Logic and Rhetoric in Legal Argumentation: SomeMedieval Perspectives

HANNS HOHMANN

San José State University

ABSTRACT: While the formal treatment of arguments in the late medieval modi arguendiowes much to dialectic, this does not remove the substance and function of the argumenta-tive modes discussed from the realm of rhetoric. These works, designed to teach law studentsskills in legal argumentation, remain importantly focused on persuasive features of argu-mentation which have traditionally been strongly associated with a rhetorical approach, par-ticularly in efforts to differentiate from it dialectic as a more strictly scientific and logicalform of reasoning. This also sheds some light on the relative roles logic and rhetoric playin the legal discourse of our own time. In their approach to persuasive legal discourse, themodi arguendi stand between the argumentative rhetorics of Antiquity and the rhetoricizeddialectics of the Renaissance, and by linking the minute technicalities of professionalizedlaw with broad general considerations of justice, utility, nature, and emotion, they mediatebetween the modem trend towards atomized field-specific rhetorics and the classical idea ofa unified civic rhetoric.

KEY WORDS: Rhetoric, dialectic, logic, topics, persuasion, legal argumentation, middleages, roman law, commentators, modi arguendi

I

The increasing professionalization of the law after the revival of legalstudies in Bologna since the beginning of the 12th century (Berman, 1983;Kuttner, 1982) was accompanied by a growing emphasis on the argumen-tative justification of the solutions to legal problems discussed in debatesamong the legists, the scholars studying and reviving the Roman law. Thismore extensive argumentative practice led in turn to a greater didacticinterest in legal argumentation, which in the period of the so-called com-mentators of the Roman law, after the middle of the 13th century, foundexpression in the emergence of a distinct genre of specialized commen-tary sections or separate manuals dealing with modes of legal argumenta-tion, to which I will refer collectively with the term modi arguendi (Horn,1978; Troje, 1977; Caprioli, 1965; 1963). These guides synthesized andsupplemented the discussions of legal interpretation and argumentationwhich had before been limited to brief remarks in the course of glosses andcommentaries on specific provisions of the Roman law. 1

Medieval jurists were no doubt familiar with the lists of law-related topoior loci in rhetorical handbooks such as Cicero’s De inventione and theRhetorica ad Herennium , then still ascribed to Cicero as well, works which

Argumentation

12: 39–55, 1998. 1998 Kluwer Academic Publishers. Printed in the Netherlands.

were commented upon and taught, throughout the Middle Ages (Ward,1972; 1978), as part of the basic instruction in the trivium, consisting ofgrammar, rhetoric, and dialectic, which served, in Bologna as elsewhere,as a propedeutic for higher studies such as the law (Otte, 1971: 17–32;Lang, 1940: 70; Genzmer, 1934: 385–388). But when some of the com-mentators of the Roman law began to compile the modi arguendi, theylooked for models not to these lists of rhetorical forensic topoi, but to thecatalogues of general dialectical topoi which had been transmitted to theMiddle Ages primarily through the works of Boethius, chiefly his De differentiis topicis from ca. 522 (Stump, 1978; 1989: 31–56).2

In Boethius’ understanding of the loci, for which he drew on Cicero’sTopica, they were seats of arguments, or places from which argumentsappropriate to the question at hand could be drawn (Stump, 1978: 30 = PL64, 1174 D).3 Going beyond Cicero, he distinguished between, on the onehand, topical maxims, which he characterized as ‘universal, principal,indemonstrable, and known per se propositions, which in argumentationgive force to arguments’, either by themselves appearing directly in theargumentation, or by providing the implicit foundation for an explicitargument ratifying the conclusion; an example would be the propositionthat ‘things whose definitions are different are themselves also different’,which would found the argument that an envious man is not wise, becausehe disparages the good of others, and this is not consistent with the defi-nition of a wise man (Stump, 1978: 47 = PL 64, 1185 D-1186 A); and onthe other hand the more universal topical differentiae, which refer to thedistinguishing characteristics of groups of topical maxims, usually indi-cating the kinds of logical relationships upon which the topical maxims inthe group focus, which in the example just given would be definitional, or‘from definition’ (Stump, 1978: 48 = PL 64, 1186 A–B).

It has been observed, and may help with the understanding of the func-tioning of topical maxims, that they are actually rather similar to Toulmin’sconception of argumentative warrants which support the transition from thedata to the conclusion of an argument (Bird, 1961; Toulmin, 1958: 94–143);and the topical differentiae, because they are more general, can serve aslabels which help the mind to easily survey groups of topical maxims, fromwhich then in turn more specific arguments can be derived. This systemof topics holds out the promise to greatly ease the process of invention byultimately reducing an infinite number of possible arguments to a relativelysmall and much more manageable number of categories, facilitating largeargumentative jumps between outwardly dissimilar cases. We may surmisethat it was precisely this relative ease of management provided by rathergeneral topoi which was attractive to the commentators.

