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Юридическая аргументация
Legal argumentation is by its nature a rhetorical, or quasi-logical, argumentation, as it is aimed at persuasion of the audience and the adherence of minds to the position of a rhetor, and it is built on probable, rather than truе, premises and deals not with the deduction of conclusion from the axioms in the manner consistent with the rules of deduction or induction, but with the decision-making, which should be a result of consideration of different view-points. With references to works by Aristotle, Perelman & Olbreacts-tyteca, Vieweg, Alexy and Russian legal scholar Vladimirov, the author identifies the distinctions between the legal argumentation and formal reasoning in logics. By using the ancient doctrine of topoi (commonplaces) and applying it to the analysis of judicial decisions of different countries, she further singles out topoi of legal reasoning as a “seats of arguments”, from which the practicing lawyers may draw the arguments in support of their position or look for possible interpretations of the text of a statute, which would better comply with justification of their legal position in a case they need to argue. Such topoi as maxims of law, letter of law, precedent, legislative intent, ends (aims) of law, best consequences, evolution of a legal norm in the process of social changes, concepts of law and legal doctrines, social and political values, scientific data, social theories, statistics and commonsense. As far as any of them can serve as a source of several claims and warrants in their support, which enable to justify opposite results, the types of arguments, which can be equally justified inside of topoi, are adduced. The final stage of the process of legal reasoning is the balancing exercise, when the conflicting values are weighted against each other, and the final choice is made. This balancing exercise is treated in terms of rhetoric as a process of resolution of rhetorical antinomies. They may be resolved differently in different legal systems and legal cultures, depending upon the epideictic system of the concrete societies and on how these values are built into hierarchies.
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