Theories of legal argumentation usually work within different fields where legal arguments are at stake, of which two unquestionable examples can be mentioned: the legislative process and the enforcement of rules for the resolution of specific cases.

Legal theorists, particularly after the second half of the twentieth century, have been largely concerned with the discourses of adjudication, in a clear move to “strengthen” the role of the judiciary in resolving conflicts and “reasonable disagreements” existing in contemporary societies. The recurrent use of the expression “everything pours into the judiciary”, or at least “almost everything”, is no casualty either in Civil Law or in Common Law legal traditions.¹

In this context, one can notice an increasing need not only to explain how decisions are formed, but also to justify them.

Theories of legal argumentation seek to unveil all the relevant aspects concerning the rational use of arguments to justify judicial decisions. Semiotics, legal logic, legal axiology, philosophy of language, rhetoric and theories of interpretation are some of the tools developed for this analysis (Bustamante and Maia 2008, p. 361).

But if modern theories of legal argumentation are largely characterized both by an explanation of the “use of arguments” and a normative account to determine the “value of these arguments” in the discourses that seek to justify a judicial decision and to make that decision rationally acceptable, how can we conceive this assertion in a tradition in which judicial decisions have long been justified according to the dichotomy “interpretivism versus non-interpretivism”?

This chapter aims at studying the theories of adjudication in U.S. law, beginning with a criticism against the old “justifying dichotomy” between interpretivism and non-interpretivism, which have been largely present in U.S. legal thinking.² In a second moment, I will analyze the alternatives to this gap envisioned by Cass Sunstein’s judicial minimalism, Richard Posner’s anti-theoretical pragmatism, and Ronald Dworkin’s conception of “Law as Integrity”. Finally, I will take a stand on this debate and provide an answer as to which of these theories is equipped with the best resources for the reaching adequate legal judgments.

Until recently, American judges used to justify their decisions and have their arguments studied according to either “interpretive” or “non-interpretive premises”. A magistrate or even a counsellor was classified on the basis of this duality. Let us analyse how those interpretive perspectives account for legal argumentation.

Interpretivists, on the one hand, advocate a conservative position – advanced by great exponents like Judge Robert Bork and Justice Antonin Scalia – according to which the interpreter, especially in constitutional adjudication, shall be limited to grasping the meaning of the explicit precepts or at least the meaning perceived as clearly implicit in the text, i.e. within its semantic texture. While interpreting the Constitution, one should have his eyes on the constitutional text that lies ahead, having as his farthest limit an opening to search for the original intention of the founders. They claim that taking a step beyond the frame of the text would subvert the principle of the Rule of Law, distorting it in the form of a judge-made law. This prudential attitude would prove essential in the judicial review of legislative acts, which should be limited by the constitutional framework, under the assumption that a decision which employs other methods would be in violation of the democratic principle, inasmuch as the laws under the surveillance of judicial review are enacted with the support of a majority of the members of a political community.

The non-interpretivist account, on the other hand, is more sympathetic to judicial adjudication of the rights enshrined in the Constitution, and is not satisfied with a formalistic or originalist interpretation, despite the great constellation of internal divergences within the advocates of this approach to interpretation. Principles such as justice, freedom and equality should speak louder composing the constitutional project of a self-respecting democratic society, rather than a blunt and strict subservience to the semantic reading the constitutional text. Thus, while interpretivists say that the constitutionally adequate solution to dilemmas and conflicts arising in the legal arena should be found in the lawmakers’ opinion, non-interpretivists seek for answers in values (and traditions) arising from society itself.

Here, the criticisms of John Hart Ely, during the 1980s, are particularly appealing because they constitute a strong benchmark against something that was naturalized in U.S. legal doctrine until then.