Now why did the commentators turn to the dialectical rather than therhetorical topoi as a starting point for their work on the modi arguendi?Here we may observe that even Cicero, the rhetorician par excellence, didnot turn to the rhetorical loci which he had expounded in his early work

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De inventione, but to what he understood to be the Aristotelian dialecticaltopoi,4 when he wrote his Topica in 44 B.C. for his friend, the juristTrebatius Testa. It were these topoi, harmonized with the topical systemof Themistius (ca. 320–390), the author of a Greek commentary onAristotle’s Topica, which formed the basis for Boethius’ dialectical loci inDe differentiis topicis (Stump, 1978: 15–26). The rhetorical topoi, whichhe identified in the fourth book of that work with the loci of the personand the act (Stump, 1978: 88 = PL 64, 1212 A), would have been unsuit-able for Cicero’s purposes in his Topica, as well as for the purposes of thecommentators in the modi arguendi, because Trebatius, as a Roman jurist,and likewise his medieval successors, were interested first and foremostin questions of law, rather than questions of fact.5

Having suggested initially why the commentators chose the dialecticalloci as models for their modi arguendi, I will now turn to my central point,and argue that while the formal treatment of arguments in these medievalworks does indeed owe much to dialectic, this does not remove the sub-stance and function of the argumentative modes discussed from the realmof rhetoric. In making this point, I do not rely on the assumption that thereis a fixed dividing line between these related disciplines, an assumptionwhich is historically untenable (McKeon, 1987). Rather I will try to showthat the treatment of legal reasoning in the modi arguendi remains impor-tantly focused on persuasive features of argumentation which have tradi-tionally been strongly associated with a rhetorical approach, particularlyin efforts to differentiate it from dialectic as a more strictly scientific andlogical form of reasoning; so that claims to a more exclusively scientificand logical status for legal reasoning on the basis of its association withdialectic cannot be supported by the analysis of legal argumentation foundin works such as these modi arguendi. I hope that my own argument, whichI will sketch rather than fully develop here, will also be able to suggest thatthis is not merely a matter of definition or disciplinary territory, but canhelp us to understand better what legal argumentation was for the com-mentators, and can also illuminate to some extent what it very much stillis for us today, and what relative roles logic and rhetoric play in the dis-course of the law. The argument will proceed in three stages:

First, I will show that according to the criteria which Boethius himselfuses in De differentiis topicis to distinguish dialectic from rhetoric, thearguments laid out by the commentators in the modi are rhetorical ratherthan dialectical, and that they do not promise the kind of logical necessityfor which some might hope from an association between law and dialectic.

Second, and more fundamentally, I will argue that contrary to Boethius’theoretical assumptions, these rhetorical topoi cannot be fully subsumedunder the dialectical ones in the sense that they could be said to derive theirpersuasive force from them.

Third, I will maintain that the potential inconclusiveness of the argu-ments based on the legal topoi, of which the commentators appear to be

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rather aware, also points to limits of the logical as well as of the technicaljuristic evaluation of arguments. In developing with varying degrees ofexplicitness the art of arguing legal questions in utramque partem, the com-mentators in effect highlight the ultimate need for rhetorical appeals whichwill facilitate a substantive choice between formally acceptable alterna-tives, appeals which occasionally will have to speak not only to jurists,but also to a wider audience, if the law is to maintain a modicum of supportin society at large.

In conclusion, I will very briefly address the place of the modi arguendiin the development of rhetoric, and in the evolution of its relationship withdialectic and field-specific forms of persuasive discourse.

II

In the course of his discussion of the rhetorical topoi in Book IV of Dedifferentiis topicis, Boethius also gives a brief overview of the rhetoricaldiscipline and distinguishes it from dialectic. He focuses on three criteria,which he elaborates under the headings matter (materia), use (usus), andend (finis) (Stump, 1978: 79–80 = PL 64, 1205 C-1206 D).

As to the matter, he points to the Hermagorean distinction between thesisand hypothesis, that is between a question not involved in circumstances,which is the province of dialectic, and a question which does involve cir-cumstances, that is the Hermagorean peristaseis, indicated by the questionswho, what, where, when, why, how, and by what means, whose additionto an issue makes that question a fit subject for rhetoric. Boethius does ofcourse recognize, as Cicero had emphasized in his Topica, that generalquestions are always involved in the discussion of particular cases (Cic.Top. 21.80),6 and so he adds that when rhetoric takes up a general question,it draws it into the particular question, that is, the general issue is resolvedso that the particular case may be resolved (Stump, 1978: 79 = PL 64, 1205C-1206 C). That is precisely the perspective of jurists, and especially ofjurists sharing the practical orientation prevalent among the commenta-tors, who discuss propositions about the law not for the sake of abstractknowledge, but with a view to their ultimate application to concrete legaldisputes. And that was also the way in which the arguments provided bythe modi arguendi would be used in the university disputations (Fransen,1985; Coing, 1973; Kantorowicz, 1939) which were based on legal cases,real or invented, and even more clearly it was the context in which thosearguments would appear in the practice of law, for which the disputationswere a preparation.

