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Rhetoric and Dialectic: Some Historical and

Legal Perspectives
HANNS HOHMANN
Department of Communication Studies
San Jos State University
1 Washington Square
San Jos, CA 95192-0112, U.S.A.

ABSTRACT: The thesis is defended that rhetoric is not, as is often said, a discipline which
is hierarchically subordinate to dialectic. It is argued that the modalities of the links between
rhetoric and dialectic must be seen in a somewhat different light: rhetoric and dialectic should
be viewed as two complementary disciplines. On the basis of a historical survey of the
views of various authors on the links between rhetoric and dialectic, it is concluded that
efforts to establish clear boundaries or unequivocal conceptual or moral hierarchical relationships between the two disciplines have failed and that therefore, they must be conceived
as being mutually dependent.
KEY WORDS: dialectic, legal argumentation, legal reasoning, persuasion, rhetoric, rhetorical demonstration

The trouble started when the names were assigned. In the first chapter of
his Rhetoric, Aristotle put the matter succinctly: while the term dialectician refers generally to a person possessing argumentative capabilities,
there is a special term sophist for someone who uses theses capabilities
to mislead by means of specious arguments; by contrast, the term rhetor
marks both the general category of people with an aptitude for persuasive
speaking as well as those among them who misuse this aptitude to deceive
their audiences (Aristotle, Rhetoric 1.1.14 [1355b]).
Ever since this initial terminological bifurcation, or perhaps even preceding and helping to explain it, there has been a tendency to emphasize
somewhat one-sidedly the negative potentials of rhetoric and the positive
aspects of dialectic. The upshot of this is to conceive of dialectic as a rather
pure and theoretically sound method aimed at a cooperative search for
cognitive truth, and of rhetoric as a seriously tainted and practically compromised knack serving a competitive quest for persuasive success.
And even when it is conceded that rhetoric at least can be theoretically
sound and used for good, it is often assigned an auxiliary role as a kind of
handmaiden of dialectic. The model for this intellectual class structure read
into the field of argumentation is outlined in Platos Phaedrus: dialectic,
understood as a somewhat esoteric process of real definition proceeding by
Argumentation 14: 223234, 2000.
2000 Kluwer Academic Publishers. Printed in the Netherlands.

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collection and division, uncovers the truth, which is then exoterically


imparted by means of a rhetoric which gives the soul the desired belief
and virtue (Plato, Phaedrus 265 D ff., 270 B).
I think that some traces of these tendencies can also be found in recent
work by two of our kind hosts for this colloquium, work in which they
enlarge the scope of their pragma-dialectical analysis to encompass rhetorical dimensions of the argumentative process. In a paper (van Eemeren
and Houtlosser, 1998) presented at last years ISSA Conference here in
Amsterdam, Frans van Eemeren and Peter Houtlosser resist the temptation to construct a neat dichotomy between rhetoric and dialectic, as we
find it posited for instance by Trudy Govier, who describes rhetoric as an
approach to argumentation in which we argue to win our case, while in
dialectic we argue in search of the truth; (Govier, 1997, p. 73) or even
by Cham Perelman and Lucie Olbrechts-Tyteca, who contrast, though with
some caveats, a concept of discussion, considered as a sincere quest for
the truth, with a concept of debate, whose protagonists [. . .] are chiefly
concerned with the triumph of their own viewpoint (Perelman and
Olbrechts-Tyteca, 1969, p. 38).
By contrast, van Eemeren and Houtlosser reject the sharp and infertile
ideological division between rhetoric and dialectic, and strongly insist on
both the theoretical connection between both, and on the way in which they
are linked in actual argumentative discourse (van Eemeren and Houtlosser,
1998, pp. 6. 4 ff.). But they still associate dialectic, as a method of critical
discussion, with the objective of resolving differences of opinion, in search
of a standpoint that is defensible against doubt or criticism; and they link
rhetoric, as a method of strategic manoeuvering, with the objective of
having ones own position accepted, aiming at successful persuasion (van
Eemeren and Houtlosser, 1998, pp. 1 ff.) And they also propose to subordinate rhetoric to dialectic in their model, positing that rhetorical moves
are to be viewed as operating within a dialectical framework (van Eemeren
and Houtlosser, 1998, pp. 4, 13 [n. 23]).
In my remarks today I would like to examine these characterizations
of the relationship between rhetoric and dialectic in connection with a
necessarily very cursory survey of some historical moments in the evolving
interactions between these two perspectives on argumentation, paying particular attention to the way these interactions have played themselves out
in the analysis of legal argumentation.1 This survey will offer strong support
for van Eemeren and Houtlossers insistence on the theoretical and practical links between the two disciplines, but I think this look back will also
suggest that we should perhaps see the modalities of these links in a
somewhat different light.

