PRAGMATIC ARGUMENTATION IN LAW: A PRAGMA-DIALECTICAL RECONSTRUCTION OF ARGUMENTATION FROM UNACCEPTABLE CONSEQUENCES IN JUDICIAL DECISIONS

Eveline T. Feteris
University of Amsterdam

1.	Introduction

In law, judges often use pragmatic argumentation in which they refer to the consequences of application of a legal rule in a concrete case. In legal theory, in principle, reference to the consequences of a decision is considered as an acceptable way of justifying a legal decision. However, there is one form of argumentation from consequences that is often used by judges but that is controversial. In this form of argumentation a judge invokes a 'reasonable application of law' to justify the decision not to apply a rule in its strict sense because this would have unacceptable consequences.
	An example from Dutch civil law in which such argumentation is used we find in a case about the legalization of a child that has not yet been recognized by the father. In this case the father dies before he has knowledge of the pregnancy. The central question is whether the rule of article 215, second section (book 1) of the Dutch Civil Code is applicable:

	1. If after the recognition of a child the planned marriage of its parents has become impossible because of the death of one of them, legalization can be requested of the King. The request can be submitted by the surviving parent or, if this parent dies, by the child.
	2. The request for legalization can also be submitted if the man who, having knowledge of the pregnancy, had the intention of marrying the mother but dies before the child is born without having recognized the child. 

In its strict sense, on the basis of the second part of this rule, it would not be applicable in this case because the father did not have knowledge of the pregnancy. However, the mother asks the Dutch Supreme Court to recognize the child. The Supreme Court gives the following decision:

Hoge Raad December 3, 1992, NJ 1993, 731:

	'A strict application of this requirement would, in a case like the present case, lead to an unacceptable result, that evidently has not been intended by the legislator: the child is refused the state of a legal child for the sole reason that the father died so soon after the conception that he could not have had knowledge of the pregnancy. The purport of the rule - legalization of a child that has not yet been recognized in cases in which an intended marriage cannot take place because of the death of the father - does not oblige to accept this result. A reasonable application of law therefore implies that the facts that resulted from hearing the mother, that the father wanted to beget a child by the mother and that the mother would have informed the father of her pregnancy as soon as this would have been possible, are sufficient.
	From the above it follows that the conditions of clause 215, 2 are fulfilled and that there is no impediment against granting the request, which implies that according to the Supreme Court the request can be granted.

The Supreme Court is of the opinion that the rule should not be applied in a strict way because a strict application would have the unacceptable result that the child would be denied the status of a legal child, which would be incompatible with the goal of the rule. According to the Supreme Court, a reasonable application of the law implies that the rule should be applied in such a way that it leads to a result that is compatible with the intention of the legislator, that is making legalization of a child possible in cases in which an intended marriage cannot take place because the father dies.

According some legal authors such argumentation from unacceptable consequences based on a reasonable application of law is a less acceptable form of argumentation because judges use the argument from a reasonable application of law as a rhetorical formula to hide considerations they should make explicit. They consider it as a form of argumentation in which the 'real' reasons for the decision are concealed by only referring to reasonableness.
	Other authors are of the opinion that an argument from reasonableness can be an acceptable justification of a legal decision if it is supplemented or supported by other arguments that specify what reasonableness in the concrete case exactly amounts to. Such arguments can, for example, be defended by referring to the intention of a rational legislator by showing that application would result in consequences that would be incompatible with the goal of the rule.
	Because legal argumentation from unacceptable consequences referring to a reasonable application of law is often used but controversial, it is interesting to investigate how the argumentation should be constructed in order to constitute an acceptable justification of a legal decision. In the literature on legal argumentation in legal theory and legal philosophy, authors addressing this form of argumentation do not specify what argumentation from unacceptable consequences (also called 'argument from absurdity' or 'reductio ad absurdum') in the context of a reasonable application of law exactly amounts to and under what conditions it might constitute an acceptable justification of a legal decision.) In this paper I want to get a clear picture of the function and content of this form of argumentation by using the pragma-dialectical theory of argumentation. The aim is to develop an instrument for the reconstruction of this form of argumentation that can be used for the analysis and evaluation.
	First, in (2) I will discuss ideas from legal theory on argumentation from unacceptable consequences and I will establish the form and content of this form of argumentation, as well as the criteria of soundness. In (3) I will integrate the results of this discussion in a pragma-dialectical framework by developing an 'ideal' model that forms the basis for the analysis and evaluation. In (4) I will give an exemplary analysis and evaluation of an example of argumentation from unacceptable consequences by using the pragma-dialectical model.