Boethius’ second criterion is that of the use, which focuses on the kindof discourse produced by the disciplines. He points out that dialectic isrestricted to question and answer, while rhetoric goes through the subjectproposed in an unbroken discourse, that dialectic uses complete syllogisms,

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where rhetoric is content with the brevity of enthymemes (Stump, 1978:79–80 = PL 64, 1206 C). On both of these counts, jurists use argumentsrhetorically: Pleadings, whether oral or in writing, whether in Antiquity,the Middle Ages, or in modern times, consist of continuous discourse; thatwas also true of the academic legal disputations of the Middle Ages, whichfeatured an exchange of extended arguments, each of which might beseveral hours long.7 And while the basic juristic syllogism of legal norm,facts of the case, and decision tends to be made explicit, the argumentswithin that overall structure are predominantly enthymematic, here in thesense that not all the logical components of the arguments used areexpressly stated.

An Boethius’ third criterion also points to the rhetorical nature of legalargumentation: he identifies the end of dialectic as wresting from the adver-sary what it wants, while rhetoric attempts to persuade a judge other thanthe adversary (Stump, 1978: 80 = PL 64, 1206 D), which is of course pre-cisely the task of the legal advocate; and even the legal scholar does notso much aim at assent from the adversary supporting a contrary position,as rather at a consensus of other scholars rejecting the adversary’s opinion.Again the structure of the medieval legal university disputation furtherconfirms this observation: the students submitted their arguments to thefinal judgment of their teacher rather than trying to extract concessionsfrom each other.

Boethius himself recognizes that in their application to law, the dialec-tical topics become rhetorical, when he points out that ‘Cicero’s Topica,which he published for C. Trebatius, who was skilled at law, does notexamine how one can dispute about these things [i.e. genus and species,similars, contraries] themselves but how arguments of the rhetorical disci-pline may be produced’ (Stump, 1978: 95 = PL 64, 1216 C–D). This ofcourse precisely describes the interests of the commentators in their modiarguendi: they are not, in Boethius’ words intent upon discovering ‘argu-ments from qualities themselves’, which is the province of the dialectician,but arguments ‘from things taking on a quality’, which concern the jurist,who wants to argue not about similarity or contrariety per se, but aboutsimilar or contrary laws or cases, and thus argues in the manner of a rhetori-cian.

Given these fairly clear-out observations, we need to address a funda-mental reason why to this day there is nevertheless so much reluctancetowards recognizing the rhetoricity of legal discourse, and a widespreadpreference for associating law with dialectic or logic (Wetlaufer, 1990; Gast,1992: VII): Dialectic and logic appear to promise a firmer basis for argu-ments, and greater assurance of truth; this desire for a reliable groundingbecomes very clear in Boethius’ characterization of maximal propositions,of loci in propositional form, as ‘known per se so that they need no prooffrom without’ (Stump, 1978: 46 = PL 64, 1185 B).8 This initially points toself-evident truth, and thus appears to assimilate dialectic to Aristotle’s

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theory of scientific demonstration as deduction from self-evident first prin-ciples, as expounded in the Posterior Analytics (Arist. An. post. 71a–72b,75b–76a). But then Boethius, in this respect following Aristotle’s Topica(Arist. Top. 100a), has also made it very clear that the dialectician, incommon with the rhetorician, aims at arguments which are readily believ-able (probabilis), whether they are necessarily true or not (Stump, 1978:41 = PL 64, 1181 D).9 Therefore topical argumentation, whether in dialecticor in rhetoric may or may not produce necessary conclusions, and focuseson persuasion rather than demonstration (Stump, 1989: 34–43). Thispresents the dialectician with a dilemma still shared by modern legallogicians: whether to pursue formal perfection and thereby lose practicalapplicability and persuasiveness, or to pursue the latter at the expense ofthe former and thereby move away from formal logic (Sobota, 1990:115–116).

When we look at the dialectical topoi, we recognize a compromise: someof them, as the locus from the genus (‘if the genus is denied, the speciesis denied’), can indeed be regarded as necessary logical laws, but others,such as the locus from authority (‘any expert ought to be believed withinhis science’), the more (‘if what seems the more to inhere does not inhere,neither does that which seems the less to inhere’) or from the generation(‘that which generates a good thing is itself also good’), do not fall intothat category (Green-Pedersen, 1984: 27). If we want to assimilate‘dialectic’ to formal ‘logic’, which is a prerequisite for the rhetorical effec-tiveness of the label as applied to legal discourse in preference to the label‘rhetoric’, then we would have to recognize that some topoi are more dialec-tical than others. And when we consider the modi arguendi, we notice thatnot only do they emphasize as particularly important and persuasive in thelaw just some of those ‘less logical’ loci such as those ab auctoritate (fromauthority), a simili (from similarity), a maiori (from the more), a minori(from the less), or ad absurdum (from absurd consequences), which aremainstays of legal argumentation to this day,10 but they also tend to addmany more topoi which do not readily fit into the scheme of formal dialec-tical loci.

