The New Theory of Argumentation and American Jurisprudence

THE NEW THEORY OF ARGUMENTATION AND AMERICAN JURISPRUDENCE

MieCZySlaW M ANEL I

The purpose o f this essay is t o compare American legal philosophy wit h the new theory o f argumentation developed by Ch a im Perelman. O u r analysis can be summarized in the following wa y: O liv e r We n d e ll Holmes, Benjamin Cardozo, John De we y a n d ma n y o t h e r eminent representatives o f American philosophy and jurisprudence found that in order to develop th e ir ideals and theories, th e y had to go beyond the formalistic logic of syllogisms. They started to search fo r new methods b u t t h e y n e ve r d id so lve t h e problem. Th e answer that they sought, however,was provided b y the p ro - fessor o f logic, philosophy, and jurisprudence a t the Un ive r- sité Libre of Brussels, Chaim Perelman, inventor of the n e wly elaborated theory of argumentation which he himself has called the Ne w Rhetoric, after Aristotle. Here we will concentrate chiefly o n the problems o f ju ris- prudence and mo ra lity in politics. I n th e f irst chapters w e will analyze th e respective ideas o f th e American authors; afterwards we will show how the Ne w Rhetoric is an organic and logical continuation and evolution o f American jurisprudence.

It is a matter o f fact that in the twentieth century most eminent representatives o f A me rica n jurisprudence h a v e found that fo rma l lo g ic is inadequate f o r th e interpretation and application o f legal norms, e ith e r statutes o r the co m- mon la w. Fo r ma n y social, economic, and p o litica l reasons, Americans realized that the life of the la w cannot rest on the logic o f syllogisms, long before th e ir European counterparts. Wh y the Americans have the p rio rity in this field is a topic 20 MIECZYSLAW MANE,' for a special study, wh ich is not pertinent to o u r theme. From the v e ry beginning o f h is practical and theoretical activity, Justice O live r Wendell Holmes helped to la y down the premises fo r the n e w ju rid ica l methodology. In the lectures on «Agency» wh ich were delivered in 1891, Holmes asserted «that the whole outline o f la w is the resul- tant o f a co n flict a t e ve ry p o in t between lo g ic a n d good sense—the one striving to wo rk fiction o u t to consistent re - sults, the other restraining and at last overcoming that effort when the results become too manifestly unjust» ( 1 Could t h is sentence be interpreted as a condemnation o f )th. e use of logic, o r of common sense ? Is there re a lly an un- bridgeable chasm between the t wo ? I t wo u ld rather appear that Holmes wanted merely to state that an indiscriminate use of formal logic (the logic o f syllogisms) could lead to «manifestly unjust» consequences and that therefore in the process of interpreting a n d applying th e l a w w e should use to o ls other than fo rma l logic. W e should n o t abandon logic, b u t we should not expect o r demand too much fro m the rigorous use of syllogisms. Should we, on the other hand, decisively turn to «good sense» and rely mainly on it to solve legal problems ? This policy would not be advisable either. «Good» o r «common» sense is often identified wit h «natural justice» o r «natural la w» a n d vice versa. Ho lme s c ri t i c a l re ma rks a b o u t «natural la w» should be applied to «good sense» as we ll: «The jurists wh o believe in natural la w seem to me to be in that naive state of mind that accepts what has been fa milia r and accepted b y them and their neighbors as something that must be accepted by all men everywhere» ( 2 The co n f lict b e twe e n f o rma l « lo g ic» a n d «good sense» )(.which usually presents itse lf under natural reason o r law), according to Holmes, sometimes becomes a conflict between an alleged consistency o f logic (indeed, leading to injustice) and the naiveté of familiar convictions.

(') O liv e r We n d e ll HOLMES, Collec t ed Legal Papers ( N e w Y ork : Pet er Smith, 1952), p. 50. ( 2 ) I b i d . , p . 3 1 2 . AMERICAN JURISPRUDENCE 21

Legal norms should not be treated like abstract mathematical axioms because la w is d ire ctly connected wit h the re a l conflicts of life.

But the provisions o f the constitution are not mathematical formulae having their essence in their form; they are organic livin g institutions... Their significance is vita l not formal; it is to be gathered not simply by taking the words and a dictionary, but b y considering their origin and the line o f th e ir growth (').

What is «vital» should not be treated like a «dead letter», or like a formula for life which is reduced to its «form». Law is the response to o u r aspirations, to the experience o f mankind, and is not reducible to a formula whose meaning has been pre-determined. Me re reading o f the legal norms is not sufficient; it is equally necessary to consider their whole line of growth as well. One should start at the beginning, but only in order to realize fu lly that law, as the «witness and exter- nal deposit» o f our lives, registers the moral development o f society ( t4ion of formal logic to the livin g organisms o f the la w brings )a.b out results wh ich are repellent fro m the human viewpoint. F Aondr y et, after numerous criticisms o f the insufficiency o f tlogic,h wi e find Holmes making the following statement: «The strai ning o f la wye rs i s a tra in in g i n logic. Th e process o f ranaelogy, discrimination, a n d deduction a re those i n wh ich atheys are most a t home. The language o f judicial decision is omain ly the language o f logic» ( ,5 T hese words were to become famous in ju rid ica l literature at)o. indicate h o w important logic is in legal training (1. n Strictly speaking, Ho lme s n o t io n o f fo rma l lo g ic d iffe rs ufromn that usually accepted in o u r time. Discrimination and c r i ( t 205.3 i c )( a G4() Ilbid. , p. 181. o o)( r mH8 ) d pO LT o e rMh g sEe mvSH a .«o t UTl m i .h Se c .Ps a ,aR p 2te p 3ha d l 3o fe i U .tr c Sh, a .ep - 6L. 0a2 4w0 ,»9 6,. 1C 0o (l 1l 9e 1c 3t )e .d IL ne Tg ha el HP oa lp me er s R, ep a. d1 e7 r0 ,. p . 22 MIECZYSLAW MANELI analogy a re foreign t o fo rma l logic. Nevertheless t h e fa ct that Ho lme s treated f o rma l lo g ic mo re b ro a d ly does n o t alter the tenor of our remarks. In an address delivered to the Supreme Court of Massachus- setts in 1897, Holmes stressed h o w va in was the conviction of those who looked fo r certainty in the application o f logic to la w: «And the logical method and fo rm flatter th a t long- ing f o r certainty and f o r repose wh ich is i n e ve ry human mind. B u t certainty generally is illusion, and repose is n o t the destiny o f man» ( 7 The above is one o f his most important observations con- c).erning the importance of logic in legal practice: logic creates the illusion o f certainty; actually such certainty either does not exist or cannot be attained. Even should it exist to a certain degree, i t wo u ld n o t o we its existence to th e lo g ic o f syllogisms. The most damaging illusion, however, is th e illu sio n that legal conclusions a re fre e f ro m subjectivity, th a t t h e y a re completely detached fro m the individual wh o harbors them; that they have a life o f their own. The contrary is true. A s Holmes writes:

Behind the logical form lies a judgment as to the relative worth and importance o f competing legislative grounds, often an inarticulate and unconscious judgment it is true, and yet the ve ry root and nerve of the whole proceeding. You can give a n y conclusion a logical fo rm ( 8 Le)g•al conclusions can always be given in a logical form. It is fo r this reason that lawyers are trained in logic. This is not to say that they are not to be trained to apply logic to the interpretation of legal norms (this ve ry often becomes impossible when the quantitative measurements are not known), instead they learn h o w to present th e ir o wn subjective conclusions in an objective, impersonal, logical, form. Training in