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The first way station in my survey will offer a brief look at some of
Aristotles characterizations of the relationships between rhetoric and
dialectic. To begin with, I would like to point out that in contrast to the
idealization of dialectic as a tool for philosophical truth-seeking that we
find in Platos sketchy program for such a method, the more fully workedout dialectic that we encounter in Aristotles Topica is a much more ambivalent pursuit. In fact the work does not only lay down elaborate ground rules
for the dialectical question-and-answer game, but is also very much a
handbook proposing to teach a method for winning such disputes. This aim
is particularly apparent in Book VIII, where Aristotle gives much advice
on how to conceal ones argumentative goals in order to extract from ones
opponent assent to premises and concessions needed to ground ones
successful argument. He does indeed also criticize as not a seemly proceeding a certain debased kind of discussion, but the starting point for
this warning is the observation that with a man who tries every means to
seem to avoid defeat you are justified in using every means to obtain your
conclusion (Aristotle, Topica 8.14 [164b]).
Concomitantly, Aristotle does indeed throughout his Rhetoric offer much
guidance on how to win ones case in a court of law or how to persuade
ones audience in a civic deliberative assembly or ceremonial gathering.
But he emphasizes that the function [of rhetoric as a discipline] is not to
persuade but to see the available means of persuasion in each case, as is
also the case in all the other arts (Aristotle, Rhetoric 1.1.14 [1355b]).
And furthermore he warns his own audience against an exclusive focus on
winning: he emphasizes that one should be able to argue persuasively on
either side of a question, just as in the use of the syllogism [i.e., as in
dialectic], not that we may actually do both (for one should not persuade
what is debased), but in order that it may not escape our notice what the
real state of the case is and that we ourselves may be able to refute if
another person uses speech unjustly (Aristotle, Rhetoric 1.1.12 [1355a]).
Aristotles characterization of rhetoric as an antistrophos to dialectic is
notoriously difficult to interpret (Green, 1990, pp. 5 ff.). But on the whole,
he appears to envision a coordinate relationship here, emphasizing the
parallels between the two fields: dialectic and rhetoric [. . .] are equally
concerned with opposites (Aristotle, Rhetoric 1.1.12 [1355a]); both are
concerned with such things as are, to a certain extent, within the knowledge of all people and belong to no separately defined science. A result is
that all people, in some way, share in both; for all, to some extent, try
both to test and to maintain an argument and to defend themselves and
attack (Aristotle, Rhetoric 1.1.1 [1354a]). In his translation of the Rhetoric,
George Kennedy parenthetically links the phrase to test and maintain an
argument with dialectic, and the phrase to defend themselves and attack
with rhetoric (Kennedy, 1991, p. 29); but I think that such unequivocal

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references cannot be maintained, since in the Topica, dialectic is likewise


associated with attack and defense, and Aristotles moral strictures about
the use of rhetoric also show a concern for testing arguments in the interest
of ascertaining what the real state of the case is.
An argument could be made on the basis of Aristotles observation that
rhetorical demonstration (apodeixis) proceeds by means of the enthymeme,
that the enthymeme is a kind of syllogism, and that furthermore it is the
function of dialectic, either as a whole or one of its parts, to see about every
syllogism equally (Aristotle, Rhetoric 1.1.11 [1355a]), that he sees rhetoric,
at least insofar as it deals with enthymematic arguments, as a part of, and
thus as theoretically subordinated to dialectic, which deals with all syllogisms, including the rhetorical syllogism of the enthymeme. But then again
in the Topica, dialectic is identified as relying on premises that are accepted
opinions (endoxa), which are further defined as those that commend themselves to all or the majority of the wise that is, to all of the wise or to
the majority or to the most famous and distinguished of them (Aristotle,
Topica 1.1 [100b]).2 And this characterization of the basis of dialectical
arguments lends itself in turn to the contention that in this respect dialectic
is a special case of, and insofar conceptually subordinated to rhetoric, since
rhetoric deals generally with arguments based on premises acceptable to
whatever audience is at hand, while dialectic relies particularly on premises
acceptable to a special limited kind of audience.

