Page 257 - Gabrijela Kišiček and Igor Ž. Žagar (eds.), What do we know about the world? Rhetorical and argumentative perspectives, Digital Library, Educational Research Institute, Ljubljana 2013
P. 257
taking judges seriously 257
tion allowing the judge to detect a significance for legal statements relat-
ing to the concrete situation of the circularity between the judge him-
self/herself, the case and the system of normative sources, which is pos-
sible only within the framework of the pragmatic referents. Only after
such a complex procedure as this can the (serious) judge establish a (still
provisional) major premise for his/her final decision.
Of course during the phases of the interpretative process, many
criteria can be proposed to justify the choice of the legal statement(s),
their possible combination and even the pragmatic referents: the trial
is a place of dialogue and controversy, and different actors are there pre-
cisely for providing a number of criteria to identify the normative gen-
re which the disputed behaviour of S should be traced back to. That is
why I say that the major premise of the so-called “legal syllogism” is not
given, but must be found following a typical argumentative process. For
this reason, this phase of legal reasoning cannot be defined as formal un-
der any respect, nor can the reasoning itself be taken as being “ automat-
ic” (i. e. without choice ).
Believing that the major premise of the syllogism was immediate-
ly available to the judge, modern legal formalists have focused their at-
tention on the minor one that, arising from events which had occurred
in the past had to be discovered by the judge through the rules of evi-
dence (Taruffo, 2009). Such an operation – the description of a “fact” –
is seemingly similar to an empirical proof: an observer (the judge) must
verify the description of what actually (or at least more probably) hap-
pened and answer the question: did B commit or not commit P?, just as a
scientist has to explain the modalities of a specific event (e.g. is the hole
in the ozone layer responsible for global warming, or not?). This account
tends to look at the trial as a sort of “neutral” laboratory, where the more
scientific the approach to the judgment, the more the decision itself will
be guaranteed (Manzin, 2004).
The fact is that the rules of evidence are quite different from em-
pirical procedures, though they sometimes make use of scientific tools.
First of all, they are rules in the sense that they prescribe what, when
and how such tools can be legitimately used (whereas from this point
of view, scientists are much more, although not totally, free); secondly,
the legitimation of evidence does not necessarily depend on its efficacy
(while the effectiveness of technical instruments is essential in empiri-
cal proof); thirdly, the most widely-used “instrument” for obtaining ev-
idence – the witness – would normally be unacceptable from a strictly
tion allowing the judge to detect a significance for legal statements relat-
ing to the concrete situation of the circularity between the judge him-
self/herself, the case and the system of normative sources, which is pos-
sible only within the framework of the pragmatic referents. Only after
such a complex procedure as this can the (serious) judge establish a (still
provisional) major premise for his/her final decision.
Of course during the phases of the interpretative process, many
criteria can be proposed to justify the choice of the legal statement(s),
their possible combination and even the pragmatic referents: the trial
is a place of dialogue and controversy, and different actors are there pre-
cisely for providing a number of criteria to identify the normative gen-
re which the disputed behaviour of S should be traced back to. That is
why I say that the major premise of the so-called “legal syllogism” is not
given, but must be found following a typical argumentative process. For
this reason, this phase of legal reasoning cannot be defined as formal un-
der any respect, nor can the reasoning itself be taken as being “ automat-
ic” (i. e. without choice ).
Believing that the major premise of the syllogism was immediate-
ly available to the judge, modern legal formalists have focused their at-
tention on the minor one that, arising from events which had occurred
in the past had to be discovered by the judge through the rules of evi-
dence (Taruffo, 2009). Such an operation – the description of a “fact” –
is seemingly similar to an empirical proof: an observer (the judge) must
verify the description of what actually (or at least more probably) hap-
pened and answer the question: did B commit or not commit P?, just as a
scientist has to explain the modalities of a specific event (e.g. is the hole
in the ozone layer responsible for global warming, or not?). This account
tends to look at the trial as a sort of “neutral” laboratory, where the more
scientific the approach to the judgment, the more the decision itself will
be guaranteed (Manzin, 2004).
The fact is that the rules of evidence are quite different from em-
pirical procedures, though they sometimes make use of scientific tools.
First of all, they are rules in the sense that they prescribe what, when
and how such tools can be legitimately used (whereas from this point
of view, scientists are much more, although not totally, free); secondly,
the legitimation of evidence does not necessarily depend on its efficacy
(while the effectiveness of technical instruments is essential in empiri-
cal proof); thirdly, the most widely-used “instrument” for obtaining ev-
idence – the witness – would normally be unacceptable from a strictly