( 7( )8 H) OI Lb Mi Ed S. , C o l l e c t e d L e g a l P a p e r s , p . 1 8 1 . AMERICAN JURISPRUDENCE 23 logic does not pertain to the essence o f professional a ctivity in th e fie ld o f law, b u t to th e forms o f legal presentation: subjectivity must be presented as objectivity. These considerations do not make a good case f o r formal logical thought in the sphere of law. An d because one is not able t o reach a n exact logical conclusion i n a g ive n case, one's conclusions

can d o n o mo re than embody th e preference o f a given body in a given time and place. We do not realize how large a part o f o u r la w is open to reconsideration upon a slight change in the habit of the public mind N o concrete proposition is self-evident; no matter how ready we may be to accept it

Such is the essence o f Holmes' v ie w o f the ro le o f logic. Every ju d icia l decision (n o t concerned wit h technical p ro - blems such as data), apart from its logical form, embodies the preference of a given body rather than a determination drawn from the «iron logic,» wh ich supposedly is the one correct, certain, a n d absolute expression o f absolute justice. O n the contrary: ju rid ica l decisions are subjective because th e y re - flect the personal preference o f the author who is subject to the influence o f th e changing moods a n d opinions o f t h e public. «No concrete proposition i s self-evident ...» t h is means that a proposition must seek the adherence o f the minds o f one's hearers. The so-called compelling force of self-evidence, obviousness, rationality, and logical consistency, are not sufficient in themselves. One must use the force of argument to persuade those at whom the arguments are directed. This last conclusion was never expressed b y Holmes. I t portends the great leap from the realm of formal logic to the realm o f argumentation. Holmes d id not leave one stone o n another in destroying illusions about the role o f syllogisms in law. But he d id not

( 0 ) I b i d . , p . 1 8 1 . 24 MIECZYSLAW MANELI have anything to replace formal logic so that reasonableness in juridical practice would be assured. The ground f o r th e N e w Th e o ry o f Argumentation wa s cleared b y Holmes. But it was John Dewey wh o added n e w dimensions to his analysis.

In his essay «Logical Method and Law»p John Dewey analyzes Holmes' ideas about the place of logic in the interpretation of la w. De we y concludes t h a t whenever Ho lme s uses t h e words (in his legal writings), «logic» o r «logical,» h e means «formal logic,» logic as «formal consistency,» the consistency of «concepts i r r e s p e c t i v e of the consequences o f their application to concrete matters-of-fact» ("). Jurists a re inclined to use the ready-made, familiar, co n - cepts o f logic, because i t is convenient and economical f o r them to do so. No further effort is required to devise a new pattern; furthermore, recourse to logic gives rise «to a sense of stability, of a guarantee against sudden and arbitrary changes o f the rules» ("). One should be wa ry of this use o f logic and «a sound logic» will guard against it. Dewey vie ws fo rma l lo g ic, o r the lo g ic o f syllogisms, a s a logic wh ich is not «sound» (concerning application to law, morality, and politics). B u t wh a t is «a sound lo g ic ?» He re Dewey's explanations a re meagre. He does, however, ma ke an important comment regarding Holmes' famous expression: «The actual life of la w has not been logic: it has been experience». (")

( and1 Co., 1931), p. 130. e9 l Ibid., p. 131. J( Tho1e Common Low. Later one reads: «The f elt necessities o f the time, t he preh2valent moral and politic al theories, intuitions o f public polic y , av owed or n)u nconscious, ev en t h e prejudic es wh ic h t h e judges s hare w i t h t h e ir felDTlow-men, hav e a good deal more t o do than the s y llogis m in determin- Eh Wi Es Ys ,e Pn ht ie ln oc se oi ps ho yn ae no df Ct ih ve if li ir zs at t io oa np (p Ne ea wr Yi on rt kh :e Mb io no tk ob ny ,H Bo al tm ce hs , AMERICAN JURISPRUDENCE 25

Dewey understands that here Holmes uses the wo rd logic in the traditional orthodox way, meaning the logic o f syllo - gisms a n d De we y stresses t h a t th e re e xists a n antithesis between such lo g ic and experience, between th is lo g ic and good sense. Consequently, there is a need fo r «another kin d of logic» (1. This «other» logic wo u ld not assert that reason has «fixed forms of its own» anterior to the subject matter, to which «the latter have to be adapted» (")• Orthodox lo g ic is a lo g ic o f «rigid demonstration», but not of «search and discovery», De- wey states. Th e logic o f syllogisms pays no attention to the social consequences of decisions made with its help. What can be said of the «other» kin d of logic which Dewey recommends ? I t w i l l b e a lo g ic wh ich w i l l reduce th e in - fluence of habit: it will facilitate the use of good sense; it will take into account the social consequences of legal decisions; it will deal with the operations of thought and not only with its results; i t w i l l n o t arrogate t o itse lf th e presumption t h a t every possible case wh ich ma y arise can be resolved simp ly on the basis o f a fixed antecedent rule. According to formal logic, a logical conclusion «subsumes» a particular under an appropriate general principle; nothing more need be said. According t o th e «other kin d o f logic», general rules d o not mechanically decide concrete cases; nothing necessarily follows automatically fro m general statements o r general le - gal rules. General rules can only act as «generic ways» wh ich may aid in solving any given question. Dewey calls this «other logic» a n «experimental logic,» (")

ing the rules by whic h men should be governed. This embodies t he s tory of a nation's dev elopment t hrough m a n y c enturies a n d i t c annot h e dealt wit h as i f i t contained o n ly t he ax ioms and c orollaries o f a book of mathematics». (Cambridge: Th e Belk nap Press o f Harv ard Univ ers it y Press, Mass., 1963), p. 5: 1") J ohn DEWEY, op., cit., p. 132. (") Ibid. 26 MIECZYSLAW MANELI a «sound» logic, a «vital» lo g ic ( 1in6quiry,» ( )1 7Tahe nusde o f tfhei «nlogaic lo fl inyqu iry» does not reduce «predic- t)a bilithy» in e the sp here of law. Quite the contrary: theoretical «bceretalcintay ow i l lg b e rieplacced b y practical ce rta in ty (1. Social ouneesdse w ill fbe met because the logic of inquiry relates to con- isequet nces and not to antecedents ("). i There i s a gap, De we y writes, between antecedents a n d sthe ne w requirements of life. Whoever uses antecedents alone «mustf dlo so in an arbitra ry manner covered wit h syllogisms. e Txhosie who use the «experimental logic», however, are more bcreal tivee, more oriented toward re a lity and give mo re assur- .anc»e t hat the la w w i l l be applied as re g u la rly as possible. («Gambling» wit h o ld rules does n o t increase «practical ce r- "tainty», but instead serves the «virtual alliance between the )judiciary and entrenched interests» ( 2 Such are the social characterisitcs of the «logic of inquiry», Ias understood b y Dewey. Th is logic serves t o promote p ro - )gress, i t is basically anti-conservative, i t is oriented to wa rd social justice. Moreover, this «vital logic» takes into account the fact that «the personal element cannot wh o lly be excluded» (") f ro m judicial decisions. But h o w can such a «subjective» decision preserve it s authority, it s aura o f o b je ctivity ? Th e answer can o n ly be through the introduction o f the element o f the audience. The absence of the latter element is what separates Dewey's «logic o f inquiry» fro m the new theory of argumentation pro- pounded b y Perelman, as applied to jurisprudence. Holmes proved that the logic of syllogisms can lead to un-

( 1( 51( )6(1 I)1(1 9) Ibid., p. 136. bI2(") Ibid., p. 138. ib)( diI2( .db'2 ,.i)2 p,dI) .pbI 1.,ib 31pdi 3.d .619, .4p, 0.p .1 31 93 .6 . AMERICAN JURISPRUDENCE 27 reasonable, inhumane results. Dewey proved that formal logic can aid «the bulwarks o f reaction» ("). He subsequently elaborated h is lo g ic o f experience. Perelman we n t beyond De- wey. In considering the reasonableness o f mo ra l norms De we y advances half a step further toward rhetorical logic. In the «Afterword» (1946) t o h is book, The Public and Its Problems (first published in 1927), De we y makes the fo llo w- ing remarks concerning moral norms and their social value:

in order to interest the citizens i n an actual war, i t it has been necessary to carry on a campaign to show that superior moral claims were on the side o f a wa r policy. The change o f attitude is not fundamentally an affair o f moral conversion, a change f ro m obdurate immo ra lit y to a perception o f the claims o f righteousness. I t results from g re a tly intensified recognition o f the factual co n - sequences of war (").

