Article | Peculiarities of Argumentation in Judgments of the European Court of Human Rights (the Overview of Methodological Approaches) |
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Authors | Dudash T. |
Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
Issue | 4 / 2017 |
Pages | 86 - 96 |
Annotation | The article covers main methodological approaches to legal argumentation as well as their performance in argumentation of the European Court of Human Rights. With regard to methodology elaborated by theory of argumentation three approached to legal argumentation research are elucidated, namely logical approach, rhetorical approach and dialectical (or dialogical) approach. These approaches are based on three different concepts of rationality as well as on three different theoretical models of argumentation. The criteria of soundness of argumentation in these approaches are different: validity of argumentation in logical approach, persuasive force of argumentation in rhetorical approach and acceptability of argumentation for the parties in dialectical (dialogical) argumentation. Legal argumentation of the European Court of Human Rights (the ECHR) is a part of law application and law interpretation of the ECHR. The ECHR argumentation activity is influenced with the above mentioned approaches to legal argumentation on different stages of its law application. It is embodied in the argument schemes used by the ECHR which are the following: argument from the established rule, argument from precedent, argument from position to know, argument of verbal classification, argument from analogy and others. |
Keywords | legal argumentation, argumentation scheme, rhetorical approach, logical approach, dialogical approach |
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