London School of Economics
Legal argumentation, Comparative Jurisprudence, and the Anthropology of Religion
In this presentation, I hope to look at some of the thematic and methodological connections between the study of legal argumentation in comparative law, and the study of religious knowledge and practices, notably within the anthropology of religion. What, if anything, might it mean to have ‘faith’, in ‘law’ or in ‘the Rule of Law’? What do we see if we view practices and conventions in legal argumentation as legitimization rituals? And what are some of the parallels in discussions, in these two fields, of themes like formality, authority, objectivity, or transcendence?
Damiano Canale and Giovanni Tuzet
Bocconi University, Milan
Argumentative Particularism: On Judicial Discretion and the Rule of Law
The main question we try to answer in this lecture is whether judicial discretion is consistent with the ideal of the Rule of Law. We start by claiming that the three pillars of the Rule of Law are (1) the principle of legality, (2) the principle of legal predictability and (3) the principle of due process of law. Then we show that, in the case of discretionary choices by courts, legally right decisions cannot be know in advance on the basis of linguistic, institutional or moral facts. The limit of judicial discretion depends on argumentation and is internal, a priori, and particular. This leads us to claim that inconsistency between judicial discretion and the ideal of Rule of Law does not occur if one consider the principle of due process as conceptually prior to the principles of legality and legal predictability.
Legal Argumentation and the Rule of Law
The various relations between the rule of law and legal argumentation are more than obvious. Their deeper analysis, however, will depend on precise concepts of both the rule of law and legal argumentation per se. I will defend a rich concept of the rule of law, incorporating both formal and substantial requirements. This will be supplemented by an analytical and normative theory of legal argumentation following Robert Alexy’s account. This theory addresses the subsumption of rules as well as the balancing of principles. I will then explore a number of intricate challenges to the ideal that the rule of law and a rational account of legal argumentation are mutually enforcing each other, ultimately augmenting the legitimacy and authority of law.