dialectic and rhetoric in legal argumentation giovanni damele

DIALECTIC AND RHETORICIn Legal Argumentation

Giovanni Damele

Dialectic and Rhetoric in Legal Argumentation THE ROLE OF ARGUMENTATION IN LAW

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

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?



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



THE LOGICAL APPROACH

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.



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.

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



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.

Starting point: ex. undetermined legal concepts like "common good", "good faith", "administrative probity", "credit", "indecent exposure" and so on.

Argumentative techniques



THE RHETORICAL APPROACH / Viehweg

Theodor Viehweg: Topik und Jurisprudenz

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.



THE RHETORICAL APPROACH / Toulmin

Stephen Toulmin: The uses of argumentAn argument is justified not by his formal logical

validity. Basically it’s “field-dependent”.

An argument consists of a claim defended by means of data, a warrant and a backing.

The acceptability of the content of the argument, however, depends on its subject matter and on the audience to which is addressed



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.



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



THE PRAGMA-DIALECTICAL APPROACH

A legal process is analyzed in terms of an ideal model for resolution of disputes




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.




Strategic maneuveringParties 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


Dialectic and Rhetoric in Legal ArgumentationStrategic maneuvering




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



LEGAL ARGUMENTATION AND LEGAL ARGUMENTS

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.

According to Tarello, there are various argumentative

forms, which are commonly used for interpreting legal rules. We can distinguish the following argumentative forms:


Dialectic and Rhetoric in Legal Argumentation1. argumentum a contrario2. argumentum a simili (the analogical argument)3. argumentum a fortiori4. argumentum a completitudine5. argumentum a coherentia6. the psychological argument7. the historical argument8. the apagogical argument (reductio ad absurdum)9. the teleological argument10. the economical argument11. the argumentum ab exemplo12. the systematic argument13. the naturalistic argument



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).


Dialectic and Rhetoric in Legal Argumentation (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.

(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.


Dialectic and Rhetoric in Legal Argumentation (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.

(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).



(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.

(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.


Dialectic and Rhetoric in Legal Argumentation (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.

(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.


Dialectic and Rhetoric in Legal Argumentation (10) The economical argument, also called the

hypothesis of non-redundancy 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.

(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.

(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.



(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.


Dialectic and Rhetoric in Legal ArgumentationDistinction no. 1:

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.



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.



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.


Dialectic and Rhetoric in Legal ArgumentationThe 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]Tarello [1974] - Feteris [1997]

Dialectic and Rhetoric in Legal Argumentation 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]

dialectic and rhetoric in legal argumentation giovanni damele

Documents

legal arguments

legal audience

legal justification

legal decision

legal standpoint

legal systems

legal obligation

role of argumentation