From Dewey's point o f vie w, a s expressed in one o f h is last writings, wh a t is mo ra l o r immoral does not depend o n any unchangeable, absolute mo ra l category; i t depends o n public understanding and the perception o f wh a t should b e regarded as a rig h t (moral, ju st) w a y o f acting. According to the absolutistic philosophies o f mo ra lity and truth, wh e n one party supports a wa r and a second opposes it, o n ly one can represent the requirements o f mo ra lity and justice; th e other must be sunk in «obdurate immorality». Once we admit the public's opinion into the spectrum o f our evaluation, the results o f our analysis will be broader, deeper, more flexible, but b y this we do n o t mean (more eclectic), mo re humane. Both factions, pro-and-anti-war, m a y represent mo ra l a n d social values at least fo r a time. When the dialogue goes on, when n e w facts about the conduct o f the wa r and the b e - havior of the aggressors become known (Dewey refers to W W

( 2( The32 Swallow Press, 1954), p. 224. )4 I) bJ io dh .n ,D pE .W 1E 3Y 9, .q A f t e r w o r d » i n T h e P u b l i c a n d i t s P r o b l e m s ( C h i c a g o : 28 MIECZYSLAW MANELI

II), wh e n the public becomes mo re and mo re persuaded b y the old and the new arguments o f the pro-war faction—then, more and more people w i l l perceive wh o represents «superior moral claims». Fro m the absolutistic dogmatic viewpoint, when one changes one's mo ra l attitude, o n e has undergone a «moral conversion». No t so, says Dewey. In this respect his theory coincides wit h the Ne w Rhetoric. N e w mo ra l a wa r- eness and a change o f mind are a normal, non-revolutionary, development resulting from the public dialogue. I t also means that opposition to wa r ma y become mo ra lly untenable a t a certain point, although for a while it may have been regarded morally justifiable. The ma jo rity will vie w their political ad- versaries as representatives o f obdurate immo ra lity. A t a n y rate, the moral, o r immoral, has n o absolute content. In this manner Dewey made once more a tu rn toward the rhetorical tradition.

III

Chaim Perelman has become one o f the most creative and innovative authors i n th e fie ld s o f philosophy, lo g ic, a n d jurisprudence during the fo rty years of his scholarly activity. The foundation and elaboration of the new theory of argumentation, which he calls The New Rhetoric, represents a new philosophy and methodology o f the social sciences. In th e essay, «The N e w Rhetoric: A Th e o ry o f Practical Reasoning», Perelman tells o f his o wn intellectual evolution. His first study on justice was published in 1945. One o f his principles was that there is an insurmountable barrier between the judgment of facts, and values. He was deeply dissatisfied with a philosophical inquiry car- ried o n wit h in th e limit s o f lo g ica l e mp iricism because i t «was not able to provide an ideal of practical reason, that is, the establishment o f ru le s a n d models f o r reasonable a c - tion» ( 2 5 M Chaim PERELMAN, «The N e w Rhetoric : A Theory o f Prac tic al Rea- s) o. ning», i n The Great Ideas Today 1970, Encyclopaedia Britannica, Chic a- go, 1970, p. 280. AMERICAN JURISPRUDENCE 29

In th is fra me o f min d h e asked himself: « ... i s th e re a logic o f value judgments th a t makes i t possible f o r u s t o reason about values instead o f making th e m depend so le ly on irra tio n a l choices, based o n interest, passion, prejudice, and myth ?» (") Perelman was n o t prepared to accept any fo rm o f subjectivism, scepticism, absolutism, o r intuitionism i n h is th e o ry of value; h e could not accept existentialist subjectivism, a l- though he appreciated the existentialist criticism o f positivist empiricism and rationalistic idealism. A clue toward the solution of his dilemma was given Perel- man by the method employed by the German logician Gottlob Frege wh o analyzed the reasoning used b y mathematicians. The result of these investigations and the tracing of the actual empirical lo g ica l reasoning t o achieve va lu e judgments b y moralists, politicians, a n d authors a re documented i n Th e New Rhetoric, Perelman writes:

For a lmo st t e n ye a rs M m e L . Olbrechts-Tyteca a n d I conducted such a n in q u iry a n d analysis. W e obtained results t h a t neither o f u s h a d e ve r expected. Wit h o u t either knowing or wishing it, we had rediscovered a part of Aristotelian logic that had been long forgotten or, a t any rate, ignored and despised. I t was the p a rt dealing with dialectical reasoning, as distinguished fro m demonstrative reasoning. W e called th is n e w, o r revived, branch o f study, devoted to analysis o f informal reasoning, The New Rhetoric (").

In this wa y the ancient rhetoric was revived. But a renais- sance is never simply a rebirth of the past. It has new elements and operates in a new manner under new circumstances. The Ne w Rhetoric was born as a result of the practical and theoretical needs posed b y the social and intellectual devel-

( 2( 2 )7 I) bI ib di .d . , p . 2 8 1 . 30 MIECZYSLAW MANELI opment o f o u r century. Tra d itio n a l empiricism, positivism, neopositivism, pragmatism, rationalism, a n d a l l t h e ir n e w forms we re unable t o answer th e topical questions o f o u r day. The new requirements of life were pressing: people had to make decisions, they wanted to make them in a reasonable way. I n the twentieth century especially we have seen suc- cessive waves o f irrationalism b y rig h t and le ft win g totali- tarianisms, n o t o n ly in the emerging nations, b u t also i n a ll well-established western democracies (1. Fro m th e ve ry beginning, The Ne w Rhetoric has served as a tool fo r analysis of the spheres o f life wh ich go beyond the ambit o f formal logic, thereby being relegated to methods usually far from the conscious application of reason.

I v

The Ne w Rhetoric has three basic elements wh ich establish its methodological basis fo r a philosophy of consistent rationalism:

— a n e w solution f o r the relationship between th e reasonable and the rational; — the problem of the audience; — the problem of the dialogue.

