From IVR encyclopedie
I. Introductory remarks
Rhetoric, despite the heavy critique and many controversies it has provoked, belongs to one of the important theoretical traditions in legal history. It has always been connected to the classical tradition of oratory and debate. In this context it has played an important role both in political and legal discourse since the time of ancient Greece and Rome, through the Middle Ages, and up to the present day.
Following the classical tradition rhetoric is usually defined as an art of persuasive speech aimed at convincing as many people as possible, or as an art of inventing and effectively presenting arguments inferred from the starting points and values of the audience. In the Middle Ages a narrow conception of rhetoric, disconnected from the dialectical and logical component of the classical tradition, was developed. Rhetoric became separated from both logic and grammar and became an autonomous part of the scholastic trivium – grammar, logic, and rhetoric. During the Renaissance the sections of rhetoric previously associated with the theory ofinventio and dispositio were integrated under the term dialectic. As a consequence, rhetoric became limited toelocutio. Since the beginning of the eighteenth century one can see a development of a much broader conception of rhetoric. It is not restricted simply to framing public speech. Recently it has been regarded as the persuasive use of language, a symbolic means of inducing co-operative acts and attitudes.
In present times the concept of rhetoric not only means an art, but also a theory about the coherent use of verbal and non-verbal means of communication for the purpose of persuading and convincing others of the appropriateness of the speaker’s attitudes, beliefs and actions. Rhetoric has become a fully developed theory of argumentation grounded on the pragmatic level of communication. Its modern version consists of two different levels of investigation. The first level is connected with the technique of searching for premises, in other words with ways of inventing arguments. The second level relates to the problem of forming an opinion about something. Further this level consists of questions concerning the nature of the premises and questions about their application within the process of justifying a particular standpoint. However, even today rhetoric is often opposed to analytic, dialectic and logic. Although such a sharp opposition is not necessary legitimate, many authors claim that it is so because the major aim of rhetoric is persuasion, not truth. Others, like Perelman, argue that the epistemological status of rhetoric depends on the audience to which the argument is addressed.
Not only is ancient rhetoric famous for particular argumentative figures, but it is also famous for its procedure of preparing and delivering public speeches. The procedure consists of three major elements: inventio -finding arguments, dispositio – proper ordering and arranging of the speech and elocutio, appropriate stylistic formulation. Next a speaker has to memorize the speech – memoria and provide it with the right intonation and gestures - actio. The speech itself should encompass four basic parts: the exordium – the introduction,narratio – the presentation of the case, argumentatio – the refutation of competitive standpoints and justification of speaker’s own opinion, and finally the peroratio – the summary and conclusion. From time to time argumentation can be enriched by additional digressions (digressio), but they are not a necessary element of the speech.
The classical approach distinguishes among three major genera orationis regarding the type of situation and audience to which the speech is delivered. The genus iudiciale relates to a juridical situation in which speeches are made in favor of a particular judgment. It concerns the past and takes place when the argument is about the problem of justice before a judge. The genus deliberativum relates to a political situation in which speeches are made for or against the expediency of a particular political measure or a course of action. It is a discourse ad futurum, which is conducted before the body politic. And the genus demonstrativum, is related to a festive or ceremonial occasion in which a person or an action is praised as honorable or condemned as dishonorable. In this case, the audience is concerned with honor and acts as a spectator, not as a judge.
Logos, ethos and pathos constitute the three major rhetorical means of persuasion. Logos is a particular means of persuasion based on both deductive and inductive reasoning. In fact, it introduces us to a topical procedure of finding arguments, to a process of grasping the multiplicity of meanings of premises presented in a particular case. In order to do so one must identify various categories and establish similarities and differences, i.e. genus and species and various genus-classes. In this respect, Aristotle attempts to identify relations between genera (accident, genus, property, and definition), categories (essence, quantity, quality, relation, place, time, position, state, activity, passivity), and organa which enable us to find appropriate inferences. Knowledge of general relations between these elements of discourse helps to establish arguments in particular cases. Ethos, replaced by modern socio-psychology with the notion of credibility, can be defined as the demonstration of the arguer’s competence, intelligence and trustworthiness. Of course, the degree of credibility is context-dependent. Thus credibility is a characteristic that depends on several things. The most important are: the arguer’s reputation, his sincerity and identification with the values of the audience, the organization of the speech, the quality of his pronunciation, and the quality of the evidence provided. Although rhetoric attaches a different role and position to pathos the relevance of pathos has always been incontestable. Emotional persuasion aims at an association of a particular subject with a particular value or belief shared by the audience. Rhetoric aims at describing how a manipulator can redirect the feelings and interests of an audience attached to a particular subject through a change in the emotional context or the connotations of words.
