Logic or rhetoric in law?

✍ Scribed by Alain Lempereur

• Book ID: 104633296
• Publisher: Springer Netherlands
• Year: 1991
• Tongue: English
• Weight: 947 KB
• Volume: 5
• Category: Article
• ISSN: 0920-427X
• DOI: 10.1007/bf00128812

✦ Synopsis

One of the most crucial questions in the philosophy of law deals with the very nature of legal reasoning. Does this reasoning belong to logic or to rhetoric? This debate, increasingly centered on rhetoric, is not merely a question of language use; it covers and indicates a more basic choice between formal legalism -focusing on rational deduction from the law -and pragmatic judiciarism -focusing on reasonable debate in the court.

Today, it is necessary to circumscribe the respective fields of logic and rhetoric in the language of law, while showing how they are sometimes complementary in the resolution of legal problems.

But, even when we have acknowledged the need for a rhetoric accompanied by logic, we have to define that rhetoric cautiously. I confront a narrow rhetoric, often called argumentation, with a wider one of interrogative nature. There are two conceptions of rationality at stake. Their comparison enables us to raise the question of the foundation of law, as a locus to use arguments, as well as to solve social problems.