Law as Rhetoric, Rhetoric as Argument - by Kurt M. Saunders

 

Law as Rhetoric, Rhetoric as Argument

Journal of Legal Education, volume 44, number 2, December 1994

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4384713

The text "Law as Rhetoric, Rhetoric as Argument" by Kurt M. Saunders focuses on the intrinsic relationship between law and rhetoric, emphasizing the importance of understanding legal argumentation. The primary thesis is that classical and contemporary rhetorical theories provide essential frameworks for grasping the structure and process of legal arguments, which is crucial for effective legal advocacy.

Key Points of the Text:

1. Foundation in Rhetoric:

   • Law and rhetoric share a historical and cultural heritage. This relationship suggests that insights from rhetorical theory are beneficial for legal practitioners and students.

2. Nature of Legal Arguments:

   • Legal arguments are fundamentally about persuasion and are practical rather than theoretical. They aim to establish one claim as more reasonable compared to another, acknowledging the possibility of opposing arguments and the inherent ambiguity of language.

3. Theoretical Contributions:

   • Stephen Toulmin and Chaim Perelman are highlighted for their contributions to the understanding of practical argumentation. They shift the focus from formal logic to practical arguments that reflect real-world reasoning.

4. Toulmin’s Model of Argumentation:

   • Toulmin introduces a model that includes claims, grounds, warrants, backing, qualifiers, and rebuttals. This model is procedural and reflects the dynamic nature of legal reasoning, where the movement from accepted data, through a warrant, leads to a claim.

5. Perelman’s New Rhetoric:

   • Perelman focuses on the role of rhetoric in shaping legal arguments by emphasizing the practical side of argumentation and the role of the audience in determining the persuasiveness of an argument.

6. Applications in Legal Education and Practice:

   • Both Toulmin and Perelman’s theories are suggested as valuable for legal education and practice. They help in understanding and constructing legal arguments, particularly in the context of litigation and advocacy.

7. Practical Implications:

   • The theories provide a foundation for teaching how to construct arguments at various stages of litigation and emphasize the heuristic nature of legal argumentation, which is about finding the most persuasive arguments based on the evidence and legal authority available.

8. Heuristics and Argument Construction:

   • The text discusses heuristics from both Toulmin and Perelman that can be applied to the construction and analysis of arguments in legal settings, aiding students and practitioners in effective argumentation and advocacy.

In conclusion, the text advocates for a more explicit integration of rhetorical theory into legal education to improve the understanding and effectiveness of legal argumentation. This approach helps bridge the gap between theoretical concepts and practical application in legal settings, enhancing the persuasive and justificatory capabilities of legal professionals.