Dialectical method: An Approach to Solving Complex Legal Cases

This work deals with the field of legal dialectics, which is less explored in Slovenian legal theory. The author develops a model of solving complex legal cases, which has its basis in scholastic and Hegelian dialectics. It is shown that in complex cases, legal reasoning is not syllogistic but enthymemic. On the basis of relevant psychological research, an argument is made for a structured approach to legal argumentation.

The proposed model is named ‘the dialectical method’. The importance of inner dialogue is discussed. Such a dialogue takes place as a confrontation of explanatory arguments. The interpreter first sets a primary thesis, which is then attacked with relevant antitheses. The procedure is repeated in accordance with legal knowledge and the value system of the interpreter, until a synthesis, which should contain a qualitative leap in the understanding of the case, is reached. In Hegelian terms, such a qualitative leap is achieved, when everything that needs to be retained is retained, and everything that needs to be abandoned is abandoned.

The work also shows how it is possible to use scientific knowledge regarding the dialectical method in legal practice. Pragmatic aspects are emphasized in order to achieve a more effective convincing of particular audiences.