Page 263 - 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. 263
taking judges seriously 263
tent of (3) concludes the “legal syllogism” and makes the judgment
argumentatively forceful, providing a kind of deduction (enthyme-
ma) to the legal reasoning.
Here it is a diagram summarising S3:
Normative (de iure) Descriptive (de facto) Practical/Legal
"x(Px → MQx) Pa MQa
The judge – after checks #1, 2, The judge – after checks #1, 2, The judge enthymematically in-
3 and 4 – chooses the norma- 3 and 4 – chooses the descrip- fers a practical conclusion from
tive proposals in S1 or S2, or par- tive proposals in S1 or S2, or par- premises built in #4
tially both tially both
9. What is Legal Truth?
The conclusion (3) of the legal reasoning – at the same time argu-
mentative (rhetorical) and performative – has a status usually defined as
“legal truth”. I have tried so far to explain how legal evidence is not only
a matter of “subsumption” among supposedly given data (legal norms
and facts): the task of the judge is much more complicated, implying in-
terpretation and evaluation of arguments. We can say that “a proposi-
tion of law is true” (Patterson, 1996) only after determining, by an argu-
mentative analysis of the parties’ discourses opposed in the controversy,
a set of meanings related to the normative and factual statements.
The rhetorical (not formal) nature of legal reasoning would seem to
have little to do with the concept of truth, whose fundamental connota-
tion should be the one of undeniability. Thus a proposition of law like (3)
should be more exactly described as probable or plausible and not true in
the proper sense. Regarding such a question (which of course can be dis-
cussed here only very briefly) I believe that two main issues are at stake:
(a) what does probable mean and (b) what a factual (or historical or ma-
terial) truth is.
(a) The first issue dates back to the “great division” between demon-
stration and argumentation as addressed especially by Chaïm Perelman,
according to whom a proposition ascertained by formal or empirical sci-
ence is undeniable, whereas argumentation gains only disputable con-
clusions (Perelman and Olbrechts-Tyteca, 1958; contra Manzin, 2012a).
As I have said before, the field of science is characterized by linguistic
and contextual conditions which are different from the ones in a trial:
the former allow conclusions to be inferred that are true because they
are coherent with the formal or empirical premises of the demonstra-
tion (which have been conventionally established before the logical oper-
tent of (3) concludes the “legal syllogism” and makes the judgment
argumentatively forceful, providing a kind of deduction (enthyme-
ma) to the legal reasoning.
Here it is a diagram summarising S3:
Normative (de iure) Descriptive (de facto) Practical/Legal
"x(Px → MQx) Pa MQa
The judge – after checks #1, 2, The judge – after checks #1, 2, The judge enthymematically in-
3 and 4 – chooses the norma- 3 and 4 – chooses the descrip- fers a practical conclusion from
tive proposals in S1 or S2, or par- tive proposals in S1 or S2, or par- premises built in #4
tially both tially both
9. What is Legal Truth?
The conclusion (3) of the legal reasoning – at the same time argu-
mentative (rhetorical) and performative – has a status usually defined as
“legal truth”. I have tried so far to explain how legal evidence is not only
a matter of “subsumption” among supposedly given data (legal norms
and facts): the task of the judge is much more complicated, implying in-
terpretation and evaluation of arguments. We can say that “a proposi-
tion of law is true” (Patterson, 1996) only after determining, by an argu-
mentative analysis of the parties’ discourses opposed in the controversy,
a set of meanings related to the normative and factual statements.
The rhetorical (not formal) nature of legal reasoning would seem to
have little to do with the concept of truth, whose fundamental connota-
tion should be the one of undeniability. Thus a proposition of law like (3)
should be more exactly described as probable or plausible and not true in
the proper sense. Regarding such a question (which of course can be dis-
cussed here only very briefly) I believe that two main issues are at stake:
(a) what does probable mean and (b) what a factual (or historical or ma-
terial) truth is.
(a) The first issue dates back to the “great division” between demon-
stration and argumentation as addressed especially by Chaïm Perelman,
according to whom a proposition ascertained by formal or empirical sci-
ence is undeniable, whereas argumentation gains only disputable con-
clusions (Perelman and Olbrechts-Tyteca, 1958; contra Manzin, 2012a).
As I have said before, the field of science is characterized by linguistic
and contextual conditions which are different from the ones in a trial:
the former allow conclusions to be inferred that are true because they
are coherent with the formal or empirical premises of the demonstra-
tion (which have been conventionally established before the logical oper-
