NORTHERN KENTUCKY LAW REVIEW Volume 12 1985 Number 3 SYMPOSIUM: A TRIBUTE TO CHAIM PERELMAN CHAIM PERELMAN AND THE NEW RHETORIC W . Jack Grosse ...................................... ARTICLES PERELMAN'S CONTRIBUTION TO LEGAL METHODOLOGY Edgar Bodenheimer ................................... 391 JURIDICAL SCIENCE PARADIGMS AS NEWER RHETORICS IN 21ST CENTURY JURISPRUDENCE D avid A . F unk ....................................... 419 LEGAL REASONING AS ARGUMENTATION Donald H. J. Hermann ............................... 467 PROFESSOR PERELMAN AND AUTHORITY W illiam L. M cBride ..... ............................ 511 JURISTS, JUDGES AND VALID LAW E nrico P attaro....................................... 519 THE WAY OF A JUDGE WITH A PRINCIPLE -A TRIBUTE TO PROFESSOR CHAIM PERELMAN Julius S tone ......................................... 537 CONFUSED NOTIONS AND CONSTITUTIONAL THEORY John T. Valauri ...................................... 567 The Editors Dedicate this Issue to the Memory of Chaim Perelman. DEDICATION CHAIM PERELMAN AND THE NEW RHETORIC Rhetoric has been defined as "the art of using words impressively, especially in public speaking; impressive language,"' as "the art or science of using words effectively in speaking or writing"2 as "the faculty of discovering in every case the available means of persuasion, ' and as "a theory of argumentation."' While there are numerous other definitions of the word, these listed span a thousand years of "confusion" and illustrate the very point Pro- fessor Chaim Perelman made throughout the many years he devoted to the fields of philosophy and law -"rhetoric (as well as philosophy) is a confused idea."5 Chaim Perelman, in many respects a giant in the field of philosophy, also devoted his efforts to the field of law. Of course, there are interfaces between the two fields and while he was interested in law, this interest manisfested itself primarily in the sub-category of the philosophy of law-jurisprudence. He served as visiting professor at several law schools" and devoted his efforts while at these schools to Jurisprudence.7 Chaim Perelman was born in Warsaw, Poland in 1912 and relocated in Belgium in 1925. He attended high school in Belgium and obtained both the J.D. and Ph.D. degrees at the Free Univer- sity of Brussels.8 He accepted an appointment at the Free Univer- sity of Brussels in 1939 and remained there as Professor of Logic, Ethics and Metaphysics until his formal retirement in 1978. 1. THE OXFORD DICTIONARY 581 (1980). 2. WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE, 1220 (2d ed. 1972). 3. THE RHETORIC OF ARISTOTLE: A TRANSLATION (1909). 4. C. PERELMAN & L. OLBRECHTS-TYTECA, THE NEW RHETORIC: A TREATISE ON ARGUMENTION (1969). 5. Perelman also taught that philosophy was a study of confused ideas. 6. He visited at the law schools of the University of Pennsylvania, State University of New York at Buffalo (Stoney Brook), University of McGill (Montreal, Canada), University of Jerusalem, (Israel), University of Sydney, (Australia) and the Salmon P. Chase College of Law, Northern Kentucky University. 7. In most of these visitorships Professor Perelman performed double duty. Often he was available at his host university for lectures, seminars, and informal meetings and discourse with faculty members and students in philosophy departments and communica- tions departments. 8. Perelman received his J.D. degree in 1934 and Ph.D. degree in 1938. During Germany's World War II occupation of Belgium, Perelman was an active member of the underground with significant experiences, many of which were life threatening. After the war, Perelman resumed his professorship at the university and proceeded to research, study, and write in the fields of philosophy and law. "When faced with the challenge of writing a book on Justice at the end of World War II, I saw the limitation of formal reasoning, as articulated by Gottlieb Frege -the father of modern logic-as a means of discussing values."9 At the time this book was published"0 Perelman stated in his remembrance of the event, "I was completely ignorant of the importance of rhetoric."" Shortly thereafter Perelman developed a keen interest in rhetoric and his research resulted in his first publication on the subject.12 Constant study and thinking about the topic of rhetoric and almost ten years of research resulted in the publication of the book that establish- ed his reputation in the field of philosophy more firmly than any of his prior efforts." Between 1945 and 1980 Perelman published numerous books and articles both on the topic of rhetoric and in the field of law. 4 Finally in 1982 Perelman published his last book, The Realm of Rhetoric.5 9. An address delivered by Chaim Perelman at Ohio State University, November 16, 1982 as reported in J. GOLDEN, G. BERQUIST & W. COLEMAN, THE RHETORIC OF WESTERN THOUGHT (3rd ed. 1978). 