Legal Argumentation in the 21st Century

NKFI FK 138346

In our research, we wish to investigate legal arguments from both an analytic and an empirical perspective, with a focus on the following topics: (1) the re-interpretation of fallacies in legal reasoning, (2) the relationship between the specific topics of certain branches of law and legal doctrine, (3) argumentative patterns in judicial reasoning, and (4) the application of new research methods in the field of argument mapping.

Our hypothesis is that new currents of argumentation studies deserve attention from the perspectives of both legal theory and empirical legal studies. We aim at translating certain insights from these currents into the language of legal studies, and also applying these insights in our study of real-life legal argumentation. In doing so, we wish to focus on the sub-fields mentioned above, with the help of the following questions.

A Re-interpretation of Fallacies in Legal Reasoning. There seems to be some tension between the traditional doctrine of logical fallacies and the practice of legal argumentation. While a number of argumentative moves in legal reasoning can be rightly identified as both logically unsound and legally unacceptable, there are certain arguments that are generally accepted in legal doctrine, while they do not meet the standards of formal logic and are usually regarded as fallacious (such as ‘false dilemma’ or ‘denying the antecedent’). We seek to analyse a number of these types of argument, to see whether and under what circumstances they can be legitimate, and what makes them more easily acceptable in legal reasoning than elsewhere. In addition, we are going to examine the connection between specific fallacies and forms of cognitive bias.

Argumentative Transitions between Branches of Law. Different branches of law have developed their own doctrinal systems (in the sense of Rechtsdogmatik), which can be interpreted as sets of acceptable types of argument or argumentative topics. These doctrinal systems are sometimes regarded as incompatible, and arguments relying on the topics of a certain branch are rejected as illegitimate in another branch. Recently, however, these limits seem to have become permeable, given the need to deal with problems that transcend the traditional limits of branches of law. We are going to analyse legal reasoning in cases traditionally within the scope of private law, which are, however, impossible to argue or regulate by using private-law concepts, due to certain international elements (e.g. European regulation of US-based tech companies). A competition-law approach is often adopted by European actors: our research question here is whether and how that appears in the argumentation deployed in court judgments, i.e. whether competition-law elements can be identified in a media-law based argument, or vice versa.

Strategies of Argument in Legal Reasoning. From a domestic perspective, our research will seek to identify argumentative patterns in the reasoning of Hungarian high courts. The corpora of accessible decisions passed by the Regional Courts, the Curia, and the Constitutional Court now allow for synchronic and diachronic comparisons, as well as examining the argumentative style of specific Courts or even individual judges of the Constitutional Court. The material collected here will also serve as the basis for empirically testing the insights yielded by our conceptual analysis.

Methods of Argument Mapping. In connection with the previous sub-fields, we are going to test various argument modelling methods developed in recent scholarship. We shall start with an overview of currently available methods, examining these from the perspective of legal reasoning. Based on that review, we shall select the methods that seem worth testing with legal material, to be used for our research purposes. A further research question here is whether argument modelling methods are capable of contributing to the detection of argumentative mistakes and fallacies.


Principal Investigator: Mikós Könczöl