DIALECTIC AND RHETORIC
In Legal Argumentation
Giovanni Damele
Dialectic and Rhetoric in Legal
Argumentation
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THE ROLE OF ARGUMENTATION IN LAW
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A lawyer must justify his case with arguments
A judge must support a decision with arguments (in many legal
systems the judge has a legal obligation to justify his decision)
The legislator must support his proposals with arguments
A jurist must justify his opinions with arguments
Everybody who advances a legal standpoint and wishes
this standpoint to be accepted by others, will have to
presents arguments.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
LEGAL ARGUMENTATION
&
ARGUMENTATION THEORY
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How can a general model of argumentation be used for
analyzing and evaluating legal arguments?
How can legal arguments be reconstructed in terms of a
general model of argumentation?
How can general standards of rationality be applied to legal
arguments?
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
Logical
approach
Rhetorical
approach
The logical approach emphasizes the formal aspects of legal argumentation
The rhetorical approach emphasizes the content of arguments and the
context-dependent aspects of acceptability
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE LOGICAL APPROACH
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Georges Kalinowski: the necessary condition of the
acceptability of a legal justification is that the argument
underlying the justification can be reconstructed as a logical
valid arguments.
The Kelsen / Klug controversy: according Ulrich Klug, a legal
argument can be reconstructed adequately in terms of a
predicate logic.
Prakken develops a logical system for a dialogical analysis of
legal argument.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE RHETORICAL APPROACH / Perelman
Chaïm Perelman’s “New Rhetoric”
The acceptability of an argumentation is dependent on the
effectiveness of the argumentation for the audience to which is
addressed.
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Particular - Concrete Audience: ex. a magistrate or a jury in a
criminal trial
Universal - Ideal Audience: the community of all rational beings
as a standard of rationality
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE RHETORICAL APPROACH / Perelman
Chaïm Perelman: Logique juridique. Nouvelle rhétorique
Perelman describes the starting points and argumentative
techniques used to convince an audience of the acceptability of
a legal decision.
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Starting point: ex. undetermined legal concepts like "common
good", "good faith", "administrative probity", "credit", "indecent
exposure" and so on.
Argumentative techniques
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE RHETORICAL APPROACH / Viehweg
Theodor Viehweg: Topik und Jurisprudenz
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Internal justification: an argument is justified if its conclusion
follows logically from its premises.
External justification: arguments must be based on general legal
viewpoint (topoi) which can convince a legal audience. Such an
argument can be used for justifying a legal decision.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE RHETORICAL APPROACH / Toulmin
Stephen Toulmin: The uses of argument
An argument is justified not by his formal logical validity. Basically
it’s “field-dependent”.
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An argument consists of a claim defended by means of data, a
warrant and a backing.
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The acceptability of the content of the argument, however,
depends on its subject matter and on the audience to which is
addressed
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE DIALOGICAL APPROACH
Legal argumentation is considered from the perspective of a
discussion procedure in which a legal position is defended
according to certain rules for rational discussion.
Starting from the Habermas’ theory, Aarnio, Alexy and Peczenick
consider legal argumentation as a form of rational
communication for reaching rational consensus by means of
discussion.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE DIALOGICAL APPROACH
In the reconstruction of the justification of legal decisions, the
dialogical approach distinguish three aspects:
- The formal aspect: at the level of internal justification, the
argument should be reconstructed as a logically valid argument
- The material aspect: in external justification the central question
is if the norm and the facts used in the internal justification could
be considered acceptable
- The procedural aspect: the participants must observe principles
like: consistency, efficiency, testability, coherence, generalizability,
sincerity
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE PRAGMA-DIALECTICAL APPROACH
A legal process is analyzed in terms of an ideal model for resolution of disputes
Reconstruction
of arguments
Evaluation of
arguments
Tarello [1974] - Feteris [1997]
Detection of
fallacies
Dialectic and Rhetoric in Legal
Argumentation
Dialectic
Pragmatic
Rhetoric
Pragmadialectic
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE PRAGMA-DIALECTICAL APPROACH
The ideal model of a critical discussion treats argumentative discourse
as a discussion in which argumentation is directed at the reasonable
resolution of a difference of opinion.