Not surprisingly, Cicero as the most famous rhetor of antiquity tends to


treat dialectic in both his philosophical and rhetorical writings as a tool
for the rhetorician; as a tool that is certainly important, but whose importance is nevertheless limited. For one thing, in his Topica he identifies
dialectic (dialektike) as being exclusively concerned with the judgment of
the validity of arguments, treating topics (topike), the art of inventing arguments that in his view is both more useful and certainly prior in the order
of nature, as a coordinated second branch of the systematic study of argumentation, rather than as a part of dialectic as well as of rhetoric (Cicero,
Topica 6). By contrast, the latter approach, treating topics as part of dialectic
as well as of rhetoric, had been Aristotles, who provided partially overlapping catalogues of dialectical and rhetorical topics in the Topica and in
the Rhetoric respectively (Aristotle, Topica 27 [108b ff.]; and Aristotle,
Rhetoric 2.23 [1397a ff.]). That Ciceros instrumental view of dialectic was
not a mere personal idiosyncracy is shown by the fact that in Roman education dialectic was treated as a propaedeutic subject, following the basic
study of grammar in the trivium, but followed by the more advanced pursuit
of rhetorical training. This instrumental view does, however, not entirely
preclude considerable respect for dialectic, which is expressed in Ciceros

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observation in his De finibus, a slightly earlier work than the Topica, that
dialectic encompasses at once the entire science of discerning the essence
of a thing, and of judging the qualities of a thing, by means of rational
argument and disputation (dialecticam [. . .] quae una continet omnem et
perspiciendi quid in quaque re sit scientiam et iudicandi quale quidque sit
et ratione ac via disputandi) (Cicero, De finibus 2.18).3 The same passage
also includes a reference to the differentiation between rhetoric and dialectic
proposed by Zeno the Stoic, much quoted throughout succeeding centuries
as well, that rhetoric was like the palm of the hand, dialectic like the closed
fist; because rhetoricians employ an expansive style, and dialecticians one
that is more compressed. However, it should be noted that Cicero does not
endorse Zenos view that continuous discourse in a more expansive vein
is not appropriate for philosophers, but rather proposes to employ for philosophical inquiry a rhetoric more subtle than that used in the law-courts
(Cicero, De finibus 2.17). And furthermore it should not be overlooked that
a compressed dialectical style may well be deployed rhetorically to
persuade certain audiences by its authoritative logical impressiveness.
Cicero used a somewhat dialectical approach to the systematic analysis
of legal argumentation in his Topica, aiming at ordering patterns of juristic
reasoning according to a more concise and general set of formal categories,
rather than the more substantively oriented topics found in the framework
of the rhetorical status system. On the whole, however, the orientation of
this book is rhetorical, a fact later emphasized by Boethius, who pointed
out that Cicero was not interested in the logical properties of the dialectical topics (such as genus and species, similarity and dissimilarity), but in
the application of these topics in the search for arguments to be used in
discussing legal problems and individual cases (Stump, 1978, p. 95).

This observation points to Boethius own proposal for differentiating


dialectic and rhetoric in his work De differentiis topicis. In Book IV he
distinguishes the two fields according to their different matter (materia),
use (usus), and end (finis). He contends that the matter of dialectic are
theses, i.e. general questions not involving particular circumstances, while
rhetoric deals with hypotheses, i.e. questions that do involve such individualizing circumstances, and that call for discussions of general issues
only incidentally to the resolution of particular problem cases. The distinction according to use focuses on the different types of discourse prevalent in the two disciplines: question and answer in dialectic and continuous
discourse in rhetoric. And he sees the different ends in dialectics wresting
from an adversary what it wants, and in rhetorics persuading a judge other
than the adversary (Stump, 1978, p. 79 f.).
It may be observed that this definition of dialectic would limit its matter