As to interpretivism, which adopts a restricted notion adjudication, Ely acknowledges that strict adherence to the text of the Constitution itself requires a respect for the will of the majority expressed and interpreted in accordance with the law. Nonetheless, in spite of the fact that the majoritarian premise is at the centre of the American democracy, it is not, and should not be made, absolute. In this sense, he argued that minorities need to be protected against abuses that might occur in a representative democracy. Moreover, attachment to the wording of the Constitution is also problematic in the sense that the text is neither a closed framework nor a perfect product that can cover all of the possible situations of application (Ely 1980, pp. 07–52).

Non-interpretivism, on the other hand, has to face the problem of determining what modes of integration and complementation of the Constitution should be made available for judges. In other words, they must answer which sources of arguments may be deployed to supplement the constitution. Would it be from the natural law tradition, reason, consensus, principles or moral digressions? If any of these suggestions is accepted, the parliament borne democratic element (which stems from the principle of democratic representation) could be shaken, since legal judgments would depend on the subjectivity or even arbitrariness of judges that rely on criteria which are provided with certainty and security (Ely 1980, pp. 07–52).

From there comes the need for new theoretical conceptions that aim to overcome the old dichotomy between interpretivism and non-intepretivism. Ely himself was one of the first authors to develop a theory to overcome this gap (Ely 1980).

As Dworkin has argued, the scheme of classification underlying this dichotomy is a poor one, since “any recognizable theory of judicial review is interpretive in the sense that it aims to provide an interpretation of the Constitution as an original, foundational legal document, and also aims to integrate the Constitution into our constitutional and legal practice as a whole” (Dworkin 1985, pp. 34). Any sensible real-world theory of interpretation, therefore, needs to overcome the limits of this dichotomic approach to constitutional argumentation.

In the present chapter, I will work with three of the contemporary theories that go beyond “interpretivism” and “non-interpretivism” in the American landscape.

Cass R. Sunstein is one of the exponents of an interpretive approach known as “judicial minimalism”, the purpose of which is to re-interpret the role that courts should play in a constitutional democracy.

Minimalists are suspicious about constitutional theory and judicial review, even when these are deployed with emancipatory purposes. For this reason, they are reluctant to accept a social protagonism on the part of judges, who should rather focus on the specific solution of the case under their auspices.

Sunstein’s basic idea is that judges, in constitutional adjudication, must leave many questions open, having no hurry to introduce substantive and conclusive answers – or even brilliant academic theses – to their constituency. It is rather explicit the preference for a type of legal practice in which judges must move away from “theoretical” arguments in their decisions.

He believes that the U.S. Congress understands the democratic dimension much better than the Supreme Court, and therefore is more entitled to give final answers on most of the legal issues. In consequence of this, there would be a “greater promotion of democracy” if judicial interference in the political process decreased. Thus, a minimalist decision has the merit of leaving a space for future reflections on the matter, at national, state and local levels.³

In order for that to happen, magistrates must understand that there is not the slightest need – or legitimacy – for them to decide questions which cannot be regarded as essential to the resolution of the case at hand. Therefore, the assessment of complex cases that have not yet reached a level of maturity in the course of decisions in society should be avoided by simply denying the certiorari.⁴

Sunstein argues that a minimalist decision shall normally have two features: superficiality and narrowness or restriction (Sunstein 1999, p. 10). Hence, the Court objectively decides on the case at hand, rather than making an attempt to establish rules for application in other similar or future cases.⁵

Therefore, decisions must be “narrow rather than broad” and “shallow rather than deep”. In these terms, “decisions should be narrow to the extent that the court should simply decide on that case, without anticipating how similar (or analogous) cases would be solved. And should be shallow to the extent that they should not try to justify the decision for reasons involving basic constitutional principles.”⁶

In these terms, the minimalist approach would have the power to: “a) not have courts deciding on issues unnecessary to the resolution of a case; b) have courts refusing to decide cases that are not yet mature and ready for decision; c) have courts avoiding the discussion on constitutional issues; d) have courts respecting their own precedents, e) not have courts issuing advisory opinions, f) have courts following the previous legal precedents but not necessarily following personal opinions expressed in votes that have no binding force; g) have courts exercising passive virtues associated with maintaining silence about the big day-to-day issues” (Sunstein 1999, pp. 04–05).

