The rationality of legal argumentation

According to Dascal (1998), controversy is characterised by a special kind of rationality, one result thereof being the unique contribution of this kind of polemics to the growth of knowledge. This, in turn, implies that complete cooperation may be detrimental for the efficiency of communication. In this article I discuss the kind of rationality that characterises controversy in legal discourse, in order to provide additional support to Dascal’s thesis about the uniqueness of the rationality of this kind of polemic exchange. I present empirical evidence supporting the conclusion that we may characterise the rationality inherent in controversy by its tolerance to inconsistency; I elucidate the tolerance to inconsistency of the rationality of legal polemic by showing that the norms recommended by the Israeli Supreme Court in the domain of conjugal relationships between men and women verge on inconsistency: On the one hand, the legal system defends the right of women over their bodies, including a woman’s right to establish a romantic relationship, regardless of the nature of the relationship she has with other men; on the other hand, the court acknowledges a man’s uncontrolled tendency to impose monogamous behaviour on his female partner.