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Justice, Law, and Argument Synthese Library JUSTICE, LAW, AND ARGUMENT SYNTHESE LIBRARY STUDIES IN EPISTEMOLOGY, LOGIC, METHODOLOGY, AND PHILOSOPHY OF SCIENCE Managing Editor: J AAKKO HINTIKKA, Florida State University Editors: DONALD DAVIDSON, University a/Chicago GABRIEL NUCHELMANS, University ofLeyden WESLEY C. SALMON, University ofArizona VOLUME 142 CH. PERELMAN Universite Libre de Bruxelles, Centre de Philosophie du Droit JUSTICE, LAW, AND ARGUMENT Essays on Moral and Legal Reasoning with an introduction by HAROLD J. BERMAN Ames Professor of Law, Harvard University D. REIDEL PUBLISHING COMPANY DORDRECHT: HOLLAND / BOSTON: U.S.A. LONDON: ENGLAND Library of Congress Cataloging in Publication Data Perelman, Cha:im. Justice, law, and argument. (Synthese library; v. 142) Chapters translated into English by various persons. Includes bibliographical references and index. 1. Justice-Addresses, essays, lectures. 2. Law­ Methodology-Addresses, essays, lectures. 3. Law-Philosophy­ Addresses, essays, lectures. 4. Law and ethics-Addresses, essays, lectures. I. Title. K239.P47 340'.1 80-16892 ISBN-13: 978-90-277-1090-1 e-ISBN-13: 978-94-009-9010-4 DOl: 10.1 007/978-94-009-90 10-4 Chapter 1 translated into English by John Petrie; Chapter 2-6 and 17 by Susan Rubin; Chapter 8 by Graham Bird; Chapter 9 by Melvin T. Dalgamo; Chapter 10 by Heather Relihan; Chapters 11-16 by William Kluback Published by D. Reidel Publishing Company, P.O. Box 17,3300 AA Dordrecht, Holland Sold and distributed in the U.S.A. and Canada by Kluwer Boston Inc., Lincoln Building 160 Old Derby Street, Hingham, MA 02043, U.S.A. In all other countries, sold and distributed by Kluwer Academic Publishers Group, P.O. Box 322, 3300 AH Dordrecht, Holland D. Reidel Publishing Company is a member of the Kluwer Group All Rights Reserved This edition and the translations by W. Kluback Copyright © 1980 by D. Reidel Publishing Company, Dordrecht, Holland and as specified on appropriate pages within Softcover reprint of the hardcover 1st edition 1980 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner TABLE OF CONTENTS PREFACE vii INTRODUCTION (by Harold J. Berman) ix ACKNOWLEDGEMENTS xiii 1. Concerning Justice 1 FIVE LECTURES ON JUSTICE 2. Justice and Its Problems 24 3. Equity and the Rule of Justice 34 4. On the Justice of Rules 44 5. Justice and Justification 55 6. Justice and Reason 66 7. Justice and Reasoning 76 8. Equality and Justice 83 9. Justice Re-examined 88 10. The Use and Abuse of Confused Notions 95 11. The Justification of Norms 107 12. Law and Morality 114 13. Law and Rhetoric 120 14. Legal Reasoning 125 15. Law, Logic and Epistemology 136 16. Law, Philosophy and Argumentation 148 17. What the Philosopher May Learn from the Study of Law 163 INDEX OF NAMES 175 INDEX OF SUBJECTS 177 PREFACE This collection contains studies on justice, juridical reasoning and argumenta­ tion which contributed to my ideas on the new rhetoric. My reflections on justice, from 1944 to the present day, have given rise to various studies. The ftrst of these was published in English as The Idea of Justice and the Problem of Argument (Routledge & Kegan Paul, London, 1963). The others, of which several are out of print or have never previously been published, are reunited in the present volume. As justice is, for me, the prime example of a "confused notion", of a notion which, like many philosophical concepts, cannot be reduced to clarity without being distorted, one cannot treat it without recourse to the methods of reasoning analyzed by the new rhetoric. In actuality, these methods have long been put into practice by jurists. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof. It is important, then, that philosophers should not limit their methodologi­ cal studies to mathematics and the natural sciences. They must not neglect law in the search for practical reason. I hope that these essays lead to be a better understanding of how law can enrich philosophical thought. CH. P. vii INTRODUCTION Ever since Descartes, Western philosophy has been dominated by the view that what we cannot prove by formal logic, what we cannot know with mathemat­ ical certainty, is necessarily arbitrary, irrational, subjective. For more than three decades Chaim Perelman has been fighting the premises upon which this view is based. He has attacked the Cartesian - and contemporary - dichotomies of object and subject, reality and value, reason and passions. He has contended that there is a logic of ends, and not only a logic of means, but that it is a dialectical logic, not a formal logic. It is the logic of rhetoric in the ancient sense: the logic of reasoned discourse, of argumentation, of justifica­ tion of choices. And it fmds its most important manifestation in law. Indeed, it is no accident that law in the West was once studied