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The New Theory of Argumentation and American Jurisprudence

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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 call- ed 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 jurispru- dence. 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 «mani- festly 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 sen- se» 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 accept- ed 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 mathema- tical 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 mathema- tical 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 man- kind, 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 cer- tain 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.
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