Of the five works to be considered in some detail here (Caprioli, 1963;1965), two actually provide lists of topoi shorter than the catalogues oftwenty-eight in Boethius and Peter of Spain. The anonymous opusculum(Caprioli, 1963: #3) has twenty, the London lecturae (Caprioli, 1963: #4)have only five which are, however, discussed very fully; in the latter casewe can also not be sure whether originally there were more.11 The opus-culum consists mostly of loci which are readily recognizable as related tothe standard dialectical catalogue, and most of which do not representlogical laws;12 but it also adds arguments referring to the letter or etymologyof the word and to the intent behind it, considerations familiar from therhetorical status legales, and to the examples of the gentiles or of the lawsor canons, which identify specific sources of authority rather than abstract

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patterns of reasoning. All of the loci discussed in the lecturae pertain tothe standard list, but none is a logical law.13

The other works range from 42 topoi in Dinus (Caprioli, 1963: #1) to58 in Rainerius (Caprioli, 1963: #2) and 133 in Caccialupus (Caprioli, 1965:#5). Many of the topoi culled from the legal sources do not so much focuson characterizing types of relations between terms, as rather on identi-fying particular terms, given legal sanction by being invoked in authorita-tive sources, which can be expected to impart a persuasive charge to anotherterm once that is linked to them by the argument. Moreover, this persua-sive charge is often not limited to an audience of professional jurists, butcould also appeal to a more general public, highlighting connectionsbetween legal discourse and everyday language and morality. Thus we findreferences to ‘the convicted agent’, ‘good faith’, ‘goodness’, ‘the moredignified’, ‘diligence’, discretion’, justice’, ‘gross carelessness’, ‘naturallaw’, or ‘the useful and the detrimental’; and should those not be suffi-ciently emotional, we may be able to invoke ‘affliction’, ‘charity’, ‘ill-will’,‘anger or excessive grief ’, ‘the obstinacy of a pernicious example’, or‘turpitude’.

On the whole, it can safely be said that material rather than formal con-siderations prevail in the modi arguendi; their dominant features point topractical action rather more than to theoretical contemplation, and theymake for contingency rather than necessity; even if one considers theseworks as the offspring of a union between law and dialectic (disregardingfor the moment that ius is a neuter), one can hardly overlook that thechildren rather more resemble rhetoric.

III

It might be tempting to reassert the decisive parental contribution ofdialectic by trying to show that for all their rhetorical surface features, thearguments in the modi arguendi are genetically clearly imprinted withdialectical patterns. This is precisely the strategy by which Boethiusattempts to accomplish the subordination of the rhetorical to the dialec-tical topoi in Book IV of De differentiis topicis. He argues that ‘the rhetori-cian always proceeds from dialectical Topics, but the dialectician can becontent with his own Topics’. He then illustrates this point with an example:‘suppose there is a question whether someone was drunk. If we want torefute [the charge], we will say that he was not, since he had never beforebeen dissipated. Therefore, since dissipation is, as it were, a genus of drunk-enness, and since there was no dissipation, there certainly was no drunk-enness’. The point of Boethius’ own argument now is that the deductionin the example depends on the dialectical topos from genus: ‘the fact thatthere could be no drunkenness since there was no dissipation is shown fromthe nature of genus, and this the dialectical argument (ratio) provides’. And

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then he cites the applicable topical maxim: ‘For where the genus is absent,there the species must also be absent, since the genus does not leave thespecies’ (Stump, 1978: 94–95 = PL 64, 1216 A–C).

It should be noted at the outset that Boethius has chosen for his argumenta locus which represents a logical law, so he should be on firm ground here.But some doubts are in order. Let us remember that Boethius has set outto explain how we find arguments, defined in the context of dialectic aswell as rhetoric as ‘reason[s] producing belief regarding a matter that is indoubt’ (Stump, 1978: 30 = PL 64, 1174 D). So his claim here must be, notthat the topical maxim from genus completes a demonstrative syllogism,but that it produces belief in the conclusion; but this does not appear borneout by an analysis of his own example. The belief needed in order to movefrom the knowledge that someone was never before dissipated to the con-clusion that therefore he was not drunk on the occasion at issue is not abelief in the logical relationship between genus and species, but an empir-ical generalization about the connection between drunkenness and otherforms of dissipation, to the effect that dissolute habits do not occur singly,combined with a belief that people don’t change and develop dissolutehabits suddenly. This is just the sort of diffuse everyday theory which isamong the stocks-in-trade of the orator, rather than a clear-cut dialecticaltruth, a ‘maximal, universal, principal, indemonstrable, and known per seproposition’ (Stump, 1978: 47 = PL 64, 1185 D). In fact it is a very uncer-tain empirical generalization, and it is easy to see how one would arguethat exceptions to such rules are not only possible but do occur, so that itis rather excessive to claim, as Boethius’ sample argument does, that ‘therecertainly was no drunkenness’; at best, the burden of persuasion has beenshifted to the opponent, who may now try to show that in this case whatperhaps only rarely happens nevertheless did happen.

