Page 265 - 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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taking judges seriously 265
approach to “what really happened”.5 This kind of legal pessimism/opti-
mism, broadly diffused among lawyers, judges and simple citizens, im-
plicitly or explicitly presumes that a factual truth does exist “somewhere”
in unchangeable conditions (like A=A) and that the purpose of the trial
is to (try to) describe A using the means given by law and human knowl-
edge. No doubt that the purpose of the judgment is to furnish normative
descriptions of “something” like A, but such “something”, since it hap-
pened in the past, never properly exists within the space-time context of
the judgment. In other words, A remains always and only hypothetical,
because no further perspective points are provided in a space-and-time-
free condition to verify the correspondence A=A. Then, when we talk
of “true” or “false”, such a definition should be correctly related to the
description of the event under judgment, not to the event itself, which
is inconceivable outside our knowledge of it in a different space-time.
Indeed, what “truth” could a fact in itself have? The one deriving from
a sort of self-evidence? – If so, our reasoning should suffer a fallacious
regressus ad infinitum. Is it then a sort of transcendental status? – We
could affirm that only by accepting some prescriptive assertions: a mat-
ter of will, in such case, not of reason. Finally, is it the result of an empir-
ical proof? – Contemporary physics recognises very well that empirical
observations always modify the object of the experiment.
In conclusion: there is no “factual” or “historical” or “material”
truth which we can talk about at the end of the trial (and, I would guess,
everywhere) but the truth of rhetorical arguments built around some
normative and factual hypothesis, in a way and to the extent that such
arguments were coherent and, thus, undeniable.
10. Why Legal Truths are Truths
The above-mentioned “legal pessimists/optimists” could presume
at this point of my article that argumentative (rhetorical) truth is ac-
tually a very weak one, depending on the consistency of standpoints
whose places and connections can be put in doubt at any time. I might
agree with them, but my question is: what, then, is a strong(er) truth?
If it were demonstrable, as in Perelman’s opinion, it should be a truth
granted by the coherence between formal or empirical premises and
the conclusion. From this point of view, the only difference between
demonstration and argumentation should be the one regarding the na-
ture of scientific monologue, which is conventional and linguistically
5 For a critical comparison between realistic and anti-realistic accounts on legal truth, see Patterson
(1996).
approach to “what really happened”.5 This kind of legal pessimism/opti-
mism, broadly diffused among lawyers, judges and simple citizens, im-
plicitly or explicitly presumes that a factual truth does exist “somewhere”
in unchangeable conditions (like A=A) and that the purpose of the trial
is to (try to) describe A using the means given by law and human knowl-
edge. No doubt that the purpose of the judgment is to furnish normative
descriptions of “something” like A, but such “something”, since it hap-
pened in the past, never properly exists within the space-time context of
the judgment. In other words, A remains always and only hypothetical,
because no further perspective points are provided in a space-and-time-
free condition to verify the correspondence A=A. Then, when we talk
of “true” or “false”, such a definition should be correctly related to the
description of the event under judgment, not to the event itself, which
is inconceivable outside our knowledge of it in a different space-time.
Indeed, what “truth” could a fact in itself have? The one deriving from
a sort of self-evidence? – If so, our reasoning should suffer a fallacious
regressus ad infinitum. Is it then a sort of transcendental status? – We
could affirm that only by accepting some prescriptive assertions: a mat-
ter of will, in such case, not of reason. Finally, is it the result of an empir-
ical proof? – Contemporary physics recognises very well that empirical
observations always modify the object of the experiment.
In conclusion: there is no “factual” or “historical” or “material”
truth which we can talk about at the end of the trial (and, I would guess,
everywhere) but the truth of rhetorical arguments built around some
normative and factual hypothesis, in a way and to the extent that such
arguments were coherent and, thus, undeniable.
10. Why Legal Truths are Truths
The above-mentioned “legal pessimists/optimists” could presume
at this point of my article that argumentative (rhetorical) truth is ac-
tually a very weak one, depending on the consistency of standpoints
whose places and connections can be put in doubt at any time. I might
agree with them, but my question is: what, then, is a strong(er) truth?
If it were demonstrable, as in Perelman’s opinion, it should be a truth
granted by the coherence between formal or empirical premises and
the conclusion. From this point of view, the only difference between
demonstration and argumentation should be the one regarding the na-
ture of scientific monologue, which is conventional and linguistically
5 For a critical comparison between realistic and anti-realistic accounts on legal truth, see Patterson
(1996).