The ideal model stipulates ten rules that apply to an argumentative
discussion. Violations of the discussion rules are said to frustrate the
reasonable resolution of the difference of opinion and they are
therefore considered as fallacies.
In this context, fundamental is role of the analysis of fallacies in legal
argumentation. Exempla of fallacies are, in the pragma-dialectical
approach, arguments like the argumentum ad hominem, the
argumentum ad absurdum, the argumentum ad consequentiam and the
argumentum a fortiori.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE PRAGMA-DIALECTICAL APPROACH
Strategic maneuvering
Parties involved in a difference of opinion “maneuver
strategically” to simultaneously realize their dialectical
and their rhetorical aims. In other words, the parties in an
argumentative discussion attempt to be persuasive (have
their standpoint accepted) while observing the critical
standards for argumentative discourse. In each of the
critical discussion stages there is a rhetorical goal that
corresponds with the dialectical goal
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
Strategic maneuvering
Rhetoric
Pragmadialectical rules
topics
audience
adaptation
presentational
devices
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
THE PRAGMA-DIALECTICAL APPROACH
From a practical point of view, Van Eemeren et al. apply a
dialogical approach based on the pragma-dialectical
theory of argument, showing:
- A method for the layout of arguments
- An evaluation of arguments by means of a reconstruction
of argumentation schemes and the detection of fallacies
- The development of a method for presenting legal
arguments
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
LEGAL ARGUMENTATION
AND LEGAL ARGUMENTS
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According to Perelman, there are specific legal argumentation
schemes to transfer the approbation with the starting point to
the standpoint. In order to justify a legal decision, it is important
that the judge explain why a legal rule has been interpreted in a
certain way.
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According to Tarello, there are various argumentative forms,
which are commonly used for interpreting legal rules. We can
distinguish the following argumentative forms:
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
argumentum a contrario
argumentum a simili (the analogical argument)
argumentum a fortiori
argumentum a completitudine
argumentum a coherentia
the psychological argument
the historical argument
the apagogical argument (reductio ad absurdum)
the teleological argument
the economical argument
the argumentum ab exemplo
the systematic argument
the naturalistic argument
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
The first three types of argument are well known among lawyers. They
are often used to defend an interpretation, which is based on the will
of the legislator.
(1) The
argumentum a contrario implies that if a particular rule is
intended for a specific category of persons or objects, this rule
does not apply to persons or objects which do not belong to this
category, because an explicit formulation pointing in this direction
is absent (if all men aged 20 must join the army, it can been
argued a contrario that girls do not have this obligation).
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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(2) The argumentum a simili implies that if a particular rule applies
to a specific category of persons or objects, this rule also applies
to persons or objects which are similar in relevant respects. If
there is a rule forbidding travellers to enter the railway platform
with dogs, it can be argued that it is also forbidden to bring, for
example, a coyote.
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(3) According to the argumentum a fortiori if there is reason to act
in a certain way in case x, which is consider minor as compared
to case y, then there is even stronger reason to act in that way in
case y. If someone who has hit someone else has to be punished,
a fortiori someone who has caused the death of someone else has
to be punished.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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(4) The argumentum a completudine is based on the idea that legal
systems are complete, basically because they contain general
rules for cases for which there are no specific rules. We can
always find a legal rule which attaches a particular normative
qualification (neutral, obliged, prohibited or allowed) to all acts
which are not described explicitly.
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(5) The argumentum a coherentia implies that conflicts between
legal rules can be solved by giving one rule preference over
another. For instance the rule that a new rule is to be preferred
to an old rule (lex posteriori derogat priori), ore the rule that a
superior rule is to be preferred to a inferior rule (lex superior
derogat inferiori).
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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(6) The psychological argument refers to preparatory material
expressing the will of the legislator. In this way, an attempt is
made to reconstruct the will of the legislator and to determine
which principle underlies the rule.
