A Reflection on Legal Problems. Ideas from Legal Argumentation

Abstract

The way in which a legal problem is understood is related to the conception of law that is accepted and how the law is taught. This teaching, if part of methodologies that privilege the study of regulations or judicial decisions (which teach what the law is), will promote as a prototype of legal problems those that the judge decides to solve; that of the context of justification. If a space for critical rationality is recognized within strategic argumentation, it is possible to build a different prototype of legal problems, linked to the context of discovery. This allows identifying new pragmatic fallacies. This approach demands methodologies that teach how to think like lawyers.