БАЗОВІ ПОНЯТТЯ ТЕОРІЇ ПРАВОВОЇ АРГУМЕНТАЦІЇ: ЗМІСТ ТА СПІВВІДНОШЕННЯ (INITIAL CONCEPTS OF LEGAL ARGUMENTATION THEORY: CONTENT AND CORRELATION) (original) (raw)

The article is devoted to the initial concepts in the theory of legal argumentation. The author underlines that there are differences in understanding of some of these concepts in the general legal context and the special-law-applicative context. It was stated that legal reasoning is a general concept to particular concepts of legal argumentation, motivation and explanation. A special type of legal reasoning is justification, which has a connotation of retrospectivity-a person justifies an already made decision. It may include counterarguing. Legal arguing is considered as an activity, which result is legal argumentation. It was established that the terms "legal motivation" and "legal argumentation" are not the synonyms in view of the incentive connotation of the word "motive", and, respectively, of its derivatives. The term "legal explanation" differs from "legal argumentation": the first only deepens understanding and does not require counterargument. Proving is a special type of legal arguing. Both questions of law and questions of fact are subjects of arguing, whereas only questions of fact or assertions of facts are subjects of proving. The author argues that in the law-applicative context the term "reasoning of the judicial decision" in Ukraine means mainly its justification with evidence. Motivation of the judicial decision, in fact, means its argumentation. However meaning of legislative concept "reasoning of the judicial decision" has been recently modified in two procedural codes of Ukraine from decision's pure justification by evidence to both its justification by evidence and motivation. It is proposed to replace the term "motivation of the judicial decision" with "argumentation of the judicial decision" in the current procedural rules due to the incentive connotation of the term "motivation".