There have always been a number of intellectuals wh o be- lieved that when one presents a cle a r argument, tru th fu lly and logically substantiated, the mere power o f the syllogism and truth should be sufficient to make a definitive impact on the minds o f everyone able to think. Such intellectuals adhere to Descartes who said that if two men have contrary judgments about the same thing, one a t least must be mistaken and irrational, although it may be that

( p. 280. L e t u s remember t h a t already i n 1939 George O r we ll obs erv ed tha8t a s imple restatement o f the obv ious had become a dut y f o r t he in - tel)li gent man. Th e s ituation has not improv ed i n t he las t three decades. C f . S t e p h e n H A S E L E R i n C o m m e n t a r y , v o l . 6 4 , N o . 2 , A u g u s t , 1 9 7 7 , AMERICAN JURISPRUDENCE 31 both a re in error. A t a n y rate, a s Descartes write s, i f the reasoning o f either we re certain and evident, h e wo u ld b e able to convince his opponent of its truth ( 2 The point o f departure o f the th e o ry o f argumentation is )d.iferent: according to the New Rhetoric, the Descartean claims are excessive and unreasonable. I t is Perelman's contention that both parties ma y have good, resonable, opinions because human, practical, political, and moral problems cannot be reduced to the antinomy, tru e o r false. There a re problems which cannot even be presented in the categories o f formal logic, they cannot b y syllogistically expressed o r proven. Di- verse opinions can be reasonable a t the same time because there is a difference between wh a t is rational and wh a t is reasonable. Th is distinction lie s a t th e heart o f Perelman's New Rhetoric and Pluralism ("). According to various forms o f philosophical and ju rid ica l positivsm, formal logic and experience are the sole tools f o r providing demonstration and verification. I f the rational is so narrowly defined, then nearly the entire sphere which is concerned with action, including politics and morality, ois turned over to the irrational» ( 3 t The o n ly reasonable decision wo u ld seem t o b e o n e ). that is in conformity wit h the utilitarian calculations. I f so, a ll ends would be reduced to a single one of pleasure or u tility, and a ll conflicts o f values would be dismissed as based on futile ideologies (").

The reduction o f th e ra tio n a l t o o n e p rin cip le leads t o either irra tio n a l p lu ra lism, o r t o mo n ism o f values. T h e monism o f values is u su a lly irrational and unreasonable, i t

( sio2ns», i n Droit, morale et philosophie, Paris, 2 1la9t9io7n6 b, y Wp. K.lub ack1). 6 2 ( )(E n g l i s h t P2(39r Chaaim PnERELsMAN, -«The Ne w Rhetoric: A Theory of Practical Reason- ingE9» , p. 302. RT(32) Ibid. Eh Le Mp Ar No ab nl ae lm yo zf ep sl tu hr ia sl i ds em aw i nl «l Db ée sd ai cs c ou rs ds e td rl a t ie or n. a l i t é d e s d é c i - 32 MIECZYSLAW MANED often has been used for the purposes o f the authoritarian re - gimes, especially those which pretend to be based on rationality («crackpot realism»—see b e lo w). T h e o f f icia l S o vie t theory of morality, f o r instance, introduces the following generally known axiom as the basis of socialist ethics: anything which helps to achieve the victo ry of communism all over the world is mo ra l CI. Th is concept obviously reduces th e p ro - blems o f mo ra lit y t o th e requirements o f cu rre n t p o litica l tactics, although one could easily «prove» that once the given premises a re accepted, a ll the conclusions concerning morality, being syllogistically correct, a re rational. But, a re th e y reasonable ? The same manner o f reasoning could be applied to the lo - gically correct conclusions wh ich the Nazis d re w f ro m th e ir premises, n a me ly th a t th e good o f th e p u re German ra ce should be regarded as the highest criterion o f politics, la w, and morality. Ho w can these «rational» Na zi conclusions be refuted ? A r e logical, p o sitivistic methods sufficient ? Th e Nazi, Stalinist, a n d other inhumane ideologies ca n o n ly b e proved unreasonable b y expanding t h e concept o f reason beyond formal logic.

if one is not prepared to accept such a limitation to a monism o f values in the wo rld o f action and wo u ld re - ject such a reduction on the ground that the irreducibility of many values is the basis o f o u r freedom and o f o u r spiritual life; if one considers how justification takes place in the most varied spheres—in politics, morals, la w, the so cia l sciences, and, a b o ve a ll, i n philosophy—it seems obvious th a t o u r intellectual tools cannot a ll b e reduced to formal logic ( m ( ) . lod3oy Bolshevik, Nov . 1951, «Communis t moralit y serves the cause of the co3nstruction of communism...» p. 53; «The whole ideology of communism, inc)l uding c ommunis t moralit y , is s ubordinated t o t h e cause o f t he lib e - ratPion of the toilers.» p. 60. .( ingK3», p. 302. 04 L) 0C Nh 1a Ti Sm KP YE ,R «E CL oM mA mN u, n« iT sh te MN oe rw aR lh ie t yo ar ni dc R: eA lT ih ge io or uy so Mf oP r a lc it ti yc »a ,l MR oe -a s o n - AMERICAN JURISPRUDENCE 33

The Ne w Rhetoric does not eliminate formal logic, does not reject the value o f syllogisms concerning deduction and in - duction, b u t reserves a proper place fo r them in the to ta lity of human reasoning. The concept o f reasonable is inherently pluralistic; i t is incompatible w i l l a ll pretensions t o monism or totalitarianism. The distinction between th e «rational» a n d t h e «reasonable» is not new. I t has been discussed almost since the rise of modern rationalism. Both words, rational and reasonable, Perelman writes, d e rive fro m the same substantive; both connote a conformity to reason, b u t they are ra re ly interchangeable; one wo u ld ca ll a deduction wh ich conforms t o th e rules o f logic, rational, but not necessarily reasonable. A compromise thereof, h o w- ever, he stresses, may be called reasonable. Let no one forget: a rational decision ma y be unreasonable, and vice versa. For example: Perelman analyzes Godwin's famous a rg u - ment that there is no rationality in lo vin g one's o wn father more than other persons unless i t is possible t o prove tha t one's father is a better human being than other men. Perel- man comments th a t Godwin's th in kin g ma y b e lo g ica l and rational, b u t wh o wo u ld ca ll i t reasonable, o r humane ? This example and ma n y others lik e i t indicate th a t «the idea of reason is shown in at least two diametrically opposed ways» CI. This observation is one of the most important philosophical premises constituting the foundation of political, juridical, and moral pluralism: rationalism may lead to monism and absolutism; reasonableness—to a pluralistic vision o f the world. The rational ma y b e described a s wh a t «corresponds t o mathematical reason; f o r some i t is a reflection o f d ivin e reason, wh ich grasps necessary relations» ("). Th e ra tio n a l imposes its outlook on a ll reasoning beings because « it owes nothing to experience, o r to dialogue, and depends neither on education, n o r on the culture o f a milie u o r an epoch». I t is

( Oc3tober 1977 a t t h e O t t awa Conferenc e o n Rat ionalit y Today . 5(. ) Ibid. ) C h a i m P E R E L M A N , « T h e R a t i o n a l a n d t h e R e a s o n a b l e » , p r e s e n t e d i n 34 MIECZYSLAW MANED

«associated to self-evident truths» ("). According to Bertrand Russell «the rational man wo u ld o n ly be a n inhuman mon- ster» (). The ma n wh o trie s t o b e consistently rational separates reason f ro m h is o th e r human faculties. H e i s a one-sided being, functioning like a machine. The reasonable man, o n t h e o th e r hand, i s n o t a lwa ys «rational». H e is influenced b y «common sense», o r, «good sense», and endeavors t o d o wh a t is accepted b y h is o wn milieu, and if possible, b y all. He takes into account changing circumstances, th e evolution o f mankind, it s sensitivity, th e development o f morality, th e changing crite ria o f decency. For, «the reasonable of today is not the reasonable of yester- day ...» ("). With o u t such a broad concept of the reasonable, reason would be converted into a conservative fortress, in to an instrument o f ossification, rather than a means b y wh ich the obsolete is repudiated. Wh a t is reasonable changes a s mankind changes. A reasonable individual a t a n y time can live with in a variety o f groups, wit h many ideals and philosophies. He is prepared to live in a pluralistic world. What is rational can easily lead to biased, socially inadmis- sible conclusions; wh e n th is happens, Perelman write s, w e must reevaluate the whole system. I n law, he continues, the idea o f «the reasonable corresponds t o a n equitable so lu - tion» ( 4 In general, «reasonable» opposes the uncritical acceptance o1f. established reality; it promotes pluralistic change; the ra - tional pertains to stabilization. There is an amazing simila rity between Perelman's concept of the reasonable and C. Wrig h t Mills id e a of «crackpot realism». Mills uses th is expression in ma n y books and essays referring to the Eastern and Western rulers and their pseudo- intellectualism. Mills writes:

