I’ve been working on the presentations and come to the conclusion that argumentation is a multi-faceted and contradictory issue. Partly a terminological problem, of course, but still. You see, what we have is first the division into the
1) Argumentation of the court; and
2) Argumentation of the parties and their representatives.
Fine, that is clear. Now however if we take only number one, the argumentation of the court, we can divide that into
1 A) The arguments given in the judgment to justify the decision (what the Germans like to call Entscheidungsbegründung); and
1 B) The arguments used to actually make the decision (Entscheidungsfindung).
Now again these both branch out. The functions and reliability of 1 A) is connected to the audience of those arguments. Are they directed to
1 A a) the court itself (for use in the current case as well as in subsequent cases);
1 A b) to the parties and the higher court (for the possible appeal procedure); or
1 A c) to the general public.
In the case of 1 A c) we can branch into discussion about precedents and the authority of the court:
1 A c I) The argumentation and authority of the higher courts in relation to the general public (argumentation bad for the court’s authority in an authority based society; necessary for justification in democratic society)
1 A c II) the argumentation and authority of the higher courts in relation to the lawgiver (argumentation good for the higher court, because it makes it not simply an applier of law, but also a creator of law - this however brings it to conflict with the authority of the lawgiver a.k.a. king/government etc.)
If then we get back to 1 B, we are faced with the question of how can we even know something about the actual decision making process. We have established that 1 A does not reflect 1 B – and as an authority argument we use dear old Weitzel, who probably knows what he is talking about. He and buddy Albrecht therefore suggest that
1 B a) the court’s internal protocols may offer more truthful accounts of the actual decision making process; or then again
1 B b) maybe not (in my case not, because the internal protocols have been written using precisely the same argumentational technique as the judgments); if not, then
1 B c) information about the actual working methods of the judges is needed.
Fine, so we need to know how the judges worked. And how do we know this then? Well, we can look at
1 B c I) what the law says they should do; or
1 B c II) what the scholars say they should do and what the judges therefore were supposed to learn in the universities.
Now, the problem is that we know that in these pre-positivistic ages what the law said and what the actual practice was, were not necessarily the same. We also know that the university education was fairly crappy and the actual knowledge of this judging business was often only learned in the courts. If the courts are the places were the judges actually learned their methods, we should actually look at
1 B c III) what the courts did and how they made their decisions.
I bet you can already tell where that brings us? Yes, the good old fact that
1 A) The arguments given in the judgment to justify the decision (Entscheidungsbegründung); and
1 B) The arguments used to actually make the decision (Entscheidungsfindung)
are not the same. Therefore we cannot really ask whether 1 B c III differed from 1 B c I or 1 B c II, because we only have 1 A as available material. We are running in circles and cannot really know how the court made its decisions.
Is this what I’m supposed to write in my dissertation? It’s all a big mess and ultimately we can know nothing?
Of course there are ways around it. Either forget the part about 1 B or – in a more research-oriented manner - accept that 1 B c II does reflect actual practice of the courts and then attempt to explain the discrepancies to get to some results. That still starts from the motivations, but the discrepancies may open ways beyond them. The bummer is that in order to do that, I have to think like and possess the knowledge of an 18th century judge. In effect I have to learn the material law and figure out what using natural law in court practice actually meant. And the analogy thingy. All the juristic things that I am really bad at.
Currently listening to: Subway to Sally - Unentdecktes Land