Page 258 - 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
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What Do We Know about the World?
scientific viewpoint: what medical journal, for example, would publish
an article about a crucial scientific discovery resting only upon the testi-
mony of a few witnesses?
6. Scientific Contexts and Legal Ones
Upon reflection, I am quite convinced that there is a fundamental
difference between scientific contexts (either formal or empirical) and
legal ones.
A scientific context is:
i. monological
ii. linguistically artificial
iii. moving from hypothesis and axioms stipulated in advance.
On the contrary, a legal context is:
i’. dialogical (as the trial’s structure clearly shows)
ii’. linguistically vague
iii’. moving from various possible starting points (topoi).
At any point in the debate, legal actors can advance a particular
point of view about normative interpretation, factual description, or
logical connection. Each of them can choose from an open set of opin-
ions the one(s) that is (are) thought to be effective for building a reason-
able and persuasive discourse: a truly argumentative task performed by
lawyers, the prosecutor (in a criminal trial), mediators, and even expert
witnesses and witnesses, all giving the judge a variety of interpretations,
descriptions and inferences as possible premises (1) and (2), and conclu-
sions (3), for his/her reasoning.
Moreover, it should be noted that the legal conclusion reached by
the judge has the power to oblige someone to do or to suffer something.
The judge must decide and his/her decision must be applied (subjective
and objective obligation) by reason of his/her normative authority, and
not only as a result of the logical consistency or the empirical evidence of
his/her reasoning – a fundamental difference from authority in science,
which is based mainly upon coherence and verifiability.
In conclusion, since legal argumentation is not a matter of science,
we could conclude that it simply has to do with the legitimate power of
the judge (“auctoritas non veritas facit legem”: Scarpelli, 1984). But this
cannot be sustained, because a mere expression of power, even if author-
ized by the law, cannot properly be an argumentation; on the contrary,
from an argumentative point of view, it is a fallacy (see for instance ar-
gumentum ad baculum or ad metum). This is also the reason why a num-
scientific viewpoint: what medical journal, for example, would publish
an article about a crucial scientific discovery resting only upon the testi-
mony of a few witnesses?
6. Scientific Contexts and Legal Ones
Upon reflection, I am quite convinced that there is a fundamental
difference between scientific contexts (either formal or empirical) and
legal ones.
A scientific context is:
i. monological
ii. linguistically artificial
iii. moving from hypothesis and axioms stipulated in advance.
On the contrary, a legal context is:
i’. dialogical (as the trial’s structure clearly shows)
ii’. linguistically vague
iii’. moving from various possible starting points (topoi).
At any point in the debate, legal actors can advance a particular
point of view about normative interpretation, factual description, or
logical connection. Each of them can choose from an open set of opin-
ions the one(s) that is (are) thought to be effective for building a reason-
able and persuasive discourse: a truly argumentative task performed by
lawyers, the prosecutor (in a criminal trial), mediators, and even expert
witnesses and witnesses, all giving the judge a variety of interpretations,
descriptions and inferences as possible premises (1) and (2), and conclu-
sions (3), for his/her reasoning.
Moreover, it should be noted that the legal conclusion reached by
the judge has the power to oblige someone to do or to suffer something.
The judge must decide and his/her decision must be applied (subjective
and objective obligation) by reason of his/her normative authority, and
not only as a result of the logical consistency or the empirical evidence of
his/her reasoning – a fundamental difference from authority in science,
which is based mainly upon coherence and verifiability.
In conclusion, since legal argumentation is not a matter of science,
we could conclude that it simply has to do with the legitimate power of
the judge (“auctoritas non veritas facit legem”: Scarpelli, 1984). But this
cannot be sustained, because a mere expression of power, even if author-
ized by the law, cannot properly be an argumentation; on the contrary,
from an argumentative point of view, it is a fallacy (see for instance ar-
gumentum ad baculum or ad metum). This is also the reason why a num-
