Juan Antonio García Amado, in his essay “Rhetoric, Argumentation, and Law,” explains that in order to understand the role that rhetoric currently plays in legal argumentation, it is necessary to remember that medieval jurists attributed great importance to rhetoric and topics. This was true both in the polemical way of seeking solutions for disputes and in the method of teaching law. However, this importance went into crisis with the rise of modern rationalism and the change in the ideal model of rationality.¹
This initial approach allows us to verify that there is an important relationship between topics, rhetoric, and theories of legal argumentation. Professor Alberto del Real, in the study material for this module, indicates that argumentation in general, and legal argumentation in particular, have their conceptual roots in the tradition of rhetoric and topics of the classical authors of ancient Greece and Rome.²
In this way, the professor explains, citing Oreja F., that rhetoric is presented as a technique for selecting certain types of statements that can form part of persuasive reasoning. Furthermore, rhetoric establishes a logic of decision-making within the rationalization of discourses, introducing an objective distance in the confrontational discourse.³ Meanwhile, topics function as an instrument of dialectics or the art of dispute, a special type of reasoning that “provides dialectics with means or instruments to win the dispute.”⁴
In his essay “Topics, Rhetoric, and Theories of Legal Argumentation,” Juan A. García Amado reveals the connection between these three terms from a more contemporary perspective when he states:
If someone asks what relationship exists between the three parts mentioned in the title of this paper (topics, rhetoric, theories of legal argumentation), we can give the following provisional answer. The legal topics of Theodor Viehweg and the new rhetoric of Chaim Perelman constitute important precedents of those currents, which are so successful in contemporary legal-philosophical literature that they are grouped under the denomination of theories or doctrines of legal argumentation. Why or in what way are they precedents? They are because they introduce a decisive turn: practical legal reasoning, the reasoning that leads to legal decision-making, has a discursive and intersubjective character. In other words, understanding the reasoning process that in practice leads to a decision in law requires replacing the monologic perspective with a dialogical perspective.⁵
It is precisely the same author mentioned above who explains to us that the emergence of rhetoric among jurists responds to a realistic approach and the attempt to overcome it through new paths very different from those of rationalist positions.⁶ This author states that this way of thinking led to an evolution of the current theories of legal argumentation, which, at least in their most representative and influential proposals, offer an analysis of legal discourse that allows extracting rules of its rationality—rules of argumentation, rhetorical criteria that, at the same time, free rhetoric from its pure instrumentality and transform a legal activity (…) into an activity that can be called rational.⁷
It is from this point that the emergence of authors who rescue both rhetoric and topics as the foundation of legal argumentation begins: such is the case of Perelman, who uses Aristotelian rhetoric to demonstrate the argumentative rationality of legal reasoning.
and elaborated his theory of argumentation; Viehweg, for his part, rescued topics from the tradition and demonstrated the topical nature of reasoning oriented toward the justification of action. Recaséns Siches created the concept of the “logos of the reasonable” to express the type of rationality that governs these fields; Toulmin showed that practical reasoning also contains justifications, and that empirical or analytical reasoning also reaches a point where it must be interrupted.
All of the above allows us to affirm that topics and rhetoric have contributed to the development of theories on legal argumentation. I have read, for example, in an article written by Gerado Ribeiro, a Mexican lawyer and professor, that rhetorical resources make it possible to construct the meaning of argumentative discourse in legal proceedings.
Regarding topics, the author Ramón Beltrán Calfurrapa, in his article “Legal Topics and Their Argumentative Link to Precedent and Jurisprudence,” indicates that the relationship between topics and argumentation in its anti-systematic and anti-logical orientation lies in considering that legal reasoning is not and should not be systematic—meaning it cannot be deduced from closed systems—but topical, based on problems or open cases.
In conclusion, both concepts have strengthened the theories of legal argumentation, and although they have their foundations in the traditional forms of topics and rhetoric, they have evolved over time, allowing us to speak of more contemporary concepts.
Referencias bibliográficas
- García Amado, Juan A. Retórica, argumentación y derecho. Págs. 135-136. Disponible en Internet:
http://isegoria.revistas.csic.es/index.php/isegoria/article/download/80/801
Consultado el 24-4-19, 10:30 a.m. - García Amado, Juan A. Retórica, argumentación y derecho. Página 1. Disponible en Internet:
http://isegoria.revistas.csic.es/index.php/isegoria/article/download/80/80
Consultado el 24-4-19, 10:30 a.m. - Del Real Alcalá, Alberto. Argumentación y Métodos de Interpretación. Página 6.
- Del Real Alcalá, Alberto. Argumentación y Métodos de Interpretación. Citando a R. Soriano. Página 8.
- Ribeiro, Gerardo. La construcción retórica de la argumentación jurídica. Disponible en Internet:
https://revistas.ucu.edu.uy/index.php/revistadederecho/article/download/803/797/
Consultado el 24-4-19, 11:00 a.m. - Beltrán Calfurrapa, Ramón. La tópica jurídica y su vinculación argumentativa con el precedente y la jurisprudencia. Disponible en Internet:
https://scielo.conicyt.cl/scielo.php?script=sci_arttext&pid=S0718-68512012000200021
Consultado el 24-4-19, 12:00 a.m. - García Amado, Juan A. Tópica, Retórica y Teoría de la Argumentación Jurídica. Disponible en Internet:
http://fundamentofilosofico.blogia.com/2006/082601-t-pica-ret-rica-y-teor-as-de-la-argumentaci-n-jur-dica-jos-a-garc-a-amado.php
Consultado el 24-4-19, 11:00 a.m.
