Marko Novak
Summary
The article deals with the problem of separation between the context of discovery and the context of justification of legal decisions, which is a basic theme in legal argumentation theory. First, the context of discovery focuses on the process of reaching a decision, which comprises the following major steps: (a) identifying the facts of the case; (b) discovering the relevant legal norms; and (c) deciding whether the established facts of the case can be subsumed under legal norms, with this leading to a legal decision at the conclusion of the decision-making process. Second, the context of justification is, however, only concerned with justification of the legal decision through the application of relevant legal arguments. Therefore, the majority of legal theorists interested in legal argumentation theory support the position that the mentioned two contexts 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 contexts 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.
Key words
legal argumentation, discovery context, justification context, separation between the discovery and justification contexts, psychological typology argument