Socialinis ir procedūrinis teisingumas teisiniame diskurse

Abstract

The aim of the article is to show that the correct verdict of court depends on the arguments of two sorts: on the halfarguments which are embraced as self-explanatory, id est as fundamental principles of the being of society, moral attitudes, collective goals and so on. Another half-arguments of courts – arguments rational justified at the legal procedure and in such way embodied by courts. The court and the parties of suit accept these arguments as proven. This theoretical position in this article is based on the concept of „consens truth“ of Jurgen Habermas, on the theory of legal argumentation of Robert Alexy and on the insights of philosophical hermeneutic. It is highlighted in the article that in pertaining to conditions of legal argumentation stated by procedure of ideal discourse the correctness of the sentence of court is a regulative idea. The members of legal case are obliged to advocate their own positions and to criticize the positions of opponents only by the rational expressed arguments. In pertaining to the conditions of the real legal discourse the correct sentence may be find when the all rational presented arguments are forceful to all members of legal discourse. Herewith in the article it is discussed about hard cases when the parts of the case haven’t fundamental value consensus. It is predicated in the article that at that time the correct sentence isn’t depend on the rational arguments but depends on the fundamental values of the judges. At that case the rational argumentation loses its authority. The judgment is determined by irrational arguments at that case. It is maintained that the evidence of such fact is the case of D. Pretty against United Kingdom in the Europe Court of Human Rights. It is stated in the article that the court accepted the life value as the aim of Convention without argumentation.