Title
Certainty and reasonableness in law Certainty and reasonableness in law
Author
Faculty/Department
Faculty of Law
Publication type
article
Publication
Dordrecht ,
Subject
Law
Source (journal)
Argumentation : an international journal of reasoning. - Dordrecht
Volume/pages
18(2004) :4 , p. 465-478
ISSN
0920-427X
Carrier
E
Target language
English (eng)
Abstract
This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialec-tical notion of rationality this alternative account espouses an ambitious approach to rea-soning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their recip-rocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive.