Rhetoric and the Argumentation Theory
Rhetoric as the general theory of argumentation is not left powerless. On the other hand, it does not reach for more than man is capable of. The point is in the attempt to overcome randomness and create a model for the way in which rational argumentation can function in the world of values, morality and law without bringing forth results that can be deemed objectively “true”.
Defending the rational model of discourse might be called poor and meaningless idealism but, in the end, it is the kind of idealism necessary for human intercourse. It does not give any substantial standards to legal or other social praxis but it is still powerful due to its principles that identify the criteria of a “good reasoning”. There is no other way but rational reasoning to surpass the occasional conflicts in everyday life. The ideal model - and only it - helps to draw up directions, or landmarks, for those who are ready to stand against the irrationality of everyday life.
Perelman’s new rhetoric cannot change the world any more than the theory of argumentation. People are as cruel from generation to generation and their ears remain deaf to the call of rationality. But Chaim Perelman has lit a beacon for those who still have a conscience to listen to the sound of reason in a world of irrationality, to let arguments speak at the expense of emotions and prejudices.
The new rhetoric was a significant turning point in legal theory. With its help, a break away from the positivistic separation thesis could be achieved. In this sense, the new rhetoric prepared the ground for the hermeneutic approach. On the other hand, it should not be maintained that either the new rhetoric or hermeneutics offer precise guidance for legal argumentation. They are not methods in the actual sense of the word, even though hermeneutics implicitly contains notions of how texts have to be (should be) interpreted.
Tomasz Gizbert-Studnici has made an important contribution to this matter when stating that even though hermeneutics is normative in a hidden way, it is primarily a background philosophy for argumentation (or interpretation), giving answers to what interpretation is (Gizbert-Studnicki 1988, 158).It has become the task of the modern theory of argumentation to repair the “methodological deficits” of the new rhetoric. This is because Perelman himself does not give an answer to how legal texts, such as statutes, should be interpreted. His theory remains vague on the types of discursive rules and principles, as well as on the ways in which these rules and principles should be used.
The most common criticism of the new rhetoric has been that the doctrinal study of law is not a science at all if the truth-quality is removed from its statements and only replaced with talk of certainty and degrees of certainty. This was exactly the opinion of Alf Ross. The doctrinal study of law has to be scientific to at least some degree. Notwithstanding what Ross suggested, one counter-argument to the positivistic view is worth mentioning.
Instead of asking what can generally be considered science, we must look at actual legal research and its essential qualities. The starting point for theory formation is in legal-dogmatic research as it is practised, especially in continental Europe. When the essential qualities of the existing doctrinal study of law as an interpretative study have been uncovered, it becomes possible to see which legal statements, if any, belong to the field of “science”. In that, it is essential to identify the statements that fulfil the demands of controllability (Toulmin 1968, 50, 1976, 227; Aarnio 1983b, 47,1987, 67, 1997,189). If the statements of DSL cannot be controlled in a credible way, they fall outside science. The situation is not that fatal. The history of the doctrinal study of law in Europe pays witness to the fact that this type of study fulfils the criteria of controllability in a way that is exactly typical of that branch of science.
The theoretical challenge for the new rhetoric, as well as the theory of argumentation, is to identify the criteria of controllability suitable for the doctrinal study of law. The essence of those criteria concerns the rationality of legal reasoning, and here the Perelmanian ideas form a firm basis for further analysis. If one lets the arguments speak, the doctrinal study of law joins the family of sciences as a sovereign member. In this sense, it was Theodor Viehweg and Chaim Perelman who, more than anyone else, turned over a new leaf for European legal thought. This is a good place from which to proceed. Still, one excursion into the notion of science will be instructive.