as a branch of rhetoric. As Professor Perelman says in the Preface to this book, "Legal reasoning is to rhetoric what mathematics is to formal logic." The essays contained in this book reveal many ways in which philosophical inquiry can be enriched by the analysis of legal experience. For example, philosophers such as Kant and Bentham, who have laid down broad universal principles of behavior, should be required, Professor Perelman states, to "examine the repercussions of the controversies which would arise from [the] application and interpretation [of those universal principles] in situa­ tions [of] conflict." Similarly, moral philosophers who are concerned with more specific norms, such as whether euthanasia is justified, would do well to consider, for example, the legal fiction implied in the frequent practice of jury acquittal of persons charged with euthanasia. Professor Perelman states that, in his view, this legal result is to be preferred to a general rule, although it is "inconceivable in [conventional] morality." More broadly, law can teach the philosopher ways of reasoning about values - e.g., how to balance values against each other, and how to bring about a synthesis of values. The philosopher will then see better that "reasons in the plural are at least as important as reason in the singular." "Reasons in the plural" have a historical dimension; they vary, depending upon circum­ stances. "There is a reality here that can entirely modify our perspective on reasoning in general." Underlying Professor Perelman's plea for an understanding of legal rea- ix x INTRODUCTION soning is his concern that modern philosophy encourages a relativism and a skepticism that ultimately destroys rationality itself. He writes: "If the appli­ cation of means to ends is the sole object of rational investigation and the ends themselves are the results of irrational choices, which reasoning does not allow us to decide, then our highly qualitative technological civilization will be put in the service of irrationally uncontrollable passions, desires, and aspirations." Although Professor Perelman takes the position of a philosopher writing about law for philosophers, he also has much to say to lawyers about law as well as about philosophy. In fact, his philosophic position depends upon his theory of law. It is a theory that by no means all, or possibly even most, con­ temporary lawyers would share. For the fact is that lawyers, too, especially American lawyers, have been strongly influenced by modern skepticism con­ cerning the possibility of reasoning about ends, and they, too, despite the truths implicit in their own discipline, have been infected by the dualistic analysis that sharply separates subject and object, emotion and reason, ends and means. Not long ago skepticism concerning the integrity of legal argumentation, and even concerning the validity of language all together, had reached such a point in the United States that leading jurists were building schools of legal thought on essentially irrationalist premises. Legal argumentation was thought to be purely manipulative: judges, it was said, decide cases on the basis of their prejudices and then make up reasons - which are not real reasons but mere rationalizations. Any case can be decided any way, it is always possible to fmd a justification, etc., etc. Today these "realistic" views of law have more or less subsided, but it is not by any means sure that they have been replaced by a belief that legal reasoning is, in Professor Perelman's sense, reasoning about ends and not only about means, or, to put it somewhat dif­ ferently, that legal reasoning about ends is ever genuinely persuasive. Professor Perelman has much to say about law itself that will be helpful to lawyers who start from such skeptical premises. He defmes justice in terms that most English and American lawyers, at least, whether or not they are skeptics, will fmd congenial: "the basic rule of justice," he states, "is that essentially similar situations be passed on in a uniform way." In the language of the English common law, like case should be decided alike. The purpose of rational legal argumentation, he then states, is to determine the similarities. The standard of judgment is that of the audience. However, each speaker postulates a "universal audience"; this seems to mean that he appeals to standards held by the actual audience (for example, a particular legal rule as INTRODUCTION xi interpreted by the particular tribunal) but seeks to identify those standards with ones which (in the view of the actual audience) all persons similarly situated would share. In other words, Professor Perelman's "universal audi­ ence" is not the same audience in all times and places but rather the principle of universality conceived in rhetorical terms.
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