The analysis of this example illustrates a general problem affecting theattempt to explain the persuasive force of arguments by reference to dialec-tical topical maxims alone, and by extension a problem affecting an exclu-sively formal logical analysis of substantive arguments in general. Eitherone concedes that the maxim is not believed absolutely, in which case onemust look for the ultimate persuasive force in arguments supporting themaxim and showing that no exceptions obtain in the present case; or oneinsists that the maxim is true by definition, in which case the persuasiveforce and the argumentative problems are merely shifted to other premises.This can be illustrated by looking at the locus from authority, which is ofparticular significance in legal argumentation (Horn, 1978). If one concedesthat authorities are not to be trusted absolutely, one needs to produce addi-tional arguments showing that this particular authority should be followed;in other words, one concedes that there are reasons for the trust in authority,and that these may or may not obtain in any given instance, so that onehas to be prepared to defend the authority against the argument that thepresent case is one where an exception to that general trust should be made.

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If, on the other hand one insists that by definition authority is always tobe trusted, then the problem merely shifts to the ascertainment of whetherthe source appealed to is in fact an authority, for which the same kinds ofreasons for trust in authority become relevant. Moreover, it still remainsto be ascertained what exactly the authority does in fact say, so in additionto beliefs about authority, we need to rely on beliefs about how to inter-pret particular authoritative pronouncements in order to support a conclu-sion that a certain course of action is indeed sanctioned by authority.

Not coincidentally, these are precisely the problems which affect everylegal argument: the need to ascertain whether the legal norm invoked is infact valid, either generally or for the case at hand, to determine what thenorm means, and whether the facts on which its application is thus predi-cated are indeed present in the case at hand.14 For our discussion here itis, however, even more important to realize that once it becomes clear thatthe persuasive force of practical arguments always decisively depends onbeliefs about particulars which have to be ascertained from case to case,we have re-entered the realm of circumstances, and thus a traditionaldomain of rhetoric, even if we have not thereby entirely left the purviewof dialectic.

IV

Next, I will briefly show that some authors of modi arguendi did not merelyprovide lists of arguments for rhetorical uses, but also assumed the task ofteaching methods by which both sides of a given legal issue might be sup-ported, thus providing even more clearly for the field of juristic argumen-tation the functional equivalent of the instruction offered for forensicpersuasion in the rhetorical manuals of Antiquity.15

For the commentators as well as for the glossators the topos fromauthority was indeed ‘indemonstrable and known per se’, at least insofaras the authority of the Roman law was concerned; the belief in this authoritywas the unquestioned assumption which defined their professional com-munity and activity. But the medieval jurists were also very much awarethat authorities may conflict; after all, the legal sources themselves con-tained some rules which provided hierarchies of authorities, so that in casesof conflict one could decide which authority to follow and which to dis-regard (Caprioli, 1965: 373).

But what about conflicts within the Roman law itself? Here it was notpossible to reject one norm in favor of another,, since all had equalauthority; moreover, in one of the introductory constitutiones to the Corpusiuris, the emperor Justinian had explicitly declared that there were no realcontradictions in this body of law which could not be resolved by a subtlemind eliciting the reasons for the apparent divergences (Const. Tanta 15).16

The resolution of apparent contradictions between authorities was a central

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concern of scholastic thinking in the law as well as in other fields. Whatsome of the modi arguendi highlight is the fact that the argumentativemethods used for that purpose exhibited a deep ambivalence: while on theone hand they strengthened the abstract authority of the sources by showingtheir consistency and integrity, on the other hand they limited the concretenormativity of these same sources by developing opportunities for choicesbetween different resolutions.