2.	Argumentation from unacceptable consequences as a specific form of teleological argumentation 
 
In legal theory, argumentation from unacceptable consequences, also called an 'argument from absurdity', is considered as a specific form of teleological argumentation.) With teleological argumentation a judge justifies (or rejects) a particular interpretation of a legal rule because application would (or would not) be in accordance with the goal (the 'telos', the so-called 'ratio legis') of the rule. When a judge uses argumentation from unacceptable consequences, he argues that application of a rule would be undesirable in the concrete case because application would have consequences that are not consistent with the 'objective goal' of the rule. The 'objective' goal of the rule is the reconstructed intention of a rational legislator. A rational legislator is supposed to want that the results of a decision are consistent with the objective goals of the rule. On this view, a reasonable application of law implies that a judge should apply a legal rule in such a way that he evades application that would lead to a result that would be unacceptable because it would be incompatible with the intention of a rational legislator.

Although authors in legal theory pay attention to the function of argumentation from unacceptable consequences in the justification of legal decisions, they do not specify the content of this form of argumentation. The only legal author who gives a description of the structure and content of the argument from unacceptability is the German legal theorist Robert Alexy (1989:283-284).) He gives a logical reconstruction which I have translated into an argument scheme (the elements between brackets are Alexy's formulations in terms of a deontological predicate logic):

(J.17)		premise 1		Interpretation R' of rule R would lead to result Z (R'6Z)
		premise 2		Result Z should be prohibited (O-Z)
		conclusion		Interpretation R' is unacceptable (-R')

Alexy considers this argument from unacceptability as a specific form of objective-teleological argumentation. In his view, underlying this form of argumentation is the general argumentation scheme for means-end argumentation, but he does not specify how J.17 should be reconstructed as means-end argumentation.

If we consider argumentation from unacceptable consequences as a specific form of objective-teleological argumentation, and if we would start from Alexy's scheme, we would get the following complex argumentation consisting of two arguments:

		premise 1		Interpretation R' of rule R would lead to result Y
		premise 2		Result Y is unacceptable
		premise 3		If interpretation R' would lead to result Y, and result Y is unacceptable, then interpretation R' is unacceptable
		conclusion		Interpretation R' of rule R is unacceptable

The unacceptability of result Y can be justified as follows:

		premise 1		Result Y does not lead to the realization of goal D and is therefore incompatible with goal D
		premise 2		Goal D is a rational goal that is objectively prescribed by the valid legal order
		premise 3		If goal D is a rational goal that is objectively prescribed by the valid legal order, and result Y is incompatible with goal D, then result Y is unacceptable
		conclusion		Result Y is unacceptable

In the second argument, the intention of a rational legislator is formulated as premise 2 and 3 in which it is stated that goal D is a rational goal that is objectively prescribed by the valid legal order and that if a result is incompatible with this goal, that it is unacceptable.

In legal theory, the question whether arguments from unacceptable consequences appealing to a reasonable application of law can function as a sound justification of a legal decision is approached from the perspective of the hierarchy of interpretation methods.
	According to MacCormick and Summers in Interpreting Statutes (1991), a research project into the use of interpretative arguments in law in 22 countries in Europe, the US and South America, this hierarchy is based on the idea that, from the perspective of legal certainty, arguments that refer to the explicit formulations and intentions of the legislator, such as linguistic and systematic arguments, have priority. If such arguments do not provide an acceptable solution, judges may use what they call teleological/evaluative arguments that refer to the goals and values as the reconstructed rational intentions of the legislator. From the perspective of this hierarchy, arguments from absurdity belong to this last category.
	This implies first that if a judge uses such arguments, he is obliged to justify why other arguments do not offer an acceptable solution, and second that he must show what the objective intention of the rational legislator exactly amounts to by specifying the goals, principles and values on the basis of which this intention can be reconstructed.

