The Idea of New Rhetoric
This is Perelman’s greatest achievement as a philosopher. He disproved the idea of rhetoric as nothing but an eloquent tool for persuasion, and returned it to its roots, to a question of how to convince the other part of the dialogue.
The goal of reasoning is not persuasion, manipulation or mental intimidation but credibility and acceptability. The reasoning has reached its goal when the counterpart of the dialogue becomes convinced about the final result through the power of the arguments, not, for instance, due to the authority of the person giving the arguments. In “good” reasoning, both the discursive procedure as such and the conclusion have to be acceptable.Perelman is correct to point out that it was Aristotle who originally chose to separate rhetoric and dialectics, even though he thought that the two were related, more or less adjacent pairs. In Perelman’s own words: Dialectics deals with arguments used in disputes and bilateral conversations, while rhetoric focuses on the techniques of the public speaker as he speaks to a crowd of laymen gathered together in a public space, not equipped to follow more complicated reasoning.
In dialetics, the arguments are presented to experts, not to laymen. For instance, the core of legal discourse lies in the communication between those who are well informed as regards the problem at issue. That is why the new rhetoric is significant, especially for lawyers. In real life, there are, of course, a great number of cases where lawyers do the same as others - that is, wield, or at least want to wield, (mental) power over the others. The model of rational legal reasoning cannot, however, be based on these kinds of contingent examples. The theory of legal reasoning, in the Perelmanian sense, focuses on the ideal cases, where all contingencies are excluded. In these cases, the solving of a legal problem cannot be based on persuasion, or on manipulation either.
Instead, the decision-maker or scholar tries to convince the other part - at least, this should be his goal. The recipient of a dialogue becomes convinced if, and only if, certain principles of rational discourse are followed and the statement is based on substantially valid arguments.To simplify the point, legal discourse is like a game of chess. The principles of rational discourse are like the rules of chess and sources of law the pieces of the game. In the “game of reasoning” the lawyer moves the pieces according to certain discursive standards. Each move is either for or against the statement being controversial. The totality of the moves produces the whole, called legal justification.
Perelman saw this kind of reasoning as being a dialogue by its nature, not a monologue. No one speaks or writes to himself. This point provides a reference to the question of private language discussed in Chapter 5. Legal reasoning is always a social matter, and as such a part of human communication. It is no wonder that, after Perelman, rhetoric has largely turned into a theory of rational discourse and communicative rationality.
Conceptually, the Perelmanian dialogue includes two participants, A and B. Let us assume that A presents an argument, X, in favour of a certain interpretation, T1, of the statute S. The other part, B, the receiver of the argument X, presents a counter argument, Y, which happens to be contradictory to X. In the position of B can be an individual, as in our example, or a group, or a community, and, according to Perelman, even a universal community covering all individuals (Perelman 1968, 15; Toulmin 1968, 149, 1968, 144, 195, 1976, 90). Perelman called the recipient - in our case, B - an audience. The idea of legal discourse can now be elucidated as a dialogue between the interpreter (A), and the audience (B). In this case, the core of legal discourse is squeezed into the question: What are the necessary - or sufficient - means to convince the audience of the validity of a certain interpretation as regards a certain statute?
The question splices the old rhetoric away from the new one, and makes a conceptual difference between speech skills and argumentation.
As speech skills, rhetoric persuades and coaxes; it might flatter, manipulate or even invade the most sensitive areas of human privacy by shaping emotions. The new rhetoric deals with convincing the audience through the strength of the arguments. When the arguments are weighty enough, the recipient either accepts the presented interpretation as it is, bringing forth a (genuine) consensus on the matter, or is at least ready to make a fair compromise. The result is accepted due to the argumentative force of reasons, not because of the person presenting them.This provides a new viewpoint on the way Perelman separates demonstration (logical reasoning) and argumentation from each other. In demonstration, one follows certain rules of deductive inference to arrive at formally logically true statements. Rhetorical argumentation, in its turn, consists of substantial truths, thus giving rise to the problem of whether statements about values, morality or law can be “true” or only more or less well justified (Toulmin 1968, 195, 202). This question is important because legal interpretations cannot be justified with reference to the empirical reality. As the analysis of Alf Ross' theory revealed, a statement on the content of law has no Tarskian “correspondence” with external reality. That is why the notion of truth has no use in the doctrinal study of law understood as an interpretative science if the notion of truth is defined with the Tarskian criteria.
