Page 262 - 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. 262
What Do We Know about the World?
way? Would it be possible to connect points arising out of the differ-
ent discourses, S1 and S2? As noted before, at the concluding steps
of his/her reasoning the judge might choose S1, S2 or even some-
thing else: a “legal syllogism” partially different from the ones put
forward by the parties (e.g. accepting the normative qualification
advanced by the prosecutor but not the measure of punishment,
having also accepted some lawyer’s arguments on the seriousness of
the crime).
4. building premises for the “ legal syllogism”4: what standpoint is rea-
sonably acceptable?
At the end of the dialectical check the judge has the precise elements
required for the justification of (1) and (2). In other words, he/she
can build the premises for the unique “legal syllogism” authorized
by the law, premises that must be clearly indicated in the written
reasoning of the decision, in order to easily allow a further check
by higher Courts, practical jurists and scholars of jurisprudence.
We can properly say that from now onwards the judge is no longer
a critical listener to the parties’ discourses and an evaluator of their
soundness: he/she is becoming now a sort of “third speaking person”
having his/her own discourse (S3), even if it is built with elements di-
alectically taken from S1 and S2. S3 is neither S1 nor S2; compared
to them, its content is the following: (the syllogism proposed by) S1 is
right; or (the syllogism proposed by) S2 is right; or, in an intermediary
way, something (but not all) is right either in (the syllogism proposed
by) S1 or S2.
5. enthymematic inference: given (1) and (2), then…?
The last move of legal argumentation links together the premises,
which have been built by the judge in the above mentioned ways:
according to one of the parties’ proposals or in a particular combi-
nation of both. In any case, because it starts from an evaluation (or
rather a set of evaluations) of the standpoints expressed in S1 and
S2, the judge’s inference cannot ever be defined as a mere “copy” of
the one or of the other. In addition, S3 is performative in nature and
such a condition integrates (not replaces!) its logical position. Con-
4 In a previous article (in Italian) I described step #4 as an “enthymematic inference” and step #5 as
“[conclusion of] legal syllogism” (Manzin, 2012c: 74–75). I want to clarify now that since the infer-
ence constitutes the final move in legal argumentation, it necessarily implies both the establishment
of the premises and the drawing of the conclusion, scheduled respectively under #4 and #5. For this
reason I prefer to distinguish here the former step of building (1) and (2) from the conclusive one of
inferring (3).
way? Would it be possible to connect points arising out of the differ-
ent discourses, S1 and S2? As noted before, at the concluding steps
of his/her reasoning the judge might choose S1, S2 or even some-
thing else: a “legal syllogism” partially different from the ones put
forward by the parties (e.g. accepting the normative qualification
advanced by the prosecutor but not the measure of punishment,
having also accepted some lawyer’s arguments on the seriousness of
the crime).
4. building premises for the “ legal syllogism”4: what standpoint is rea-
sonably acceptable?
At the end of the dialectical check the judge has the precise elements
required for the justification of (1) and (2). In other words, he/she
can build the premises for the unique “legal syllogism” authorized
by the law, premises that must be clearly indicated in the written
reasoning of the decision, in order to easily allow a further check
by higher Courts, practical jurists and scholars of jurisprudence.
We can properly say that from now onwards the judge is no longer
a critical listener to the parties’ discourses and an evaluator of their
soundness: he/she is becoming now a sort of “third speaking person”
having his/her own discourse (S3), even if it is built with elements di-
alectically taken from S1 and S2. S3 is neither S1 nor S2; compared
to them, its content is the following: (the syllogism proposed by) S1 is
right; or (the syllogism proposed by) S2 is right; or, in an intermediary
way, something (but not all) is right either in (the syllogism proposed
by) S1 or S2.
5. enthymematic inference: given (1) and (2), then…?
The last move of legal argumentation links together the premises,
which have been built by the judge in the above mentioned ways:
according to one of the parties’ proposals or in a particular combi-
nation of both. In any case, because it starts from an evaluation (or
rather a set of evaluations) of the standpoints expressed in S1 and
S2, the judge’s inference cannot ever be defined as a mere “copy” of
the one or of the other. In addition, S3 is performative in nature and
such a condition integrates (not replaces!) its logical position. Con-
4 In a previous article (in Italian) I described step #4 as an “enthymematic inference” and step #5 as
“[conclusion of] legal syllogism” (Manzin, 2012c: 74–75). I want to clarify now that since the infer-
ence constitutes the final move in legal argumentation, it necessarily implies both the establishment
of the premises and the drawing of the conclusion, scheduled respectively under #4 and #5. For this
reason I prefer to distinguish here the former step of building (1) and (2) from the conclusive one of
inferring (3).