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(7) The historical argument is based on the assumption of
continuity. The starting point is that the legislator is conservative
and will adhere to his method of regulating a particular form of
behaviour, unless he changes the texts of the law explicitly.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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(8) The apagogical argument, also called reductio ad absurdum (or
argument of the reasonable legislator), assumes that the legislator
is rational, or, at least, reasonable, and would not have accepted
an interpretation of the law if such an interpretation would have
illogical, unreasonable or unfair consequences.
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(9) The teleological argument refers to the ratio and the goal of the
law. This argument differs from the psychological argument
because it does not take the literal meaning of the preparatory
material as a starting point, but the considerations underlying the
rule. This mode is necessary if it concerns cases that the
legislator could not have foreseen.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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(10) The economical argument, also called the hypothesis of nonredundancy of the legislator, does not take into account an
interpretation if it is a repetition of another rule. The assumption
is that there cannot be two identical rules.
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(11) The argumentum ab exemplo (or authoritative argument or
hypothesis of legal praxis correctness) allows the judge to interpret
the law in accordance with precedents, previous decisions or
legal doctrine.
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(12) The systematical argument starts from the hypothesis that the
law is a coherent system. The various legal norms constitute a
system in which the elements must be interpreted in their
context.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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(13) The naturalistic argument, or argument of the nature of things,
or hypothesis of the powerless legislator. This argument needs
other arguments in order to precise the meaning of “nature”. This
specification is often done in terms of social sciences like, for
example, economics.
All these arguments often appear to jurists like a form of “specific legal
argumentation”. In fact, they are merely rhetoric arguments, used in all
kinds of fields and in all kinds of discourse as means of persuasion.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
Distinction no. 1:
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Arguments 1-5 (a contrario, a simili, a fortiori, a completitudine, a
coherentia)
Arguments 6-13
Arguments a contrario, a simili, a fortiori, a completitudine, a coherentia
conclude with the existence or non-existence of norms, the
remaining arguments conclude with the attribution of a meaning
to normative texts. The first ones produce juridical propositions,
the second ones interpret them.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
Distinction no. 2:
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Arguments 1, 4 e 10 (a contrario, psychological, economic)
All other arguments, except the naturalistic one (bivalent)
Functional distinction: arguments a contrario, psychological and
economic could further the use of new normative utterances,
even in conflict with other pre-existing norms. On the contrary,
all other arguments will work to attribute to new normative
utterances meanings that are compatible with the context.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
Distinction no. 3:
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Naturalistic argument
All other arguments
It is the only argument that actually claims against the legal norm,
involving the conception of the pointlessness of the legal norm. In
fact, the naturalistic argument borrows key concepts from other
disciplines, in order to support a conclusion in law.
Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
The possible goals of a rhetoric approach:
to gather legal arguments used in natural contexts by legal
operators (judges, lawyers, jurists…)
 to observe the comparative frequency of arguments
 to evaluate the strength of an argument, what is its purpose,
what is its political-juridical character, what is the legal
ideology proclaimed by judges (for example: “law has nothing
to do with historical legislator: is a duty of the members of
judicial class to reconstruct an ideal legislator, in order to
preserve continuity of Law”)
Tarello [1974]
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Tarello [1974] - Feteris [1997]
Dialectic and Rhetoric in Legal
Argumentation
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Aarnio, A., The Rational as Reasonable [1987]
Alexy, R., A Theory of Legal Argumentation [1989]
Eemeren, F. H. van and R. Grootendorst, Argumentation, Communication,
and Fallacies. A Pragma-dialectical Perspective [1992]
Feteris, E., A Survey of 25 Years of Research on Legal Argumenation [1997]
Feteris, E., Fundamentals of Legal Argumentation [1999]
Kalinowski, G., La logique des normes [1972]
Klug, U., Juristische Logik [1982]
Peczenick, A., On Law and Reason [1989]
Perelman, C., Logique juridique. Nouvelle rhetorique [1976]
Prakken, Logical Tools for Modelling Legal Argument [1993]
Tarello, G., Diritto, enunciati, usi [1974]
Toulmin, S, The Uses of Argument [1958]
Viehweg, T., Topik und Jurisprudenz [1954]