. His theses are the object of the author's considerations.

This paper argues that Habermas's conception of the rationality of moral and legal discussions has import for argumentation theorists interested in the rationality of public deliberations in politics and law. I begin with a survey of Haber mas's discourse theory and his criteria of rationality for moral and legal discourse. I then explain why, in his view, the forms of rational discourse in morality and law complement each other. My aim is to show how Habermas's account of this complementary relationship (...) opens up fruitful perspectives for argumentation theory. Specifically, his thought can stimulate research regarding, on the one hand, the ways in which legal procedures provide for presumptively rational resolutions of moral disputes and, on the other hand, the applicability of ideal argumentation-theoretic models to the legal field. I conclude with a proposal for integrating Habermas's ideas in a research program for legal argumentation. (shrink)

Human dignity defines the foundation of mutual respect between persons in the law. In German constitutional law it defends a realm of individual freedom and inviolable protection against the interests of the collective. Dignity as a legal concept is not a good to be balanced or weighed against other goods, but a prohibition norm, not a reason but a constraint, thus guaranteeing a non-consequentialist and especially a non-utilitarian understanding of basic rights.