II. Fields of interest of Rhetoric
Taking into account the role played by language in effective communication, rhetoric can be defined as the theory of the persuasive use of language. In a sense, language determines the whole framework of rhetoric since verbal means of communication are essential for the audience. In fact, whenever one determines the features of an argument the evidence or values on which it is grounded necessarily refer to language. However, the rhetorical interest is not limited to the semantic and semiotic level. It is always inherently focused on pragmatics. Accordingly, rhetorical conceptions analyze different phonological, morphological, semantic, syntactical and pragmatic figures to find out how they evoke thoughts, feelings and emotions. The role of rhetoric is to explain how the selective use of particular words, rhetorical figures or behavior function and influence the audience.
Rhetoric is an audience-oriented theory. Although the Aristotelian distinction among the genus iudiciale, thegenus deliberativum and the genus demonstrativum has lost its function, a classification of rhetoric on the basis of the audience to which speech is directed is still vital. Hence a coherent perspective on rhetoric must also consider the nature of those people to whom the message is addressed: whether it is addressed to an actual group or an ideal or universal audience, and how the homogeneity or heterogeneity of the audience’s composition influences the path of reasoning in persuasive speech. Rhetoric is mainly concerned with an actual audience, but it is also interested in differences between the audience of the actual speech and the audience of the transcript. The distinction between a hearer and a reader is crucial for rhetoric because often the transcript does not have the appeal that an actual speech does. Plus, the non-verbal elements of effective messages can be identified in the actual speech.
A modern understanding of the rhetorical context involves an extended conception of the contexts that were systematically explored by the classical rhetoricians. This development is mainly based on socio-psychological investigations concerning the issue of credibility and the identification between a speaker and his audience. Accordingly, modern rhetoric goes beyond public speech to the context of scientific, academic and other forums of deliberation. In addition, some contemporary theories extend the ancient idea of the rhetorical domain and incorporate into rhetoric the issue of auto-deliberation. Nevertheless, issues concerning the influence of context, occasion, and situation, even in new forms, still constitute the core of rhetoric. This is so because the persuasiveness of the message not only depends on the quality of the argument itself, but also on the credibility of its source and the values shared by the sender and the audience.
The context-dependency of the rhetorical situation implies particular standards for the quality of persuasive communication. From the internal perspective of the participants in the rhetorical situation, it implies a particular qualitative relationship embedded in the connection between the status of the audience and the status of the speaker. Therefore, normative standards of rhetoric are connected to vertical and horizontal status relations between the author of the message and the audience. The standards of acceptability differ depending on whether the audience is homogenous or heterogeneous, and on whether the relation between a speaker and an audience is a relation of neutrality, subordination or superiority, or a kind of mix of these types. Since horizontal and vertical relations create or break the persuasiveness of a message, rhetoric strives to identify standards that affect them in the communication. The identification of persuasive arguments takes place in the light of the historical background and the experience of the audience. Hence one can distinguish between premises which will be perceived by a particular audience as certain, plausible or only fortuitous. Rhetoric does not deny that the evaluation criteria of an argument transcend the local context; nevertheless it always refers to a local conception of what counts as a good reason. What makes a rhetorical argument good, are the reasons for accepting its conclusions. From a rhetorical perspective it is not important whether the argument is valid according to demonstrative criteria because, as already mentioned, the acceptance of the transition from the premises to the conclusion depends on the audience. Rather, it is the cogency of both the premises and the inferences which is at stake. The use of demonstrative reasoning is only one of the means in order to convince an audience.
Not only does rhetoric deal with the effective presentation of good reasons, but it also concerned with the method of investigating or discovering acceptable arguments. Inventio is one of the three major tasks a speaker has to perform before delivering a persuasive speech. The rhetorical invention differs from the method of invention in science. Whereas science is concerned with universals and oriented towards producing new knowledge, rhetorical invention is oriented towards discovering probable arguments. Rhetorical invention can be viewed as a process of discovering the relevance or appropriateness of arguments for a specific case. It consists in discovering arguments on the basis of particular topics, which serve to prompt and to suggest what the audience would affirm and assert and what the speaker has to argue about. In this respect, one must distinguish between topics of universal applicability and particular topics. This distinction was a core difference between the Greek and the Roman approaches to inventive discourse. Whereas the universal topics has an analytical foundation shared by all sciences and is applicable to all subject matters, the particular topics is applicable only to particular subject matters.
III. Law and rhetoric
Ever since the end of the nineteenth century when legal positivism became a dominant approach to law in Europe, one can see the decline of rhetoric in legal education in Civil Law countries. Rhetoric and the topical approach to law have been replaced by dogmatic and analytic studies focused on the text of positive regulations. Also, Anglo-Saxon legal education has shifted from being traditional rhetorically-based legal training to being focused on case studies. Since the Langdellian case study model became the cornerstone of American legal education, the study of rhetoric and rhetorical theory has been all but abandoned. Yale’s rhetorically based curriculum is an exception.
