Clash of Values : Functional analysis of equality, freedom, justice and dignity constructs in constitutional legal argumentation
Abstract
The present book deals with the use of values and axioms in constitutional legal argumentation. Its aim is to provide a theoretical and analytical framework for the study of this issue based on the functional rather than content perspective.
Thus, the book focuses not on what the examined individual constitutional values, i.e., equality, freedom, justice, and dignity, mean substantively, but rather on the way in which these constructs are used in constitutional legal argumentation. This approach, in contrast to the content approach, makes it possible to look at the researched issues in a universal way, and thus leads to generalizable conclusions, independent of the specific cultural, historical, political, or ideological context of individual states or regions.
Said theoretical and analytical functional framework works with three criteria (variables), namely content width, argumentative power, and applicability before courts, whereby it can classify any occurrence of any of the four analyzed constructs in constitutional legal argumentation as one of three basic or one of eleven hybrid functions. The basic functions are a) relative individual law, b) objective value, and c) source of human rights.
The occurrence of any of them in constitutional legal argumentation is usually unproblematic. However, problems arise when any of the analyzed constructs is argumentatively used as any of the hybrid functions, which are created by combining the characteristic features of more than one of the basic functions.
As a result, the hybrid functions often play a role of axioms in argumentative logic chains. The use of hybrid functions of the analyzed constructs is described in this book as an undesirable, illegitimate argumentative foul, which is characterized by reduced quality, persuasiveness and predictability of legal arguments and decisions based on them, as well as by violations of some key aspects of the right to a fair trial.
The book also proposes and demonstrates on a qualitative analysis of several court decisions not only how hybrid functions can be identified in legal argumentation, but also how their use can be avoided or at least how their undesirable consequences can be minimized