At its best, rhetorical argumentation can produce a kind of “certainty”, not truth, or in the Perelmanian terminology, probability. However, the notion of probability is in this context as inaccurate as it is in the Rossian prediction theory. At its core, probability is a quantitative concept. In the doctrinal study of law, probability has more to do with legitimacy than mathematical-statistical probability. From beginning to end, argumentation is about what is qualitatively acceptable on a specific occasion.
Argumentation strives to “bring together” the interpreter and the recipient in a way that results in an adequate mutual understanding (Aarnio 1987, 221).What proved to be troublesome for Perelman was that each opinion given to an actual audience easily turns into persuasion in practice. The interpreter cannot separate rational and non-rational arguments, and this also stands for the recipient. Then the dialogue tends to include prejudices, unfounded beliefs, impressions, emotions and will. Argumentation is distorted into rhetoric in its eloquent sense. Even though all speech and writing is directed at someone (an audience), it cannot, as a theoretical concept, be an actual community, such as a school class. The teachers and students can all too easily fall into the traps of persuasion and manipulation. The community that is the focus of the reasoning has to be general and unlimited in order to function as a party in a dialogue aimed at convincing the other.
For this purpose, Perelman adopted the concept of a universal audience. In the development of his theory, this concept is important but also easily misleading (Ray 1978, 361). The universal audience does draw attention away from persuasion and manipulation toward convincement and credibility, but the concept “universal” is problematic in itself. If the universal audience includes all the individuals of the world at a given moment, it is not specifically universal. It is a composite of members of a given place at a given time, even if the number of members reaches into the billions. A universal audience like this does not differ from a school class in any important way. On the contrary, it is an empirical truth that it includes the collision of many interests deeply linked to a culture. It is impossible to think that one could “let arguments speak” in this huge and empirically locked audience. Thus, in order to salvage Perelman’s central ideas, the only alternative is a new definition of the universal audience.
If the concept “universal” is used similarly to the “universals” of logic, it is an abstraction that covers all possible worlds, including all the recipients one can think of. A rational, mutual understanding in this universal audience necessarily means an objective truth, valid in all surroundings. If a dialogue focuses on morality, this definition of the universal audience results in the conclusion that an objective truth is reached even in moral questions. Actually, Perelman refers to this principled possibility in his presentation of moral argumentation.
Still, this very definition of the universal audience is problematic. In order to reach truth, all the members of the universal audience must be wholly rational beings. It is only by this assumption that it becomes possible to think of the universal audience reaching truth in moral or legal questions. As we will see in more detail, the universal audience is then nothing but another version of the “ideal speech situation” introduced by John Searle and Jürgen Habermas, or Hercules J in the Dworkinian theory. It is an ideal not reachable by humans, and therefore only a theoretical standard like the model of meter in Paris. The “truth” of a universal audience is only of a prima facie nature. It is always in need of contextual interpretation, and it is this contextual interpretation that is the focus of the theory of rational legal argumentation.
The needs of that theory can be fulfilled by utilising the concept of partial universal audience (Aarnio 1987,222). The monstrosity of this term surely needs some further clarification. An audience that is partial as well as universal covers all the individuals who accept the principles of rational argumentation and commit to them. Therefore, it does not include every person in the world, and it is not even essential to ponder who belongs or could belong to it in the actual world. The members of the partial universal audience are, of course, ideal beings, which is why the audience in itself is ideal.
It is assumed that the members have internalised the ideal of rational discourse and committed themselves to it. This assumption is weaker than that behind Perelman’s universal audience. A partial audience has room for different opinions based on different interests. It is possible that two members of the audience, sharing the same terms of rationality, commit to different moral presumptions, perhaps because of different (basic) interests. Rationality would not guarantee unanimity, or even a consensus, on moral presumption with any certainty. Due to different interests, not all rationally deliberative people would necessarily end up at the same result in hard (moral) cases.This idea comes close to that introduced by Robert Alexy. In his analysis of human and constitutional rights, Alexy points out that human rights as such possess only moral validity. According to Alexy, a right is morally valid if it is justified by everyone who is able and willing to engage in rational argument. The validity of human rights is their existence. “The existence of human rights, therefore, consists in their justifiability and in nothing else” (Alexy 2004a, 15).
The reasoning does not lose its character as justification when the premise concerning the interest is introduced. The interest is always connected with decisions, and these concern the fundamental question of whether or not we accept our discursive possibilities. This problem is connected to the notion of human identity - i.e., what is a human being (Garzon Valdes 2006, 231; Hoerster 1983, 93).