However, in the second half of the twentieth century interest in legal rhetoric began to grow. While the discussion concerning rhetoric and topics was provoked in Europe mainly by publications of Ch. Perelman and T. Viehweg, in the USA a “rhetorical turn“ was due to the needs of litigation practice.
Contemporary research in legal rhetoric conducted both in Europe and in the USA not only encompasses the issue of legal interpretation and the role of rhetoric in the application of law, but also questions related to the rhetorical analysis of law - making legislation, legal negotiations and alternative dispute resolution. The analysis of the judgements of courts and tribunals, such as the one provided by K. Sobota, not only reveals the hidden premises of judicial decisions but also shows that courts apply logical argumentation and grammatical interpretation of law and also appeal to ethos and pathos. However, the most important thing is that modern thinkers like O. Ballweg, P. Goodrich, P. Robertshaw, S. Toulmin and K. Burke present rhetoric as an objective technique for analysing the structure of political and legal discourse.
Modern analyses show that the rhetorical-topical approach to law can replace the positivistic paradigm and lead to a more realistic theory. This theory can account for the excessive use of judicial discretion at the level of judicial power and it can account for the fact that modern law often breaks with the principle of the separation of powers. From the rhetorical perspective legal interpretation will always be creative. Hence the application of law is presented as a process of fitting a specific problem into the legal system with the aim of providing a solution. Rhetoric claims that legal discourse does not consist exclusively in a problem of internal justification. The application of a particular interpretation or choice of a legal provision is not conditioned by an a priori determined system of rules but by a quest for an acceptable solution.
From the rhetorical point of view, a legal system is a particular set of (well or poorly) systematized and (more or less) understandable rules. Rhetorical argumentation operates on the level of natural language. Since legal language is like any other language in that it is a type of social practice, legal rhetoric necessarily bears the imprint of such a practice or organisational background and presents legal discourse as a particular example of social practice. Therefore legal rhetoric provides a particular methodology that differs from the analytical, socio-psychological methodology for establishing what counts as legitimate data for a particular issue and how to support it with relevant reasons. For this reason a purely rhetorical approach to legal discourse may require that the law be limited to the specific exercise of power of a particular person or group. Thus rhetoric, even if it supports a paradigm of law based on social consensus and acceptance, bears the danger of being an abuse of freedom and power. This inability of rhetorical conceptions to offer procedural rules, which would secure the legitimisation or correctness of a decision beyond its acceptance by a particular auditorium, threatens the security or fairness in the law. Particular rules have to be observed if the subjective element is to be minimalised, as happens in societies without one shared conception of the good. Without rules not only the conception of the Rechtsstaat (rule of law), but also the notion of the Rechtsordnung(legal order) are unimaginable.
On the level of lawmaking rhetoric carries us away from Hobbes’ authoritarian vision of politics. The concept of the will of a sovereign does not fit the reality of the rhetorical vision of society and law where law is a complex social practice grounded on practical science which is, in turn, based on time-tested opinions and games of power. Since successful rhetorical communication depends on standards and values shared by a speaker and his audience, a lawmaker in a democratic system must comply with them. The rhetorical analysis of legislation shows that even texts of law are not free from those factors.
Ballweg O., Analytische Rhetorik als juristische Grundlagenforschung, in R. Alexy. R. Greier, U. Neumann (Eds.), Rechts- und Sozialphilosophie in Deutschland heute: Beiträge zur Sandortbestimmung. ARSP Beiheft, Bd. 44, Studgart 1991, pp. 45-54;
Goodrich P., Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analisys, New York St. Martin Press 1987;
Levine L.,. Saunders C.M, Thinking like a Rhetor, Legal Education (43) 1993, pp. 108-122;
Luederssen, K., Juristische Topik und konsensorientierte Rechtsgeltung, in N. Horn, ed. Europäisches Rechtsdenken in Geschichte und Gegenwart: Festschrift für Helmut Coing, München, C.H. Beck, 1982, p. 549-64;
Morawski, L., Argumentacje, racjonalno?? prawa i post?powanie dowodowe. UMK, Toru? 1988.
