Legal Argumentation Between ‘Monologue’ and ‘Dialogue’: From the Absolute Ruler to the Rule of Law

The rising and establishing of the absolute monarchies in the history of Europe could be also seen as an outcome of the success of the epistemological paradigm based upon formal demonstrations (everyone knows, for instance, that Hobbes mantained geometry to be the model for political science and that Montesquieu thought just the same about maths and legal reasoning). Having presumed that some ‘universal’ (i.e. indisputable) forms of reasoning were available to human cognition, one could imagine that, once applied, they could work in science as well as in giving rules or deciding cases. The consequence of such paradigm for legal argumentation is the reduction of judge’s work to a lonely monologue. The aim of my paper is to show as in legal systems inspired by the rule of law, dialogue should be intended at all levels as the basic principle. In fact, the same way in politics institutional subjects must discuss with each other before deciding, the judge must decide the case after arranging a critical discussion with and between the parties, eventually having to dialogue also with other judges in the past (when looking for precedents) and in the future (when foreseeing the judgement of higher Courts). In other words, legal argumentation and the rule of law are dialogical by their own nature, and both claim for cooperative contexts where reasons should be given to justify one’own claim.