DRAFT Bartosz Brożek Economic Analysis of Law and Legal Argumentation In this paper I try to compare two important approaches to legal reasoning, argumentation theories and the economic analysis of law. My aim is to identify the role economic arguments can play within legal argumentation. The question becomes interesting – and important – within the framework of the so-called procedural theories of argumentation. The reason for this is that such theories embody certain conception of rationality. This conception, Kantian in its origins, is significantly different than the rational choice theory on which the economic analysis is based. Therefore, the main thread of the paper addresses the problem of incorporating economic analysis into one of the most famous procedural theories of argumentation, developed by R. Alexy. 1. The idea of legal argumentation There exist numerous theories of legal argumentation, well rooted in different philosophical traditions, from ancient arts of rhetoric, dialectics and sophistic through hermeneutics and logic to the philosophy of Kant. 1 It is, therefore, difficult to address the relationship between the economic analysis of law and legal argumentation from a general perspective. A good place to start is, however, the distinction between procedural and topic- rhetorical theories of argumentation. Both approaches differ as to the relationship between general practical discourse and legal discourse. The difference may be summarized as follows: “According to the first view of this relationship, there exists only one – universal – general discourse. It is within the framework of this discourse that universally valid rules are formulated to be applied later in all kinds of argumentation. Thus, there exists only one philosophy of argumentation, and its different applications (…). On the above understanding of philosophy of argumentation, the distinction between general 1 See Stelmach, Brożek 2004, p. 158-172. 1