Two of the five works under consideration here, the opuscula by Dinusand by a follower of Johannes Andreae and Jacobus de Arenis, merelyprovide lists of topoi. But the other three offer some additional discussionof techniques of argumentation. Rainerius’ main interest is focused onascertaining the relative strength of arguments; his ultimate goal, however,is not so much logical analysis but rhetorical advice. This becomes clearin his epilogue, where he explains a tripartite division of the juristic argu-ments he has collected in his work; it is not the dialectical division intointrinsic, extrinsic, and intermediate topoi according to the logical rela-tionship between the locus and the terms of the question at issue, but adivision which allows him to lay out a scheme which mirrors the prefer-ential order of oratorical arguments in the rhetorical status rationales.Modelled on the tasks of the defense in a criminal trial, these progress fromthe strongest argument, denying that the act alleged by the prosecution wascommitted (coniectura), to a weaker defense which denies that the act com-mitted falls within the definition of the act prohibited by the law (defin-itio), and finally to the last resort of a justification or excuse (ius et iniuria[or qualitas]) (Cic. Top. 21.82). Rainerius now provides an analogoussequence of strategies for juristic arguments: preferably one should arguefrom what is certain and specified (a certis et specificatis), that is fromthe terms of the law and from its purpose; failing that, one may haverecourse to less certain, merely conjectural arguments (a coniecturis), suchas the arguments from authority and from the usual course of events; andas a last resort, one may rely on arguments from word meaning (de signi-ficat[i]o verbi) (Caprioli, 1963: 182). Rainerius does not elaborate on this,but it is apparent how conflicting arguments can arise in such a schemenot only from contradictory laws, purposes, authorities, probabilities, andmeanings, but also from opposition between arguments drawn from onelevel and those from another.17

The pervasiveness of opportunities for conflicting arguments on bothsides of a given issue is highlighted particularly strongly in the remainingtwo works, the London lecturae and Caccialupus’ opusculum, both of whichexplicitly refer to the situation presented by an academic disputation or acourt case, where opponents will argue opposite legal conclusions. In thelecturae, the argument from the so-called casus legis, that is the assertionthat a problem is solved by a legal provision specifically applicable to thecase at hand, is the starting point, supplemented, when necessary, by theargument that the case is sufficiently similar to one specifically regulated

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to be covered by the same rule (Caprioli, 1963: 235). The disputationproceeds as follows: first one of the opponents puts the question how acertain legal problem ought to be resolved; the reply to which consists ofan argument designed to show that this is not really a doubtful question,but rather specifically decided by the law, either directly or by analogy;that of course would be the position taken by a prosecutor or plaintiff ina legal case. The first line of defense which the lecurae recommend is acomparison between the terms of the law and the terms describing thesituation at hand; do those two sets of terms really match without signifi-cant difference? If not, the respondent can deny that this is really a casuslegis. But even if the two sets of terms are identical or indistinguishable,four further strategies are available to the respondent:

First, he may be able to reply that the applicability of the law is prob-lematic because the underlying facts are in doubt, so that therefore this isnot a question of law but of fact. Second, the case is made doubtful by legalprovisions contrary to the ones which were invoked to establish that thisis a casus legis. Third, it may be replied that it is doubtful whether a casuslegis does indeed preclude any further dispute, even if the experts may thinkso. And, ‘fourth and even truer’,18 it may be said that such a case, howevercertain it may appear, can be drawn into doubt ‘because of a conflict ofreasons’,19 that is a conflict of normative goals, a conflict presumablyarising from specific features of the case at hand, because it is not uselessto entertain doubts about individual cases20 (Caprioli, 1963: 236–237). Inthe approved juristic fashion, this last point is supported by an authorita-tive quotation from the Novellae of Justinian to the effect that nothing inhuman affairs is so beyond doubt that it may not, even though ever sowell founded, still invite some disconcerting doubt (Nov. 44.1.3). The sub-sequent extended discussion of the arguments e contrario, a simili, a fortiorior a maiori, a sufficienti parcium enumeracione, and ad inconveniens siveabsurdum then shows in detail how such doubts can be raised against theapplication of a particular legal provision.

In his opusculum, Caccialupus also makes it clear that the main purposeof his long list of modi argumentandi is to help those who cannot supporttheir case by simple reference to a clearly applicable legal norm (Caprioli,1965: 404). But then he also comes to the assistance of the advocate whosecase based on just such a clearly applicable rule has been attacked, by pro-viding him with three ways in which he can respond to any law adducedagainst his position: First, by showing that a decisive term of the contrarylegal norm is to be understood in a sense not applicable to the situation athand. Second, by establishing that the contrary norm is applicable only ina different field of law. And third, by showing that the contrary norm isapplicable only in certain respects, not including the one relevant in thepresent situation. What all three approaches have in common is the asser-tion that the opponent has failed to make a relevant distinction.21

