Consensus and Objectivity of Legal Argumentation

The requirement of objectivity of legal argumentation appears to be a commonplace. Participants of any legal dispute claim that their arguments "objectively" support the thesis for which they argue. Objectivity is perceived as a value, strongly tied with the concept of the rule of law (as opposed the rule of men), which is fundamental for contemporary democratic orders. The content of the requirement of objectivity remains, however, unclear. Different meanings of the predicate "objective" must be distinguished. Three basic meanings are: "objective" as "mind-independent" (ontological objectivity), "objective" as "valid for everybody" (epistemic objectivity) and "objective" as "impartial" (moral objectivity). For each of those basic meanings certain sub-meanings may be distinguished. The purpose of the presentation is to examine briefly in which sense legal argumentation may be considered as "objective". For this purpose a general structure of argumentation is designed and various senses of objectivity of premises and rules of argumentation are discussed. The stress is put on epistemic objectivity. Selected normative theories of practical and legal argumentation are examined from the perspective of epistemic objectivity.