Perelman, Ch., Olbrechts-Tyteca, The New Rhetoric. A Treatise on Argumentation, t?um. J. Wilkinson, P. Weaver. University of Notre Dame Press, London 1969;
Robertshaw P. Law, Language and Rhetoric, in: Modern Law Review 50 (1987) pp. 971-981;
Schultze G., Ethos, Pathos und Logos – Juristische Rhetorik in der neueren Deutschen Zivilgesetzgebung, in: ed. G. Kreutzbauer, S. Augeneder, Der Juristische Streit: Recht zwischen Rhetorik Argumentation und Dogmatik, ARSP Beiheft Bd. 99, Wiesbaden 2004 p. 26-35,
Sobota K., Rhetorische Muster der Rechtsgewinnung am Beispiel einer Entscheidung des OVG Münster, in: T Schirren, G. Ueding (Eds.) Topik und Rhetorik: Ein interdisziplinäres Symposion. Rhetorik Forschungen, Bd.13, Niemeyer, Tübingen 2000, pp. 522-539;
Van Eemeren, F.H., Grootendorst, R., Snoeck Henkemans, F., Fundamentals of Argumentation Theory. A Handbook of Historical Backgrounds and Contemporary Developments. Lawrence Erlbaum Associates, New Jersey 1999.
 Burke, K., Rhetoric of Motives, University of California Press, Berkeley, 1969, s. 43
 van Eemeren, F.H., Grootendorst, R., i in., Fundamentals of Argumentation Theory. A Handbook of Historical Background and Contemporary Developments. Lawrence Erlbaum Associates, New Jersey 1996. p.46
 Weaver, R.M., “Some Rhetorical Aspects of Grammatical Categories” in: The Ethics of Rhetoric Chicago: Henry Regency, 1953, pp. 115-142
 Brooks, C, and Warren, R. S., Modern Rhetoric, Harcourt, Brace & World, New York etc., 1970, p. 3, Burke, K., Language as Symbolic Action, Berkeley : University of California, 1968, p. 45; Wiener, M. and Mehrabian, A., Language Within Language: Immediacy, A Channel in Verbal Communication, New York, Appleton- Century –Crofts, Inc., 1968 p. 3, 29;
 Perelman, Ch., The Rhetoric and Humanities, s. 92 in., Richards, I.A., The Philosophy of Rhetoric, New York, Oxford University Press, 1965, p. 92;
 L. Levine, C.M. Saunders, Thinking like a Rhetor, Legal Education (43) 1993, p. 111,
 K. Sobota, Argumente und stilistische Überzeugungsmittel in Entscheidungen des Bundesverfassungsgerichts: Eine Rhetorik-Analyse auf empirischer Grundlage, in: W. Gast (ed), Juristische Rhetorik. Rhetorik: Ein internationales Jahrbuch, Bd. 15, Niemeyer, Tübingen 1996, pp. 115-136; K. Sobota, Rhetorische Muster der Rechtsgewinnung am Beispiel einer Entscheidung des OVG Münster, in: T Schirren, G. Ueding (Eds.) Topik und Rhetorik: Ein interdisziplinäres Symposion. Rhetorik Forschungen, Bd.13, Niemeyer, Tübingen 2000, pp. 522-539.
 O. Ballweg, Analytische Rhetorik als juristische Grundlagenforschung, in R. Alexy. R. Greier, U. Neumann (Eds.), Rechts- und Sozialphilosophie in Deutschland heute: Beiträge zur Sandortbestimmung. ARSP Beiheft, Bd. 44, Studgart 1991, pp. 45-54, idem Analytical Rhetoric, Semiotic and Law, in: Law and semiotics (1) 1987, pp.25-33, P. Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analisys, New York St. Martin Press 1987; P. Robertshaw “Law, Language and Rhetoric” in Modern Law Review 50 (1987) pp. 971-981; S.Toulmin, The Use of Argument, Cambridge, Cambridge University Press, 1958.
 Morawski, L., Argumentacje, Racjonalno?? Prawa…, s. 68; Perelman Ch., Justice, Law and Argument. Essays on Moral and Legal Reasoning, Dordrecht , Reidel, 1980, p. 124
 Luederssen, K., „Juristische Topik und konsensorientierte Rechtsgeltung”, in N. Horn, ed. Europäisches Rechtsdenken in Geschichte und Gegenwart: Festschrift für Helmut Coing, München, C.H. Beck, 1982, p. 549-64; Ballweg, O., „Rhetorik und Vertrauen”, w: E. Denninger and others, Eds. „Kritik und Vertauen: Festschrift für Peter Schneider zum 70. Geburtstag”, Frankfurt a. M, Verlag Anton Hain, 1990, s. 34-44
 Alexy, R., A Theory of Legal Argumentation. The Theory of rational Discourses as Theory of Legal Justification, Clarendon Press, Oxford 1989, pp.23-24
 See Schultze G., “Ethos, Pathos und Logos – Juristische Rhetorik in der neueren Deutschen Zivilgesetzgebung“, in: ed. G. Kreutzbauer, S. Augeneder, Der Juristische Streit: Recht zwischen Rhetorik Argumentation und Dogmatik, ARSP Beiheft Bd. 99, Wiesbaden 2004 p. 26-35,