The Return of Rhetoric
The return of rhetoric into the legal context actually occurred after the Second World War. Perhaps it is appropriate to associate this turn with the name of the German Theodor Viehweg (1993,16).
It is not the task of my contribution to develop Viehweg's central idea any further, so I will content myself with the following remark. Legal thinking is not deductive from top to bottom. When solving a legal problem, a lawyer does not act according to the classic syllogistic model. Even though being logical is obviously a lawyer's virtue as well, law is “something more”, something other than deductive inference. Legal discretion is problem-directed and “topical”, developing its arguments from a certain point. This is the very thing that provides the connection with rhetoric. Nevertheless, even as Viehweg connected his thoughts to the ancient tradition of rhetoric while providing a detailed description of its development and characteristics, he still makes a decisive break with Antiquity.Viehweg emphasised a new dimension of rhetoric. It was for him no longer the art of speaking or persuasion but argumentation, a form of thinking, not a form of speaking. In this specific way, Viehweg can be held as a significant thinker in the development, the influence of which reaches all the way to present-day theory of argumentation (Weinberger 1973, 17). On the other hand, Viehweg did not add anything new to the analysis introduced already by Aristotle in his book on topics. Aristotle emphasised that the key issue is to identify a method on the basis of which one can reason consequentially and defend successfully his/her standpoint. This is the core of new Perelmanian rhetoric as well (Aristotle,Topic I.1 100a 18-21).
Perelman was a full-blooded philosopher and a philosophy professor, but he was a lawyer by education. This becomes clear in his unceasing interest in legal thinking.
Therefore, there are good reasons to call his thinking not just moral-philosophical but legal-theoretical as well. In this regard, the basic question is as follows: Can a value statement be justified, and if this is possible, what is this justification about? For Perelman, this very problem was of the utmost importance after his dissertation on Gottlob Frege’s logic.Any kind of logic cannot answer the problem of the goodness/inferiority of valuegoals in any better way than empirical research. As a tautological operation, logical reasoning is always valid, but empty as far as the content of reasoning is concerned. Two plus two equals four, no more, no less. Pure deductive logic does not provide an answer for what is good or bad, beautiful or ugly, right or wrong, just as one cannot by means of logic find out what ought to be done or what is allowed or forbidden in a certain situation at a certain time.
On the other hand, legal reasoning is not inductive. The assertions on law cannot be tested by empirical observations. What is essential is rhetorical argumentation (new rhetoric), where the only criterion for a “good” reasoning is the weight of the arguments. In this regard, Perelman stands apart from some of the other classics of rhetoric, like Kenneth Burke, who was not interested in the “goodness” of argumentation at all, but in the hidden “rhetoricity” of our verbal acts, especially the force and cunning inherent in rhetorical expressions (Burke 1945, 59, 91, 1969, 19).
Once Perelman had set his sights on the preconditions of “good” reasoning, an important step was taken toward the question of how mutual understanding between people can be reached in such difficult matters as values, morality or law. Here, the decisive notion is not truth but acceptance of claims that might be controversial through the presented arguments - and legal argumentation is reasoning for and against something, pro & contra.