Caccialupus asserts confidently that by means of invoking critically one

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of these three fallacies, any contradiction can be resolved. So the logic ofthe topoi which have been mobilized against a law is to be countered bythe critical logic of fallacies in defense of that law against the contrarynorms adduced. But just as the dialectical loci depend for their persua-siveness on reasons based on empirical and normative assumptions inaddition to their logical structure, so the logical mistakes claimed by theapplication of impressive fallacy labels such fallentia aequivocationis, fallentia accidentis at consequentis, or fallentia secundum quid et non sim-pliciter (Otte, 1971: 168–171, 179–180, 171–176) are mistakes only if thedistinctions which they supposedly disregard are indeed to be made. Theglossators had already recognized the possibility of abuse inherent in sucharguments, which could be based on arbitrary distinctions (Otte, 1971: 170,176); their real force could only be established by reasons in support ofthe claimed differentiations, reasons which again would have to transcendformal logic, and which could be countered, in a non-compelling but alsonon-fallacious way, by reasons for equal treatment of similar cases. Theinvocation of logical labels in the absence of such reasons could be a con-venient shorthand if the underlying normative assumptions were readilyapparent and unquestionably shared; but if those conditions were not met,they would lend themselves, then as now, to what has been called the ‘alibi-function of logic’ (Soeteman, 1989: 229–241).22

That the commentators were aware of the potential rhetorical value ofsuch devices becomes apparent when Rainerius de Forlivio recommends tomix different modes of arguing, since that is ‘very beautiful, philosophical,syllogistic, and scientific’ (Caprioli, 1963: 113).23 But the quest for scien-tific respectability is not enough in legal argumentation; since both sidesin a legal dispute involving a controversial question can, by using themethods described in the modi arguendi, construct arguments which meetcriteria of logical correctness and professional acceptability, and are ableto offer contrary solutions both of which can be integrated into the bodyof the law, additional reasons will be needed which can sway a judge oneway or the other. And if the decision is to satisfy not only jurists, but alsothe public at large on whose assent the effectiveness of the law may impor-tantly depend, at least some of those additional grounds for a decision musttranscend the artificial reason of the Roman law and partake of what thewider community regards as natural reason. We have already seen above24

that the modi arguendi incorporated a significant number of topoi whichpointed to values and emotions which jurists could expect to share withthe other members of the society in which they lived, and thus implicitlyrecognized the need for rhetorical appeals linking the technical discourseof the law with a more fundamental general discourse.25 Here we encounterrhetoric as it is distinguished from dialectic in the Aristotelian model whichconceives of the former as the domain of persuasive discourse which goesbeyond the audience-invariant dialectic of ‘the wise’ in order to addresscivic issues for the benefit of a wider public audience.26

50 HANNS HOHMANN

V

In his ground-breaking article on rhetoric in the Middle Ages, RichardMcKeon pointed to a third tradition of rhetoric, apart from the Boethianassimilation of rhetoric to dialectic and proof, and from the Augustinianassimilation of rhetoric to theology and edification. This third tradition,criticized by the other two as sophistic or heretical, ‘professed an exclu-sive concern with practical issues and effective applications, [. . .] butgradually in the course of the twelfth and thirteenth centuries [the repre-sentatives of this third tradition] limited their statements to figuresand forms of words’, producing textbooks on the arts of letter-writing,preaching, and poetry; these ‘continue the terms and some points of theorganization of the Ad Herennium and of Cicero’s De inventione, butthe commonplaces which have been put to so many uses are no longerdevices for discovering arguments of things and their traits but devices forremembering, for amplifying, for describing, and for constructing figures’(McKeon, 1987: 156–161).27 I hope to have indicated in this paper that intheir modi arguendi the commentators as legal professionals in effect con-tinued the argumentative strand of a practical rhetoric which in its mani-festation among professional medieval rhetoricians had turned into a lessdialectical art, even as dialecticians themselves increasingly turned awayfrom practical argumentation to logical theory. In their approach to per-suasive legal discourse, the late medieval modi arguendi stand betweenthe argumentative rhetorics of Antiquity and the rhetoricized dialectics ofthe Renaissance.28 And by linking the minute technicalities of profession-alized law with broad considerations of justice, utility, nature, and emotion,they mediate between the modern trend towards atomized field-specificrhetorics and the classical idea of a unified civic rhetoric.

NOTES

1 The modi arguendi occasionally also touched upon the canon law, but their main focuswas clearly on the civil law; for the interpretive methods of the canon lawyers see Salgado(1951) and Salgado (1952); for the methods of the glossators see Otte (1971); Chevrier(1966); Giuliani (1964); and Giuliani (1968). On earlier collections of legal arguments, par-ticularly the so-called brocardica, see v.d. Wouw (1991); Weimar (1973); and Weimar(1967).2 This work, in turn, served as a major source, directly or indirectly, for the treatment ofdialectical loci in the Tractatus of Peter of Spain, also known as his Summulae logicales,which dominated instruction in logic in Europe from the late 13th to the end of the 15thcentury (Stump 1989: 135–156).3 PL = J. P. Migne (ed.), Patrologia Latina (cited by volume number, column, and part ofcolumn); vol. 64, Paris, 1891.4 On the Aristotelian topoi see Grimaldi (1988); Grimaldi (1974); Thionville (1983).5 In the Topica, Cicero tells the anecdote of the jurist Aquilius Gallus, who said, upon beingpresented with a case raising an issue of fact, ‘That doesn’t concern the law, but Cicero’(Cic. Top. 12.51), because by contrast to the jurist, the orator’s task as a defender was much