With this, we have in Sunstein’s theory a relevant space for the constructive use of silence. That would be “a trivial and correct measure for the activity of judicial institutions”, either because it allows the court to “buy time” while the appropriate political forums do not solve the problem, or because judges have “little democratic legitimacy to provide wide public evidence over certain matters”.⁷

But despite taking the minimalist approach, Sunstein also spells out what he means by maximalism. For him maximalism requires judicial decisions that establish “general rules for the future” as well as “ambitious theoretical justifications”. These decisions will be “deep” and “wide”. Under certain contexts and circumstances, they will be necessary (minimalism does not always prevail, because it is not absolute, as no interpretive theory could be, as a matter of fact, in the words of Sunstein). In these terms, there is a minimalism favourable assumption though it can be overcome, in certain specific (contextual) situations, by law enforcement.

So the idea is, if the “limited” and “superficial” nature of the decisions is an assumption rather than a dogma, how could it be possible for one to know when it is desirable to frankly adopt a more “proactive” stance? Certainly, it would not be possible to find an answer that definitively resolves this problem, although for Sunstein, some general considerations can be advanced.

In this vein, according to Sunstein, there are a few cases in which it may be recommended to construct arguments supported by broader and more abstract principles, especially in the following cases: (i) When a wider solution can reduce the cost of the uncertainty of the decision for both the court itself and the litigants; when it is necessary to establish conditions for a prior planning, able to provide legal certainty and predictability to actors in society in general; where the lack of clear decisions may deprive citizens from a solid support to act democratically. Moreover, it is also admissible (ii) when a more activist approach promotes democratic goals, enabling essential prerequisites to the functioning of deliberative democracy. The decision of the U.S. Court in Brown v. Board of Education ⁸ is certainly the most suitable example (Sunstein 1999, pp. 56–57).

On the other hand, the features that make a more modest approach recommended in turn are: (i) when the situation in which the court must decide generates great uncertainty about fundamental aspects of the rules, especially constitutional ones, or in case of rapid social changes and instability; (ii) when any broader solution seems to entail great uncertainty for future cases; (iii) when there is no urgent need to establish safe public planning criteria for the future; (iv) when the preconditions of democratic deliberation are not in play and democratic goals are unlikely to be promoted by a bolder judgment (Sunstein 1999, pp. 56–57).

As mentioned above, Sunstein’s main concern is not with the decision itself, or its internal and external justification, but with the “consequences” of that decision. He moves away from the search for legitimacy, correctness or suitability of the decision rendered. The “arguments of principle” are overridden by “political arguments”. Here, in an extremely instrumental way, what really matters are the impacts of the decision. As a matter of fact, the decision will only be appropriate when in accordance with its strategic effects in concrete situations, in a given time span (the “adequate” cannot be “adequate” in a given instance for a political reason), so even “theoretical arguments” should be eschewed in favour of “practical arguments” and the empirical perspective (empirical research on attitudes and practices of judges and courts) prevails over any theoretical construction (based on interpretative theories).⁹

The works of Richard Posner have been highly discussed in several countries, and their contribution, which will be analyzed here, concerns the so-called “law and economics” as well as the debate on pragmatism and the anti-theoretical movement in legal discourse.

Starting with “law and economics”, its milestone dates back to a book published in the early 70s of the last century, in Chicago (Posner 2003b). This work was divided into seven (7) parts, involving topics such as corporate and financial markets law, the distribution of wealth and tax revenues, the American legal procedure and the profile of the legal economic arguments (Economic Legal Reasoning) (Posner 2003b).

The core of such theory lays on the assumption that law is an instrument for accomplishing social ends, and with that, its ultimate goal would be economic efficiency. For such a task, Posner considers economics as the science of rational choices par excellence