( 3( 73( )83( reaI)94s onable and the dialectic of justice and equity. bI)0 ibI) dibT .dih .de .r e i s , i n c i d e n t a l l y , a l s o a l i n k b e t w e e n t h e d i a l e c t i c o f t h e AMERICAN JURISPRUDENCE 35

In the American white-collar hierarchies and in the mid - dle levels o f the Soviet 'intelligentsia'—in quite d iffe r- ing wa ys b u t wit h often frightening convergence—there is coming about the rise of the crackpot realist. A ll these types embody a common ethos: rationality without reason ( 4 MiIlls accuses both wo rld ruling groups o f rationalizing the rules) .o f th e game leading t o world-catastrophies. T o cope with th e ir «unreason» t h e y appeal t o lo g ic a n d t o realism. According to them, to be a «utopian» means merely to acknow- ledge values other than those accepted b y the power-elites.

But in truth, are n o t those wh o in the name o f realism act like crackpots, a re th e y n o t the utopians ? A re we not now in a situation in which the only practical realist- ic down-to-earth thinking and acting is ju st wh a t these crackpot realists ca ll 'utopian' ? ( 4 2 Here) we approach ye t another meaning o f «unreasonable- ness»: it defends wh a t is possible and desirable; i t does not capitulate to «necessary reality». Rationalists accept reality as necessary, whereas the t ru ly reasonable ma n trie s t o o ve r- come wh a t has become obsolete o r otherwise undesirable. Limited realism, o r rather rationalism, serves today as the philosophical foundation o f modern, «mindless» conservat- ism (").

While the intellectuals have been embraced b y the n e w conservative g e n tility, t h e s ile n t conservatives h a v e assumed political power t h e s e men have replaced mind by the platitude s o wid e ly accepted that no counter-

( wit4z ( Ne w Y ork : O x f ord Univ ers it y Press, 1974), p . 393, 1( )(4 ideC42as, but the modern Western and Eastern conservatisms present themselves.2) as rat her rationalis tic s oc ial orders o r movements. W)I RTb Ihi Ged Hr. Te, Map Ir. Le4 Lc0 So1 ,n Ps oe wr ev ra ,t Pi os lm is tw ih ci sc &h Po ef of pi lc ei ,a el dl .y Ia r ve ib na gs Le od uo in si Hr or ra ot -i o n a l i s t i c 36 MIECZYSLAW MANED

balance of mind prevails against them. Such men as these are crackpot realists, who, in the name o f realism have constructed a paranoid reality ( 4 Mi1lls. argues that various sociological and political concepts are a modern «rationalism without reasonableness». They jus- tify the social status quo and conservative mindlessness which are a p rio ri inimical to any innovation, to democratic pluralism. Mo d e rn rationalism tends t o wa rd u n ifo rmity, t o wa rd Gleichschaltung, whereas the reasonable opposes uniformity, undermines any form of absolute order, and recommends pluralism in every sphere o f life, in the material and the spiritual, the economic and the political. The Ne w Rhetoric, as applied to mo ra lity and politics, re - presents the vie w that one can and should find a reasonable basis f o r ju stifyin g th e norms o f behavior and o f p o litica l norms ( 4it 5is impossible to demonstrate that one set o f moral rules is )to. be prefered o ve r another. Th e Ne w Rhetoric asserts tha t Mif loagicians dismiss the mere possibility o f preferences based non yrea son i n th e sphere o f th e «ought» (So lien) th e n « we pmusth enlarge the domain of the logicians' investigations. This ienllaorgement would complete fo rma l logic through th e study sof owhat since Socrates has been called dialectics I prefer pto qhu a lify i t as argumentation, a n d contrast i t wit h fo rma l elogric conceived as the theory of demonstrative proof» ("). s O ne should n e ve r overlook th e fa ct th a t a fte r a ll mo ra l sprinciples a re formulated because t h e re a r e reasons f o r iformulating them. I n this case one can argue whether th e y nshould be adopted at all, and if so, how they should be applied cto given situations and controversies. e H ( uter4istics t o t he c ommunis t and c apitalis t «realists» and rationalists. 4( man)4d t he Problem o f Values, Entretiens d'Ams terdam de l'Ins titut Interna- etioC5nal d e Philosophie, Th e Hague, 1972, pp. 48-49 (Englis h trans lation b y hW..) K luback). a WC( v Rh4 Ia6 e Gi) a HmI r TPb g MEi u IRd . e LE L, d SMp t ,A. h ON4 a .,8 t c«. iL fa .j ,u ps pt .i 6f 0i 3c -a 6t 1i 0o .n Md ie ls ln so r em fe es r» s, ti hn eH su am ma en cS hc ai re an c -e s AMERICAN JURISPRUDENCE 37

Positivists assimilate t h e justification o f n o rms in t o t h e logical demonstration o f propositions. Th e question o f tru th in o u r behavior (its principles) i s meaningless, because o u r actions and decisions cannot be «true». They can be described as expedient, reasonable, equitable, thoughtful, conforming to moral norms o r legal provisions. Ou r decisions and actions are of course based on information concerning facts. The in - formation may be true or false, and truthfulness o r falsity may influence our decisions and behavior ( 4 1The Ne w Rhetoric is not a th e o ry o f pure contemplation; )it. is a theory of argumentation for practical purposes in order to find a wa y to make the most reasonable, efficient, and just decisions wh ich might gain the maximum support of a public divided b y various controversies. I t is a theory wh ich con- sciously helps t o ma ke practical b u t reasonable decisions, directly aiming at action.

Dialogue is the fo rm and the soul o f the process o f argumentation. Fro m the rhetorical viewpoint, discourses i n th e courts are a form of dialogue which is also one of the philosophical bases o f American ju rid ica l theory and practice. The f irst precondition f o r the existence o f dialogue is a n interest o f at least two participants in an exchange o f ideas and in gaining the adherence o f intellects. A second precondition f o r t h e existence o f dialogue i s freedom f o r the participants. Th e interlocutor should not be afraid to raise questions and use counterarguments. One cannot gain the adherence of minds of those who fear o r hesitate actively to participate in the dialogue. Every speaker (write r) kn o ws h is audience mo re o r less, knows the public he wants to address. «We consider it preferable to define a n audience, f o r the purposes o f rhetoric, a s t h e ensemble o f those wh o m t h e

( a l ) I b i d . , p . 4 9 . 38 MIECZYSLAW MANELI speaker wishes to influence b y his argumentation» Cll. The concept of the audience is ve ry important in the struc- ture of the New Rhetoric. At time s o n e trie s t o persuade o n e individual, a t o th e r times, whole social groups. A speaker should kn ow what distinguishes o n e social environment f ro m another. H e should know «the social functions exercised b y its listeners» ("). The speaker (writer) should always be aware that his audience is changing a ll the time, therefore the t ru ly great orator must know the a rt o f «continuous adaptation» ( 5like Demosthenes, does n o t identify «adaptation» wit h a re - 1du. ctiBon uo f trh etoPrice tor thee llevmel ao f nme,re «flattery». Th e Ne w Rhetoric is not the art of hypocrisy:

it must n o t be overlooked that the orator is n e a rly always at liberty to give up persuading an audience when he cannot persuade i t effectively except b y the use o f methods th a t a re repugnant t o h im. I t should n o t b e thought, where argument is concerned, that it is always honorable to succeed in persuasion, o r even to have such an intention ( 5 1 We). have approached wh a t the Ne w Rhetoric is not. I t is not the a rt o f using immo ra l means f o r immo ra l ends. I t is not the a rt o f employing questionable methods t o achieve a goal. Only perverted forms o f the Ne w Rhetoric can be used b y despotic, o r totalitarian rulers because the theory presupposes a dialogue wit h th e public wh ich cannot o ccu r under des- potism; such a dialogue is required because Perelman believes that an active audience will sooner o r later be able to detect deliberate lies and misrepresentations, thereby correcting e r- ror.