10. C. PERELMAN, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT (1945). 11. C. PERELMAN & L. OLBRECHTS-TYTECA, THE NEW RHETORIC: A TREATISE ON ARGUMEN. TATION (1969). 12. C. PERELMAN, RHETORIC AND PHILOSOPHY (Trans. in Italian) (1952). 13. C. PERELMAN, THE NEW RHETORIC (1958). 14. Perelman listed in a curriculum vita the following titles and dates: RHETORIC AND PHILOSOPHY (Trans. in Italian) (1952). JUSTICE AND REASON (2d ed. Trans. in German and English) (1972). ARGUMENTATION (3d ed. Trans. in English and Italian) (1976). THE FIELD OF ARGUMENTATION (1970). LAW. ETHICS AND PHILOSOPHY (2nd ed. 1976). JUDICIAL LOGIC (Trans. in German, Dutch, Spanish and Italian) (1976). THE REALM OF RHETORIC (Trans. in Dutch, German, and Japanese) (1977). AN HISTORICAL INTRODUCTION TO MORAL PHILOSOPHY (1980). THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT (1963). AN HISTORICAL INTRODUCTION TO PHILOSOPHICAL THINKING (1967). JUSTICE (1967). THE NEW RHETORIC, A TREATISE ON ARGUMENTATION (1969). THE NEW RHETORIC AND THE HUMANITIES (1977). JUSTICE, LAW, AND ARGUMENT (1980). THE REALM OF RHETORIC (1982). More than 200 papers. 15. C. PERELMAN, THE REALM OF RHETORIC (1982) [hereinafter cited as REALM]. Throughout his career in teaching, research, and publication, Pro- fessor Perelman maintained his primary level of interest in the topic of rhetoric. He applied the principles and definitions that he developed to other fields, the primary one being law. He eventually developed his ideas in the field of rhetoric to such a level of sophistication that he was the primary advocate among a small group of researchers of a new view on the subject of rhetoric, called "The New Rhetoric." His construction of this new rhetoric began with a thorough historical examination of the topics stemming from the classical Greek period and extending through the Middle Ages to the modern period. In order to fully understand his contribu- tion to argumentation it is helpful to trace his thought processes from his early years. In the classical Greek period Plato distinguished false rhetoric and true rhetoric. In that day rhetoric was defined as "the art of persuading an ignorant multitude about the justice or injustice of a matter without imparting any real instruction."16 In short rhetoric, as practiced and preceived, was an art involving style, appearance, deception, and salesmanship rather than a vehicle for conveying truth. ]:n order to change this definition, Plato distinguished between false rhetoric and true rhetoric. The former was the then current definition and the latter Plato established by distinguishing true rhetoric as a part of philosophy. Plato's characterization included the following approach: Methodology of dialetic is: a. It is the art of asking questions and providing answers for the questions. b. It is "the art of dialogue." c. Dialectic seeks to clear the mind of common sense ideas in order to achieve purity of thought. d. Philosophical rhetoric as opposed to dialectic is based on truths and has the power to sway gods. Rhetoric has as its purpose to communicate the truths developed by philosophy: a. It is designed only for those who know the truth and wish to communicate it to others. b. Although it can communicate what is known it cannot engage in the art of discovery or of invention. 7 16. J. GOLDEN. G. BERQUIST & W. COLEMAN, THE RHETORIC OF WESTERN THOUGHT (3rd ed. 1978). 17. Id. at 428. In effect, Plato considered rhetoric to be a part of philosophy, that is, the discovery and communication of truth. Aristotle distinguished two types of reasoning- analytic and dialectic. The approach taken in analytics was to establish forms of valid inference and specifically the syllogism. 8 In the dialectic, Aristotle states that dialectical reasoning presupposes premises which are constituted by generally accepted opinions.19 The purpose of dialectic is to persuade or convince the person to whom it is directed.' The practical distinction between analytical reasoning and dialectical argument is. that the former deals with truth and the latter with justifiable opinion. 1 Aristotle further opposed rhetoric to dialectic by stating that dialectic is concerned with arguments used in a controversy or discussion, while rhetoric concerns the orator's technique in addressing a crowd gathered in a public square-a group of people who lack both specialized knowledge and the ability to follow a lengthy claim or argument." When viewing the period extending from Aristotle to the end of the 19th Century, it is difficult to find any scholars who appreciate Aristotle's formulation. For the most part rhetoric was thought to be merely a vehicle to communicate ideas and