3.	A pragma-dialectical reconstruction of arguments from unacceptable consequences in the context of a reasonable application of law

Starting from these ideas, I will establish what the obligation to justify a judicial opinion in accordance with these requirements exactly amounts to from a pragma-dialectical perspective, and how the complex structure of the argumentation that results from this obligation can be reconstructed by making the relation between the various considerations explicit.
	I will do this by specifying how the argumentation should look like in the ideal situation.

The argumentation that a judge is obliged to put forward in this context from the ideal point of view, can be reconstructed as complex argumentation consisting of three levels of argumentation.
	On the first level of the main argumentation, the judge must defend his decision not to apply the rule in the strict sense by referring to the unacceptable consequences of application in the concrete case. From a pragma-dialectical perspective, this pragmatic argumentation can be reconstructed as follows:)

Standpoint 		1	In this concrete case, rule R should not be applied in the strict sense (-X)
Because 		1.1a	In this concrete case, application of X in the strict sense would lead to Y
			1.1b	Y is unacceptable
			(1.1a-1.1b')
				If Y is unacceptable, and if application of R in the strict sense in this concrete case would lead to Y, then R should not be applied 

On the second level, the argumentation can be reconstructed as argumentation expressing that result Y is unacceptable because it is incompatible with a particular goal, value etcetera:

Substandpoint	1.1b		Y is unacceptable
Because		1.1b.1a	Y is incompatible with goal G 
			1.1b.1b	Goal G is a rational goal objectively prescribed by the valid legal order
			(1.1b.1a-1.1.1b')
					If goal G is a rational goal objectively prescribed by the valid legal order, and if Y is incompatible with this goal G, then Y is unacceptable

On the third level, as a support for 1.1b.1b the following argument must be put forward:

			1.1b.1b.1	Goal G underlies the following rules, principles and values of the valid legal order (...)

This reconstruction shows that in the ideal situation a complete explicit argumentation on the basis of unacceptable consequences should consist of three levels of subordinate argumentation.

The situation becomes even more complex if the judge adopts not only the standpoint (-X') that the rule should not be applied in the strict literal sense, but also the standpoint that the rule should be applied in an extensive sense, that is in an objective-teleological sense X'', and thus adopts also the positive standpoint (+X''). In this situation, on the level of the main argumentation a coordinative argumentation should be reconstructed because the judge balances the negative consequences of the rejected way of application against the positive consequences of the preferred way of application:

Standpoint		1	In this concrete case, rule R should not be applied in the strict literal sense R' but in the broad sense of R''
Because 		1.1a	In this concrete case, application of R in the strict literal sense R' would lead to Y'
			1.1b	Y' is unacceptable

			1.1c	In this concrete case, application of R in the broader sense of R'' would lead to Y''
			1.1d	Y''is acceptable

Both 1.1b and 1.1d (and also 1.1a and 1.1c) should be defended with a chain of subordinate arguments as described in 3a, 1.1b with the negative variant, and 1.1d with the positive variant.
	To make the argumentation complete, the weighing and balancing of the two interpretations on the basis of the compatibility of the consequences with the intention of a rational legislator should be reconstructed as a complementing argument:

	(1.1a-1.1d')		If application in the strict sense of R' would lead to Y' which is unacceptable because it is incompatible with the goal of the rule, and if application in the broader sense R'' would lead to Y'' which is acceptable because it is compatible with the goal of rule R, then, in the concrete case, R should be applied in the broad sense R''

This model for the reconstruction offers an instrument that can serve as an 'ideal model' for the analysis and evaluation. For the analysis it offers a heuristic instrument to reconstruct the necessary explicit and implicit parts of the argumentation.
	For the evaluation the reconstruction serves as a critical instrument to determine the aspects of the argumentation that should be submitted to critique. As I have explained (in 2), on the basis of the norms developed in legal theory, the judge has an obligation to specify that the consequences are unacceptable by explaining why they are incompatible with the goals, principles and values underlying the concrete rule and the (part of the) legal system the rule belongs to. From a pragma-dialectical perspective these norms can be translated into critical questions with respect to the arguments that are crucial for the acceptability of the argument from a legal perspective. These critical questions are:

1.	Is result Y indeed (un)acceptable in light of the objective goal G?
2.	Is goal G indeed an objective goal prescribed by the valid legal order?

