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Legal Discourses

Marcus Galdia

The book approaches law from the legal-linguistic perspective. Its aim is to clarify the processes in which the meaning of law emerges in legal discourses. In order to enable the understanding of law as a discursive practice, professional and non-professional discourses are analyzed. With this aim in mind, the author focuses on the epistemological consequences of the discursiveness of law. Other relevant legal-linguistic operations such as legal interpretation or legal translation are scrutinized in terms of their theoretical prerequisites and their practical consequences. Their analysis also shows the potential and the limits of law as a social and as a linguistic phenomenon that is determined by its discursiveness. Finally, the book demonstrates how the discursiveness as the distinctive feature of law establishes the connection between the science of law and other social sciences.
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Part 5: Legal Argumentation between Discursiveness and Rationality


Part 5:  Legal Argumentation between Discursiveness and Rationality

5.1  Discursiveness and rationality

Discursiveness of law has consequences that have been regularly mentioned here. Legal discourses are rational linguistic and social phenomena. Research into the interrelation between discursiveness and rationality allows to answer the question as to how is meaning constituted in law. The linguistic way of expression relevant to both discursiveness and rationality is argumentative speech. Insofar, legal argumentation is the area that covers the emergence of argumentative speech and its application in legal practices as mechanisms of legal discourses. Rationality standards differ in time and space. They emerge discursively in relation to theoretical problems that are in narrative terms called topics (cf. Viehweg 1954). For the legal theory, this amalgam of problems is not really new. It has been regularly mentioned at the margin of doctrinal studies. Also the issue whether the traditional doctrine increases the rationality of the discourse belongs to this area of inquiry. The pertaining positivist attitude towards law has been characterized by Cownie (2004: 58): “Whatever they call themselves, the majority of academic lawyers occupy the middle ground between the two extremes of pure doctrinal analysis and a highly theoretical approach to the study of law. Arguably, law is a discipline in transition, with a culture where a small group still clings to a purely doctrinal approach, but a very large group (whether they describe themselves as socio-legal or not) are mixing traditional methods of analysis with analysis drawn from a...

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