SOME MEDIEVAL PERSPECTIVES 51

more often the establishment of his client’s innocence, or the effort to make the client andhis doings appear in the best possible light, or, as a prosecutor the achievement of the oppositeeffect in the minds of the jury; and it was to these persuasive tasks, rather than to the suitableinterpretation of legal rules and the subtle discussion of juristic opinions that the topoi ofthe person and the act were adapted. For Boethius’ commentary on Cicero’s Topica see Stump(1988); on the development of the topoi from Cicero to Boethius see Leff (1983).6 Propositum pars est causae.7 these exercises were in this respect more akin to the rhetorical declamations of Antiquitythan to dialectical disputations of the kind described in Book VIII of Aristotle’s Topica.8 Quae ita per se nota sunt, ut aliena probatione non egeant.9 Quorum quidem dialecticus atque orator in communi argumentorum natura versatur.Uterque enim sive necessaria, sive minime, probabilia tamen argumenta sequitur.10 For discussions of topoi in a modern as well as historical legal context see Rehbock(1988); Perelman (1979: 122–129, 155–157); Viehweg (1974); critical Alexy (1978: 39–41).11 The prologue of this work does not announce its precise scope; there is no epilogue toclearly mark the end.12 Such as a contrario, a maiori, a minori, a simili, a sequela absurdi vel inconvenientis,a conparatione, a parte ad totum, a conversione ut a diffinitione, a (multo) fortiori, a generali,a verborum interpretatione, ab antecedente (consequente) destructo, ab effectu.13 It may also be noted that this work focuses on just those arguments which are still almostinvariably discussed in modern books on legal logic, not least because they are also veryfrequently encountered in legal practice: a contrario (sensu), a simili sive a pari, a forciorisive a maiori, a sufficienti parcium enumeratione, ad inconveniens sive absurdum; for recentdiscussion of these see Schneider (1991: 112–125); Bund (1983: 182–196); Schreiber (1962:47–57) rejects them as ‘improper rules of inference in legal discourse’ (unzulässigeSchlußregeln der Rechtssprache).14 These observations explain why it is not decisively helpful to show that topical argu-ments such as a simili, e contrario, or ad absurdum vel inconveniens can in fact be formal-ized as logically valid arguments: in every instance the problem of the validity of theargument merely reappears as a problem of the acceptability of certain other premises, suchas the relevant similarity of cases, the absence of intermediates between the opposites inquestion or of special reasons for the equal treatment of different cases, or the likelihoodand evaluation of the consequences adduced.15 On the jurists’ argumentative versatility as a central reason for their professional successsee Radding (1988: 164) and Otte (1981: 136–139).16 Contrarium autem aliquid in hoc codice positum [. . .] nec invenitur, si quis suptili animodiversitatis rationes excutiet.17 The built-in hierarchy of levels cannot eliminate this latter possibility completely, becauseit will take effect only when an argument on a higher level cannot be challenged.18 Quartus et verius.19 Propter conflictum rationum.20 De singulis dubitare non est inutile.21 It should be noted that while here the focus is on the defense of the application of onelaw against the claims of another, the same techniques can also be used to oppose the appli-cation of a law to a particular situation even in the absence of a specific contrary law. Forthe use of similar techniques in a theological context see Abailard, 1977: 96 and Otte, 1971:182–183.22 See also Schneider (1991: 128) and Hamblin (1970: 30–31).23 Miscere unum cum aliis pulcherrimum philosophicum sylogisticum et scientificum est.24 See section II.25 Again we may look to Rainerius for a sign of explicit rhetorical awareness: at the endof his Summa, he recommends appeals to anger or excessive grief, to nature, and first prin-ciples as particularly suitable for the end of an argument (Caprioli, 1963: 185). The position

52 HANNS HOHMANN

of an argument would be irrelevant as a matter of logic, but it is indeed consonant with theteachings of classical rhetoric to place one’s more powerful and emotional appeals at theend of a discourse or discourse segment: see, e.g., Ad Herennium 2.31.50, 3.10.18.26 On the relationship between rhetoric as a unified discipline and field-specific rhetoricssee Leff (1982) and Leff (1987).27 On the development of rhetoric in the Middle Ages see Conley (1994: 72–108); Camargo(1991); Murphy and Camargo (1990); Murphy (1974).28 For the transition of dialectic and rhetoric from the Middle Ages to the Renaissance seealso Conley (1994: 109–133); Leff (1978: 17–20); Garin (1969); Vasoli (1968); for theoriesof legal argumentation in this period see Maclean (1992); Troje (1977).

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