The Argument from Psychological Typology for a Mild Separation Between the Context of Discovery and the Context of Justification

Abstract

The problem of separation between the context of discovery and the context of justification of legal decisions is one of the basic themes in legal argumentation theory. Whereas the context of discovery focuses on the process of reaching a legal decision, which concludes a decision-making process, the context of justification is concerned with justification of the legal decision through the application of relevant legal arguments. The majority of legal theorists interested in legal argumentation theory support the position that the mentioned two contextes are rigidly separated, in the framework of which the process of discovery is mainly studied by psychologists while the process of justification is the only area that should be relevant for legal argumentation theory. I oppose such a rigid separation between the two contextes and view it as a position that is too idealist. Instead, I support a more realistic position of their moderate separation, whereby I recognise the importance of the discovery context while still insisting on the major relevance of the justification context.