THE ROLE OF RATIONALITY IN JUDICIAL ARGUMENTATION

I would like to try to answer in this paper a question: Should, and in which sense, judicial argumentation, particularly the external justification of the major premise of legal syllogism, be ‘rationally justified’, i.e. objectively founded? In order to determine if the (external) justification of the major premise of legal syllogism should be rationally justified, it is necessary to answer three questions: that is, (a) What is meant by external justification of the major premise of legal syllogism? (b) How and why can we reconstruct the judicial argumentation as a practical syllogism, that is, a form of practical reasoning and not of theoretical reasoning? and (c) How and why should normative statements be rationally justified? In particular, I shall support a metaethical conception which we can call ‘moderate relativism’. According to such a conception, a normative thesis is ‘objectively founded’ if, and only if, a competent member of a community is convinced that this normative thesis is right when the argumentation advanced in support of it is part of a rational discourse.