( on4 Argumentation, Not re Dame Univ ers ity Press, 1969., p. 19. 8( )4( C5( h)95 aI1 ib) miI Pdb E.i R,d Ep. L., M2p A13. N.2 a5 n. d L . O L B R E C H T S - T Y T E C A , T h e N e w R h e t o r i c , T r e a t i s e AMERICAN JURISPRUDENCE 39

When argumentation fails to achieve its desired effect, that still does n o t mean its premises were completely wrong, u n - just, o r unfounded. Arguments can be rejected by an audience for various reasons, but in a free exchange of arguments lies can sooner be brought to light than under many other circumstances. The Ne w Rhetoric does not take anything fo r granted. An d Perelman's struggle against a ll the open o r hidden vestiges of the theory o f Descartes that tru th is wh a t « I see cle a rly and distinctly» became the most important battle of new and consistent intellectualism against the alleged intellectualiza- tion of the twentieth century. In the twentieth century common sense has ceased to be such a n effective weapon against t h e n e w a tta ck co min g from the Hobbesian new Kingdom o f Darkness ,because this new Kingdom presents itself at first as a realm o f logic and reason. Rationality is used against Reason. Reason therefore must b e strengthened b y the n e w th e o ry o f argumentation and the reasonable solutions must be pluralistic. The N e w Rhetoric i s a wa re th a t ma n y people t a ke f o r granted as obvious and rational what really needs to be proved. Th e y accept o ld concepts although circumstances h a ve changed radically. Formal logic does not question its premises, wh ile the Ne w Rhetoric, on the other hand, is critica l o f everything. I t does not take anything for granted, it does not accept without question anything that was established in the past; i t rejects a ll explicit o r imp licit assumptions, premises, a n d propositions, compelling people to cut the roots o f common-sense itself, to the facts, and truths themselves. From the standpoint o f the theory o f argumentation, facts designate what has been agreed upon b y a given audience as incontrovertible (1. But a fact can cease to be a fact either because doubts h a ve been raised about i t among t h e g ive n public o r because th e original public has expanded and the

( 5 2 ) I b i d . , p . 6 7 . 40 MIECZYSLAW MANELI new members have come to question what was fo r others un- contestable ( u Does t h is imp ly th a t «facts» a re completely subjective ? )T.he problem is that rhetorical debate does n o t concern the narrow problems of the natural sciences where an experiment can be repeated in order to dispel all doubts. I t is not possible to find a n ultimate criterion to support a political party, f o r example, which could affirm something to be a fact independ- dently o f a listener's attitude ("). A fa ct with o u t the p o we r of argumentation behind it cannot survive b y itself in a wo rld of dissenters. A fa ct does n o t possess it s o wn vita lity, it s power to survive autonomously. A ll these observations concerning «facts» a p p ly to «truth», albeit in a more complex way ( 5 5Rhetorical argumentation never discontinues; it is like Hera- )c.litus' rive r: yo u cannot step into the same rive r twice. A n d truth, although ever-changing, s t ill remains something ta n - gible and applicable, because it is continuously questioned in the endless dialogue o f unlimited audiences. Heraclitus o b - served: «Opposition is good e v e r y t h i n g originates in strife hidden harmony is better than apparent harmony» (5.). Rhetoric is an instrument fo r establishing the true, hidden connections wh ich lie under the surface. Rhetoric always re - minds u s that the best emerges «out o f differents» ("). Are we condamned to eternal doubt and unrest ? «In changing, i t rests « a n d that «which tends t o destruction i s called concord and peace» ( 5telian wells o f rhetoric. They a ll determine the intrinsic lin k ) . S u c h i s o ( n e 5( o 35( f Ft ro)45 m t hhe s tandepoint o f argumentation, i t is a relat iv e difference. « Th e tperI)5m r'fac tes ' i s- generally us ed t o des ignate objec ts o f prec is e, limit e d AagbI)re ermenti, whsereats thoe ter-m 'truth' is preferably applied t o more c omplex sysibI tems relat ing t o connections between facts.» dib( Ea.di5rly G reek Philos ophy ( N e w Y o rk : Applet on-Cent ury Crofts , 1964). ,.d6( p,.)(5 p,H57 .pE8) 6pR)I 78.AIb -.6Cbi 68Lid 8-1d. .6T, 9U,p .Sp W,.4 h«86 aF3. tr. ia sg tm he en dt is f» f4 e6 r, e4 n7 c, ei bn eM ti wl et eo n fC a. cN ta sh am n, dS te rl ue tc ht si ?o n s f r o m AMERICAN JURISPRUDENCE 41 between the Ne w Rhetoric and democratic pluralism: th e re is nothing perfect, no order can pretend to exclusive unique- ness, no social group or party can have a monopoly on absolute wisdom or knowledge. The Ne w Rhetoric constitutes a philosophical and methodological basis f o r th e democratic concept o f pluralism. A n d vice versa: p lu ra lism leads t o th e th e o ry o f argumentation and needs it fo r its o wn existence. Theory and methodology are inseparable f ro m it . These general methodological a n d philosophical considerations have th e ir direct impact o n the philosophy of law.

There is one common point of departure between the Ne w Rhetoric and American jurisprudence as characterized, p a rt- cularly, b y the three titans: Holmes, Pound, and Cardozo. The Ne w Rhetoric accepts the same point o f departure in jurisprudence a s th a t expressed b y Benjamin N . Cardozo: »The reconciliation o f the irreconcilable, the merger o f antitheses, the synthesis o f opposites ,these are the problems o f the law» ("). The Ne w Rhetoric regards the la w as a set of rules wh ich are not dogmas, b u t are useful as a ve ry specific technique for the resolution o f the conflicting interests between in d ivi- duals, social groups, and society (the state) as a whole. The New Rhetoric, while agreeing with Cardozo that the problems of la w are «the reconciliation of the irreconcilable» and «the merger o f antitheses», supplies th e philosophy and practice of la w wit h additional instruments and concepts. In the New Rhetoric one reads:

This e ffo rt t o resolve incompatibilities is ca rrie d o n a t every level of legal activity. I t is pursued b y the legisla-

( Co5lumbia Univ ers ity Press, 1928), p. 4. 9 ) B e n j a m i n N . C A R D O Z O , T h e P a r a d o x e s o f L e g a l S c i e n c e ( N e w Y o r k : 42 MIECZYSLAW MANELI

tor, the legal theorist, and the judge. Wh e n a judge en- counters a ju rid ica l antinomy h e w i l l introduce d is- tinctions f o r th e purpose o f reconciling wh a t, wit h o u t them, wo u ld b e irreconcilable T h e s e riv a l solutions may themselves also appear as incompatible (").

