Typology of Arguments in Constitutional Justice

The article examines various typologies of legal arguments, focusing on those developed by prominent scholars such as Philip Bobbitt, Richard Fallon Jr., Duncan Kennedy, Robert Alexy, Neil McCormick, Wilson R. Huhn, and András Jakab. It analyzes the foundations of these typologies, assessing their applicability in explaining the argumentative patterns found in constitutional discourse. The author compares and contrasts the approaches taken by these scholars, examining their strengths and weaknesses, as well as exploring the relationships between different types of arguments. Despite the fact that they can be formally ordered by abstract significance for the legal system, the article acknowledges that it is difficult to establish a strict hierarchy among them in advance, as the strength of each argument type will depend on the specific social and legal context. After summarizing the existing typologies of arguments used in legal discourse, the author proposes his own typology of constitutional arguments that meets the requirements of methodological reductionism and takes into account the features of constitutional review. The article emphasizes the modal nature of constitutional arguments and argues that the legitimacy of each type of argument depends on the fundamental values defended and promoted by that type. It also helps to better understand the relationship between argumentation and interpretation, as it distinguishes between interpretative and non-interpretative arguments depending on the efforts made to understand the meaning of legal norms. All the studied typologies are aimed at identifying the meanings embedded in normative texts. Based on the analysis of the different types of arguments and the characteristics of constitutional review, the author identifies four main categories of constitutional arguments: textual arguments, intentional arguments, arguments based on consistency, and pragmatic arguments.

Keywords: typology of arguments; constitutional argumentation; constitutional justice; constitutional discourse; constitutionality; judicial review