In my reconstruction, the subordinative argumentation forms an answer to these questions: the subargumentation on the second level forms the answer to the first critical question with respect to argument 1.1b, and the subsubargumentation on the third level forms the answer to the second critical question with respect to argument 1.1b.1b.
	In my reconstruction, the coordinative argumentation forms an answer to the question why the judge thinks a strict application is less acceptable than a wider application. This argumentation rests on the argument that I have reconstructed as (1.1a-1.1d'). From a legal philosophical perspective, this argument can be questioned and then supported with argumentation in which the judge explains the function of legal rules as an instrument to realize certain legal and social goals.

From the perspective of the 'ideal model' all the questions should be answered satisfactorily for the standpoint to be defended successfully.

4.	An exemplary analysis of argumentation from unacceptable consequences with an appeal to a reasonable application of law

As a demonstration of an analysis of a concrete case I reconstruct the example I started with of the case about the legalization of a child that has not yet been recognized by the father. 

From a pragma-dialectical perspective, the argumentation in this case could b 
e analyzed according to the complex structure of the 'ideal model':

Standpoint:		1		In this concrete case, the rule of 1:215,2 of the Dutch Civil Code should not be applied in the literal restricted sense R' but in the wider sense R'', implying that the rule is also applicable in a situation in which the man dies before he knows about the pregnancy

Because:		1.1a		In this concrete case, strict application in the literal interpretation R' would lead to the unacceptable result Y' that the child would be refused the status of a legal child for the sole reason that the father died so soon after the conception that he could not have had knowledge about the pregnancy
			1.1b		The result Y' that the child would be refused the status of a legal child on the sole ground that the father died so soon after the conception that he could not have had knowledge about the pregnancy is unacceptable
			1.1c		In this concrete case, application in the broader sense R'' would lead tot the acceptable result Y'' that the child also gets the status of a legal child if the father dies before he knows about the pregnancy
			1.1d		The result Y'' that the child also gets the status of a legal child if the father dies before he knows about the pregnancy is acceptable
			1.1a-1.1d'
					If strict application of R (R') would lead to Y' that is unacceptable (because it is incompatible with the goal of the rule) and a broader application of R (R'') would lead to Y'' that is acceptable (because it is compatible with the goal of the rule), then the application of R in the broader sense of R'' is to be preferred above the application of R in the strict sense of R'

On the sublevel the argumentation consists of the justification of 1.1b and 1.1d (where the elements 1.1b.1b and 1.1d.1b and 1.1b.1c and 1.1d.1c are identical):

	1.1b		The result Y' that the child would be refused the status of a legal child on the sole ground that the father died so soon after the conception that he could not have had knowledge about the pregnancy is unacceptable
	1.1b.1a	The result Y' is incompatible with the goal of the rule
	1.1b.1b	The goal of the rule is to make it possible to legalize a child that has not yet been acknowledged in cases in which the planned marriage cannot take place because of the dead of the father
	1.1b.1c	The concrete case is similar to the case in which the father dies before the child is born

	1.1d		The result Y'' that the child also gets the status of a legal child if the father dies before he knows about the pregnancy is acceptable
	1.1d.1a	The result Y'' is compatible with the goal of the rule
	1.1d.1b	The goal of the rule is to make it possible to legalize a child that has not yet been acknowledged in cases in which the planned marriage cannot take place because of the dead of the father
	1.1d.1c	The concrete case is similar to the case in which the father dies before the child is born

The analogy arguments 1.1b.1c and 1.1d.1c, which are given as an extra argument, are supported by the following argumentation:

	1.1b.1c.1/1.1d.1c.1
			On the basis of the goal of the rule the situation in which the father wants to beget a child by the mother and dies before he has knowledge of the pregnancy belongs to the area of application of the rule

The reconstruction shows that the argumentation must be reconstructed as a complex form of argumentation consisting of pragmatic argumentation on the main level and objective-teleological argumentation on the subordinate level. The reconstruction also shows that the complexity of the argumentation on the main level is connected to the amount of standpoints that are in dispute. In the example I analyzed, the Court rejects a strict application and opts for an extensive application. The argumentation on the main level reflects how the two applications are weighed against each other. Underlying this weighing is the concept of the rational legislator who does not want a result that is incompatible with the goal of the rule.
	From the perspective of the evaluation the reconstruction shows that the Supreme Court lives up to its burden of proof with respect to the two main levels. Only on the third level it does not specify on which goals, principles and values recognition by a deceased father is based. However, it is clear that the Court tries to formulate a general principle by implying that cases that are similar to the case in which legalization is impossible because of the death of the father, on the basis of the principle of fairness, fall under the rule.
	By supplying argumentation on the three levels the Supreme Court opens its argumentation to critique. Whether the answers to the critical questions are acceptable, is another point. This will have to be determined on the basis of legal criteria of acceptability. However, the reconstruction makes clear that in this case reference to reasonableness is not a rhetorical formula but a reasoned choice for a solution that leads to acceptable results that are in accordance with the goal of the rule.

5	Conclusion

In this contribution I have analyzed the role of arguments from unacceptable consequences in the context of a reasonable application of law. Integrating ideas from legal theory and pragma-dialectical theory, I have clarified the complex argumentation structure of this form of argumentation.

The pragma-dialectical reconstruction offers an important supplement to the legal-theoretical literature in various respects.
	First, I have shown that the pragma-dialectical approach makes it possible to give a systematic reconstruction of the complex structure of this form of argumentation by taking into account the various aspects of the difference of opinion. In legal theory authors only describe the elements and the structure of the reductio ad absurdum on the main level, but do not go into the justification of the unacceptability of the consequences on the sub-levels. Furthermore they do not always take into account the possibility of a balancing of various alternative interpretations as I have demonstrated in my reconstruction.
	Second, I have established that the argumentation schemes underlying the argumentation on the main level and sub-level are different forms of argumentation. They can be reconstructed as pragmatic/consequentialist argumentation on the main level and objective-teleological argumentation on the sub-level. Most authors in legal theory only say that arguments from absurdity can be considered as a form of teleological argumentation. As I have shown, the argumentation is a complex form of argumentation consisting of different argumentation schemes that are related to each other in a specific way.

The integration of pragma-dialectical and legal insights makes it possible to develop an instrument that enables the analyst to give an adequate analysis and evaluation of the argumentation. The analysis makes clear how the argumentation should be reconstructed in order to make the complex structure of the argumentation clear and to specify the explicit and implicit elements on the various levels. Then, in the evaluation, it can be established which critical questions are relevant in relation to each element of the argumentation. If all questions can be answered satisfactorily, the argumentation can be considered as acceptable.

I have explained that arguments from reasonableness can be an acceptable way of justifying a judicial opinion if certain conditions are fulfilled. I have explained that from a legal perspective 'reasonableness' is not necessarily a subjective criterion that is not open for discussion. By referring to the unacceptability of the rejected outcome and the acceptability of the preferred solution, a judge can explicitly account for the balancing of a legally desirable and a legally undesirable solution. In doing so, he has the obligation to refer to objective goals and principles underlying the legal system, and he has to show that the chosen solution is compatible with these goals because it is consistent with certain values. In this way he opens his argumentation to rational critique and intersubjective testing.

To be able to get a better understanding of the legal backgrounds of this form of argumentation, further research into the legal, argumentation-theoretical and philosophical definitions and uses of the concepts 'rational', 'reasonable', 'consistency' and 'incompatibility' are required. Furthermore, to get a systematic insight into the way in which this form of argumentation is used in legal practice, further reconstructions using an integration of legal theoretical ideas in the pragma-dialectical perspective, should be carried out.

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