The legal decision in a concrete case is never completely given in advance in the statute. A theory of legal decisionmaking that sees the decider as someone who merely "applies the law" is inadequate to explain what goes on in the process of legal decisionmaking. The legal decision is a value synthesis assessing the normative starting point with regard to the factual starting point, and vice versa. This means that a legal decision can only be made when the normative state of constituent facts of the case has been formed on the basis of the statute, when from the life case the legally-relevant state of facts has been worked out, and when it has been established that the latter is an example of the normative state of constituent facts to which a certain legal consequence is linked. The theory of argumentation described in this essay examines the nature of the process of legal deciding as such, and offers to legal decisionmakers an appropriate methodology for understanding their own actions, and for filling up the ambiguous space between norm and facts with arguments that will make the decision legally persuasive, if not legally secure. But beyond a prescription for rhetorical effectiveness, the theory of argumentation shows that above all legal decisionmaking is a responsible intellectual activity.
Legal Decisionmaking as a Responsible Intellectual Activity: A Continental Point of View,
72 Wash. L. Rev.
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