The Ne w Rhetoric represents the idea, as American ju ris- prudence does, th a t incompatibilities i n th e sphere o f la w, its interpretation, a n d applications, a re inevitable because they result from the development o f life. Eve ry resolution o f incompatibilities creates a new chain of opposites, and a new demand f o r a n e w compromise. Fro m the intellectual vie w- point a compromise is n o t an easy result to achieve: o n the contrary, i t is compromise wh ich calls f o r the greatest intellectual effort ( r6easonable, «peaceful» solution. 1 .W hIattev er Perelman wro te concerning the id o la try o f the iexpressions «clear» is in one o r another wa y connected wit h lthe efamsouss ex pression o f Justice Holmes about «a clear and dimmiinef ntf dainger» (" c2 Wuhalt ist c le a r i n one situation mig h t n o t necessarily b e ct).lear in another set of circumstances. «Clarity» should not be tohe beginn ing o f the interpretation and application o f la w, butf ratiher the end. g Holmhes once observed, as we have already mentioned, that tthe tra in in g o f la wye rs is a d ra in in g i n logic» ("); o n th e othert hand he argued that the life o f the la w has n o t been lhogic, it has been experience: a n The f elt necessities o f the time, the prevalent moral and t political theories; intentions o f public p o licy avowed o r o unconsciou s, e ve n t h e prejudices wh ic h judges sh a re f i ( 414-415. n 6 (0 d (6) a 61C( p. 13)h6 70. )ia3 Abi) bimH rdPa a.Er m,Rv spEa v.Lr .4Md U1AL .5N. S.aR .nE ,dV 2L, 5.« 0OT ULh .Be SRP .Ea 6Ct 1Hh 6To (Sf 1-t 9Th 1Ye 9TL )Ea .Cw A, ,» Ti hn eC No el wl Re hc et te od rL ie cg ,a pl pP .a p e r s , AMERICAN JURISPRUDENCE 43

with their fellow men, have had a good deal more to do than syllogisms in determining the rules b y wh ich men should be governed (").

Are these two statements made b y Holmes concerning the place o f logic and experience in the sphere o f la w incompatible? No t fro m the point o f v ie w o f the Ne w Rhetoric. I t is The Ne w Rhetoric wh ich shows a wa y to reconcile logic and experience in the endless process o f argumentation. The- re is no use of the logical syllogism «proving» that the given meanings of the legal provisions are the only ones which are logical and should be respected. I f the people do not want to abide by them, then only terror can impose and enforce them. Such an imposition will not be reasonable. Taking into account the persuasions a n d t h e feeling o f t h e people, Perelman's theory of argumentation serves as an instrument proving that alleged lo g ica l interpretations ca n indeed b e unreasonable, that formal logic pushed to its extremes, becomes a monstro- sity. This observation leads u s t o th e dispute wh ich has been going on fo r over a century: does legal logic, as it has been known traditionally, a ctu a lly e xist ? Perelman argues t h a t when jurists use the basic Aristotelian schemas ,there is as little basis for speaking of legal logic as there is fo r speaking of «zoological» o r «astronomical» logic, fo r the simple reason that there is o n ly one logic at wo rk in a ll domains. We ju st reject as inadequate d e formalisme juridique», o r th e «Be- griffsjurisprudenz» o r other attempts t o ma ke fo rma l lo g ic «the heart of law». The real problem lies in whether logic reduced to formal logic allows one to resolve ju rid ica l controversies. Perelman replies:

Certainly not. I t i s exceptional th a t t h e controversies come about f ro m th e fa ct th a t o n e o f th e antagonists commits an error of formal logic. It would suffice to show him t h e e rro r so t h a t h e m a y re tra ct i t , l i k e e v e ry

( M ) H O L M E S « T h e C o m m o n L a w ( 1 8 8 0 » i n T h e H o l m e s R e a d e r , p . 2 0 9 . 44 MIECZYSLAW MANELI

normal person who has been shown his mistake in addi- tion (").

Formal lo g ic should continue t o b e used, b u t everybody using it ought to realize that it is only one of the intellectual instruments and is n o t alone sufficient t o reach the goal o f interpretation and application of the law, which is justice and equity. « Th e opposition between le t t e r a n d s p irit i s t h e stumbling b lo ck o f mechanical jurisprudence» ("), Perelman writes. Even the strict observation o f the letter o f the law, based on formal logic only, is impossible. Ho w would it be possible even to observe the first pre-condition o f the application o f formal logic, the demand that the same signs always preserve the same meanings. Wit h o u t th is precondition, t h e l a w o f identity ceases t o be valid, and as a result, f o r example, a contradiction would no longer be false. There are situations in wh ich the court o r the authorities must fin d solutions t o particular problems although the la w has n o t foreseen such situations. Fo rma listic ju rid ica l a n d formalistic logical syllogisms w i l l be o f no practical help in solving such problems. O n e mu st then se e k o th e r means, which Aristotle specified as dialectical reasoning, and Perel- man characterizes «as a recourse to argumentation» ("). A judge o r anyone wh o applies legal rules is n o t o n ly a mouthpiece for the law, o r a preprogrammed computer. He is also a social being who confronts various values pertaining to the given legal and social system and h e must serve these values and understand th e ir hierarchy o f importance. E ve ry decision rendered b y a judge, even one based upon e xp licit legal material, nevertheless remains personal ("). Th is le g a l reasoning bears h is personal imprint. Th is decision is n o t a

( Be6iheft 7, 1972, p. 2 (Englis h Trans lation b y W. Kluback). 5( )0( «(0 L6)7 e8I) r)bI aIib ibd si.d od,. n.p n,. ep4 m. e7 n. t j u r i d i q u e » , i n D i e J u r i s t i s c h e A r g u m e n t a t i o n , A R S P , AMERICAN JURISPRUDENCE 45 formal demonstration, b u t a n argument a imin g t o persuade those whom it addresses. The underpinning of a judge's decision is essentially legal, yet it is intertwined wit h other «good» reasons, moral, p o li- tical, economic, and even religious. Th e underpinnings considered good at one period and in one milie u will not be considered the same in another. They are «socially and cultural- ly conditioned as are the convictions and aspirations o f the audience they must convince» (1. According to Perelman every application of la w is creative and e ve ry time legal norms are applied, some interpretation is required. Th e famous ru le : interpretatio cessat i n cla ris (interpretation is unnecessary when th e te xt is clear), does not make much sense, because in order

to decide that a text is clear we must see if any reasonable interpretation of it that could be given would lead to a simila r solution fo r a ll other individual cases. B u t we are n e ve r sure t h a t a ll concrete situations h a ve been examined. A text considered in relation to kn o wn cases could pose a problem o f interpretation in a n e w situation (").

The introduction o f the th e o ry o f argumentation t o legal reasoning is necessary because mere legal reasoning is charg- ed with the tension between the propensity to conciliate sta- b ility wit h change, continuity wit h adaptation, security wit h justice, e q u ity wit h th e common good. Th e special esteem which legal security enjoys in legal reasoning distinguishes it fro m other practical reasoning. Legal philosophy, and legal practice, therefore, u su a lly t ry t o min imize th e ro le o f th e personal will and accidental perceptions.

