Dialectic and Rhetoric in Legal Argumentation: Giovanni Damele

DIALECTIC AND RHETORIC
In 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]

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?

Argumentation
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

Argumentation
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.

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.
 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

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.
 Starting point: ex. undetermined legal concepts like "common

good", "good faith", "administrative probity", "credit",
"indecent exposure" and so on.
 Argumentative techniques

Argumentation
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.

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”.
 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

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.

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

Argumentation
THE PRAGMA-DIALECTICAL APPROACH
A legal process is analyzed in terms of an ideal model for resolution of disputes

Argumentation

Argumentation
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.

Argumentation
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

Argumentation
Strategic maneuvering

Argumentation
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

Argumentation
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:

Argumentation
1. argumentum a contrario
2. argumentum a simili (the analogical argument)
3. argumentum a fortiori
4. argumentum a completitudine
5. argumentum a coherentia
6. the psychological argument
7. the historical argument
8. the apagogical argument (reductio ad absurdum)
9. the teleological argument
10. the economical argument
11. the argumentum ab exemplo
12. the systematic argument
13. the naturalistic argument

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).

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.

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).

Argumentation
 (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.

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.

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.

Argumentation
 (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.

Argumentation
Distinction 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.

Argumentation
Distinction no. 2:
 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.

Argumentation
Distinction no. 3:
 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.

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]

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

Uploaded by

Copyright:

Available Formats

You might also like

Dialectic and Rhetoric in Legal Argumentation: Giovanni Damele

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dialectic and Rhetoric in Legal Argumentation: Giovanni Damele

Uploaded by

Copyright:

Available Formats

DIALECTIC AND RHETORIC

Everybody who advances a legal standpoint and wishes this

Tarello [1974] - Feteris [1997]

 How can a general model of argumentation be used for

Tarello [1974] - Feteris [1997]

The logical approach emphasizes the formal aspects of legal

The rhetorical approach emphasizes the content of arguments and the

Tarello [1974] - Feteris [1997]

 Georges Kalinowski: the necessary condition of the

Tarello [1974] - Feteris [1997]

Chaïm Perelman’s “New Rhetoric”

The acceptability of an argumentation is dependent on the

 Particular - Concrete Audience: ex. a magistrate or a jury in a

Tarello [1974] - Feteris [1997]

Chaïm Perelman: Logique juridique. Nouvelle rhétorique

 Starting point: ex. undetermined legal concepts like "common

Tarello [1974] - Feteris [1997]

Theodor Viehweg: Topik und Jurisprudenz

 Internal justification: an argument is justified if its conclusion

Tarello [1974] - Feteris [1997]

Stephen Toulmin: The uses of argument

 An argument consists of a claim defended by means of data, a

 The acceptability of the content of the argument, however,

Tarello [1974] - Feteris [1997]

Legal argumentation is considered from the perspective of a

Starting from the Habermas’ theory, Aarnio, Alexy and Peczenick

Tarello [1974] - Feteris [1997]

In the reconstruction of the justification of legal decisions, the

Tarello [1974] - Feteris [1997]

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

Tarello [1974] - Feteris [1997]

Tarello [1974] - Feteris [1997]

The ideal model of a critical discussion treats argumentative discourse

The ideal model stipulates ten rules that apply to an argumentative

In this context, fundamental is role of the analysis of fallacies in legal

Tarello [1974] - Feteris [1997]

Tarello [1974] - Feteris [1997]

Tarello [1974] - Feteris [1997]

From a practical point of view, Van Eemeren et al. apply a

Tarello [1974] - Feteris [1997]

 According to Perelman, there are specific legal argumentation

 According to Tarello, there are various argumentative forms,

Tarello [1974] - Feteris [1997]

Tarello [1974] - Feteris [1997]

(1) The argumentum a contrario implies that if a particular rule

Tarello [1974] - Feteris [1997]

 (3) According to the argumentum a fortiori if there is reason to

Tarello [1974] - Feteris [1997]

 (5) The argumentum a coherentia implies that conflicts between

Tarello [1974] - Feteris [1997]

 (6) The psychological argument refers to preparatory material

 (7) The historical argument is based on the assumption of

Tarello [1974] - Feteris [1997]

Tarello [1974] - Feteris [1997]

 (11) The argumentum ab exemplo (or authoritative argument or

Tarello [1974] - Feteris [1997]

 (13) The naturalistic argument, or argument of the nature of