Argumentation from Reasonableness in the Justification of Judicial Decisions

Abstract

In legal decision-making reasonableness plays an important role. In the literature, generally speaking, there is a consensus that reasonableness as a norm for judges in the application of law implies that they take into account a combination of different considerations of a normative and factual nature with the aim of reconciling the requirements of abstract formal justice and justice and fairness in the concrete case. Although reasonableness is considered to be an important reason for making an exception to a legal rule, in the legal literature little attention has been paid to the kind of arguments that can constitute a sound justification of such a decision. The central question I answer in this contribution is what an adequate justification based on argumentation from reasonableness with the function of correcting a legal rule for the concrete case exactly amounts to. My aim is to develop an argumentation model for the rational reconstruction that enables the analyst to make explicit the different considerations underlying a decision that is based on reasonableness so that they can be submitted to rational critique. To do justice to the context-dependency of the concept of reasonableness in the context of legal justification, I will concentrate on the role of reasonableness in a specific domain, civil law in the Netherlands. In civil law in the Netherlands reasonableness plays a central role as a mechanism for the correction of outcomes that would be unacceptable from the perspective of justice in a concrete case. In this contribution I proceed as follows. First, in (2), I discuss the role of arguments from reasonableness in legal justification: I go into the nature of the argument and I will discuss the content and structure of the complex argumentation underlying a justification based on the correction of a legal rule referring to reasonableness. Then, in (3), I develop an argumentation model for the rational reconstruction of legal arguments from reasonableness. I explain the conditions under which arguments from reasonableness can be correctly used in legal justification. In (4) I concentrate on the role of reasonableness in Dutch Civil Law where it is recognized explicitly as a reason for making an exception. To demonstrate how the argumentation model can be used in the rational reconstruction, in (5) I apply it to an example from Dutch civil law in which this form of argumentation is used. On the basis of an exemplary analysis I explain how the model can be used to establish in what respects argumentation from reasonableness used in this case can be considered as an acceptable contribution to a rational legal discussion.