But the personal factor cannot be eliminated fro m legal reasoning. L ike a ll argumentation, being the function o f

( 6( 97 )0 I) bI ib di .d ,. p, .p 9p . 1 0 . 46 MIECZYSLAW MANELI

the people who argue, its value will depend, in the final analysis, upon the integrity and intelligence of the judges who determine its specific nature ( 7 Th1is. aspect should be borne in mind even when assessing the role of the judicial power ,which under any constitutional system o f division o f powers cannot be subordinated to the legislative p o we r entirely. I f i t we re subordinated, then, a s Perelman observes, the judge's ro le wo u ld be limite d to the establishment o f facts, subsumption under a legal text, a n d the drawing o f the conclusion in the fo rm o f a syllogism ( 7But this wo u ld constitute n o t the ru le o f la w, b u t th e ru le 1of. the letter of the la w (if this were indeed possible) o ve r the spirit of the law, as already mentioned. Since Wo rld Wa r II, the judge's power over the interpretation a n d application o f l a w has ste a d ily been g ro win g i n Western European countries ( 7between3 the Continental and the Anglo-Saxon ju d icia l sys- )te. m sI hnas betguhn, iansd i s st ill in progress ( wp7ropoase a y gen eral conclusion, th at the methodological basis aIfor t h e ra pprochement between t h e Anglo-Saxon a n d t h e r)C.o natIinep ntwapl juorrisuporuldcednhc e and the practice of la w is the wide elaccemi ptakence neo f th e theotry of aorgumentation and its pluralistic attitude. Jurists use th is methodology and theory, although, like Molière's hero, Mr. Jourdain, they do not know that they are using it . Jurists subscribe mo re and mo re t o th e v ie w that:

In a political community o r before a court we ma y have to choose between several equally reasonable eventuali- ties; the criterion fo r the decision can be recognized b y everyone as involving opportune considerations, but this

( (79 PERELMAN, «Droit e t rhétorique», i n Festschrift Th. VIERWEG ( in t h e pre'ss), (English trans lation by W. Kluback). )( I7( b37 i)4 dI) .bI ,ib pdi .d 1. 3 . AMERICAN JURISPRUDENCE 47

does not in the least imp ly that the solution that has been put aside is unreasonable CI.

Once the restrictions o f formal logic wit h its demands f o r achieving a uniform interpretation and application of the given rules o f la w have been overcome, th e specifics o f dialogue enter upon the scene. Wh a t is reasonable and equitable ma y openly b e explored. Pluralistic attitudes have gained e n t ry into the courts.

VII

Let u s consider t h e fo llo win g reversals i n decisions o f American courts during the last century. In 1907 the Court found that a statute forbidding women to work a t night was a rb itra ry and unconstitutional (People v. Williams, 189 N Y 131). Eight years la te r a like statute wa s found to be reasonable (People v. Schweinler Press, 214 N Y 395). At the turn of the nineteenth and twentieth centuries a sys- tematic «Jim Crow Code» was elaborated sanctioning all sorts of humiliating treatment f o r b la ck people, in clu d in g segre- gation. These legal rules and practices we re documented in the decision, Plessy v. Ferguson (163 US 537, 1896). Justice John Marshall Harlan was the o n ly one wh o denounced the «separate but equal» doctrine. He used the n o w famous e x- pression that the U.S. Constitution is «color-blind». Sixty years later the prophetic arguments of Justice Harlan were t o become th e o fficia l mo ra l a n d le g a l standards i n this country. In the Brown v. Board of Education decision (347 US 483, 1954), th e Plessy doctrine wa s overturned, a t least within the domain of education. In 1940 the Supreme Court ruled that the State authorities had th e rig h t t o compel school children t o salute th e fla g

( W.7 Kluback). 5 ) P E R E L M A N , « D é s a c c o r d e t r a t i o n a l i t é » , p . 1 6 7 ( E n g l i s h t r a n s l a t i o n b y 48 MIECZYSLAW MANELI

(Minersville School District v. Gobitis, 310 US 586) i n order to fo ste r patriotism. Justice Ha rla n Fiske Stone dissented. Only two years elapsed before the Court reversed itself and found that no compulsion in such matters is permitted (West Virginia State Board o f Education v. Barnette, (319 US 624, 1943). The number of such examples could be increased substan- tially. If interpreted from the viewpoint of the logic o f syllogisms and the Cartesian philosophy these contradictory co u rt d e - cisions could be regarded as proof that the court was wro n g at least once in each instance ,perhaps twice . But once we accept that legal norms do not contain absolute truth wh ich must be discovered and stated once and for all, we are obliged to change our attitude, our system of thought and o u r understanding o f values. Once we connect the results o f the interpretation a n d application o f la w wit h social values wh ic h inevitably change, there arises a n e w pluralistic possibility for reasonable interpretation. In this respect the remarks made b y Roscoe Pound are important: «Perhaps the most significant advance in the modern science of la w is the change fro m the analytical to the func- tional attitude» ( 7 The emphasis has changed from «the content of the precept ine ) a. ction and the a va ila b ility and efficiency o f the re me d y to attain the ends fo r wh ich the precept was devised» 77 ). Cardozo makes th is idea even mo re specific i n h is co m- ments:

Courts k n o w today that statutes are t o be viewed, n o t in isolation or in vacuums, as pronouncements of abstract principles f o r the guidance o f a n ideal community, b u t in the setting and the framework o f present-day condi-

(") Rosco2 POUND, (

tions, as revealed b y the labors o f economists and stu- dents of the social sciences in our own country and abro- ad (").

What does he mean b y Present-day conditions ? Th e y are not definitively described; they consist o f various, contradictory, social relations and ideas. There are ideas wh ich tend to conserve existing social and legal relations and there are others wh ich deny th e ir necessity o r justifiability. «Present- day conditions» can include various concepts of morality, justice, and even equality and fairness. Th e differences spring from the variety of the social and moral conditions in wh ich people live, from the variety of their educational, ethical, and religious backgrounds, from the variety of their understanding and emotions. Dissenters should n o t b e condemned a s u n - reasonable. These problems we re assessed b y John Dewey mo re than by anyone else in a general philosophical form. I n his essay, «Nature and Reason in Law», De we y writes that there is n o foundation for adherence to a kind of epistemological realism in politics and jurisprudence b y which human reason is «con- fined to discovering what antecedently exists» ( 7nied9 the right to use the creativity o f one's o wn intelligence )when. O onne me us t reistrisct on e's dthinkeing -to the discovery of the «Order o f Nature» o r «Higher Reason», instead o f acting f o r the sake of good consequences.

we f in d t h a t th e ch ie f wo rkin g difference between moral philosophies i n t h e ir application t o l a w i s t h a t some of them seek fo r an antecedent principle b y which to decide; wh ile others recommend the consideration o f the specific consequences that f lo w f ro m treating a specific situation t h is w a y o r that, u sin g t h e antecedent

( p. 871. 8( & C)7 ompany, 1931), P. 168. B9 e) nJ jo ah mn iD nE NW .E CY A, RP Dh Oi Zl Oo ,s «o Tp h ey Na an td uC ri ev oi fl ti hz ea Jt ui do in c( iN ae lw PY ro or ck e: sM si »n ot po .n c, iB ta .l ,c h 50 MIECZYSLAW MANELI

material and rules as guides o f intellectual analysis b u t not as norms of decision (").

In this wa y Dewey approached the threshold o f the theory of argumentation and pluralism as applied to jurisprudence in particular. The result of the above analysis can be summarized in the following way:

— one should discriminate between th e notions o f reasonable and rational; — without th e rhetorical concept o f audience there wo u ld be no sensible grounds f o r mo ra l and ju rid ica l norms; one should reject the excessive demands of Descartes' philosophy a n d o f fo rma l lo g ic a s t h e so le instrument o f reason; one should expand the methods o f scholarly in q u iry b y the deliberate introduction and use o f the theory of argumentation and th e philosophy o f pluralism. Plu ra lism is the point of departure and the result of rhetorical methodology in any social science, including jurisprudence. The American theory o f la w, the creative American ju rid ica l practice, encompassing mo re spheres o f lif e th a n ju ris- prudence in any other country, and the revived rhetorical reasoning have become inseparable.

Queen's College, CUNY Mieczyslaw Maneli

8 1 I b i d . , p . 1 7 2 .