Page 259 - 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. 259
taking judges seriously 259
ber of constitutional principles and rules preserve the reasonableness of
legal judgments (as set by before quoted arts. 360 CPC and 606 CPP).
The will of the judge certainly plays a central role in legal decisions, but
the domain involving an exercise of will cannot be the only one in which
either general or individual rules are given: reasonable elements are re-
quired in addition to assure a just judgment.
The next question is: how to obtain a reasonable argument in legal
context, which is not a merely scientific one? A typically methodological
question indeed.
7. Rhetoric and the Law
A logic suitable for a context that is dialogical, controversial, linguis-
tically vague and governed-by-commonplaces – such as the legal one –
must face a number of problematic issues, which are unfamiliar to the
procedures of formal logic (van Eemeren et al., 1996).
First of all, in a polemical dialogue monitored by an impartial
“third party” (the judge or the jury), actors struggle to draw the deci-
sion-maker’s attention. Consequently, they need some strategies for giv-
ing their discourses an attractive appeal. Especially in the initial phase
of argumentation, actors should provide aesthetic and emotional means
through their attitude (actio) and speech (elocutio) in order to strike the
audience: a logic of pathos in which both body and language are involved
to prepare further reasoning and to invite listeners to appreciate the ac-
tor’s own argument (protrepticon) (on the role of pathos in language and
argumentation: Plantin, 2011).
Such concern for material and linguistic tactics for eliciting pathos
should not be limited to the very first steps of argumentation,3 for we
should not forget that a legal context remains dialogical and controver-
sial from the beginning to the end; so actors must be on their guard at
every moment, if they want to avoid audience inattention or emotional
vacuums (Manzin, 2010).
The aesthetic aspect of argumentation, being a peculiar connotation
of rhetoric, came to be considered dominant especially during the mod-
ern age, when formal procedures of reasoning increasingly acquired a
condition of exclusivity in Western thought. But from a broader (and
classical) point of view, material and linguistic strategies for emotional
persuasion are only one part of the rhetorical argumentation, even if an
3 As maintained for instance by F. Cavalla, according to whom the sole purpose of aesthetic in rhetor-
ical argumentation is the captatio during the starting phase (Cavalla, 2007).
ber of constitutional principles and rules preserve the reasonableness of
legal judgments (as set by before quoted arts. 360 CPC and 606 CPP).
The will of the judge certainly plays a central role in legal decisions, but
the domain involving an exercise of will cannot be the only one in which
either general or individual rules are given: reasonable elements are re-
quired in addition to assure a just judgment.
The next question is: how to obtain a reasonable argument in legal
context, which is not a merely scientific one? A typically methodological
question indeed.
7. Rhetoric and the Law
A logic suitable for a context that is dialogical, controversial, linguis-
tically vague and governed-by-commonplaces – such as the legal one –
must face a number of problematic issues, which are unfamiliar to the
procedures of formal logic (van Eemeren et al., 1996).
First of all, in a polemical dialogue monitored by an impartial
“third party” (the judge or the jury), actors struggle to draw the deci-
sion-maker’s attention. Consequently, they need some strategies for giv-
ing their discourses an attractive appeal. Especially in the initial phase
of argumentation, actors should provide aesthetic and emotional means
through their attitude (actio) and speech (elocutio) in order to strike the
audience: a logic of pathos in which both body and language are involved
to prepare further reasoning and to invite listeners to appreciate the ac-
tor’s own argument (protrepticon) (on the role of pathos in language and
argumentation: Plantin, 2011).
Such concern for material and linguistic tactics for eliciting pathos
should not be limited to the very first steps of argumentation,3 for we
should not forget that a legal context remains dialogical and controver-
sial from the beginning to the end; so actors must be on their guard at
every moment, if they want to avoid audience inattention or emotional
vacuums (Manzin, 2010).
The aesthetic aspect of argumentation, being a peculiar connotation
of rhetoric, came to be considered dominant especially during the mod-
ern age, when formal procedures of reasoning increasingly acquired a
condition of exclusivity in Western thought. But from a broader (and
classical) point of view, material and linguistic strategies for emotional
persuasion are only one part of the rhetorical argumentation, even if an
3 As maintained for instance by F. Cavalla, according to whom the sole purpose of aesthetic in rhetor-
ical argumentation is the captatio during the starting phase (Cavalla, 2007).