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to philosophical issues and would deny the label dialectical to the myriad
practically-oriented disputes that are a major focus of pragma-dialectical
analysis. It would also exclude, according to the criterion of use, from the
realm of dialectic a text such as William the Silents Apologia, a long
unbroken discourse with which van Eemeren and Houtlosser illustrated
the incorporation of rhetorical considerations into the pragma-dialectical
framework (van Eemeren and Houtlosser, 1998b). And the criterion of end
as formulated by Boethius ascribes competitive rather than cooperative
purposes to both rhetoric and dialectic, since victory over the opponent is
seen as the aim in both fields.
Boethius does reverse Ciceros preferential hierarchy very decisively and
unequivocally claims theoretical primacy for dialectic over rhetoric. But as
I have pointed out elsewhere, his argument for this contention is highly
problematic. He claims this primacy by pointing out that the rhetorician
always proceeds from dialectical topics, but the dialectician can be content
with his own topics (Stump, 1978, p. 79 f.). In other words, the rhetorical
topics are merely particular applications of the more general patterns
represented by the dialectical topics, and thus conceptually subordinated to
the latter. But when Boethius claims further that the rhetorical topics derive
their persuasiveness from the dialectical ones, I think he clearly overstates
his case. The persuasiveness, if any, of the use of a general topic such as
where the genus is absent, the species must also be absent in order to
refute the charge that someone was drunk by arguing that he had never
before been dissipated, would come not from the logical relationship
between genus and species expressed in the dialectical topical maxim, but
from the empirical belief, presumably based on inductive observation, that
drunkenness only occurs if their have been prior instances of other forms
of dissipation. Such appeals to common experience and probabilities,
however, are the stock-in-trade of the rhetorician rather than the dialectician (Hohmann, 1998a, pp. 45 ff.).

Boethius was instrumental in reviving the study of dialectic and logic, and
the heightened prestige which this study gained in subsequent centuries
was indicated by the fact that in the Middle Ages, rhetoric moved into
second place in the trivium after grammar, vacating the third and final stage
in these studies to a logically-oriented dialectic of increasing complexity.
At the same time, investigations of legal argumentation took on an increasingly dialectical cast in their choice of conceptual frameworks. This trend
becomes quite pronounced from the thirteenth century on in a group of
works that we may refer to collectively as the Modi arguendi in iure
(Caprioli, 1963, 1965); they compile legal arguments from the sources of
Roman law that had become the subject of intense study again since the

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turn from the eleventh to the twelfth century, and they arrange them in
categories that are primarily derived from dialectical topics as they had
been transmitted to the Middle Ages especially by Boethius De differentiis topicis. Thus many of these categories refer to formal relationships
between propositions in an argument, such as e contrario, a simili, or a
fortiori; but we also find more substantive terms such as ad inconveniens
sive absurdum that explicitly point to the value judgments underlying the
logical operations of legal argumentation. Even more important for our
discussion at this colloquium is the fact that the declared aim of such works
is to help the advocate win his case; by offering advice on how to argue
on both sides of any given legal issue, they facilitate conflict at least as
much as they help to resolve legal disputes, further confirming the ethical
ambivalence of dialectic as well as rhetoric (Hohmann, 1998a, pp. 47 ff.).

The tendency to present the functional equivalents of ancient rhetorical


treatments of legal argumentation in utramque partem in works of a
conceptually dialectical cast continues in the Renaissance, where such
books also begin to take on titles referring to dialectic (Gambari, 1507;
Hegendorff, 1547; Vigelius, 1573). One author who explicitly addresses
the relationship between dialectic and rhetoric in the context of legal argumentation is Christoph Hegendorff, who published both a Dialectica legalis
(1534) and a Rhetorica legalis (1541); on the whole he emphasizes the links
rather than the differences between the two fields.
In the earlier book, he characterizes dialectic by its reliance on terse formulations in dealing with its subjects, while rhetoric is seen as also a kind
of dialectic, but one that varies the naked surface of its dialectical material
by means of varied patterns of words and things. However, he emphasizes
that this is by no means a matter of vain display, but of presenting matters
in an more popular and clearer style, to make them accessible to a broader
public. Ultimately he echoes Ciceros echo of Zeno in calling dialectic a
concentrated and as it were tightened eloquence (contracta et quasi
adstricta eloquentia), and rhetoric an expanded dialectic (dilatata dialectica) (Hegendorff, 1547, p. 8r).
In the later work, he elaborates this further by pointing out that dialectic
teaches us how to discuss any matter according to a certain order and secure
method (ordine quodam et certa methodo), while rhetoric also provides
linguistic ornamentation and highlights of words and things (ornamenta
orationis at lumina verborum et rerum), by means of which naked facts
(res nudae) are decorated as well as clarified (et exornari et illustrari)
(Hegendorff, 1541, p. 4r). That this distinction is not meant to reduce
rhetoric to considerations of style rather than substance, in the later Ramist
manner, is shown by the fact that Hegendorff includes a full treatment of

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legal argumentation in his Rhetorica legalis as well as in his Dialectica


legalis. What rhetoric adds to dialectic in his view is a concern for pragmatic effectiveness, but rhetoric is not limited to that concern. The difference between the two fields here appears to be rather one of different
audiences: rhetoric deals with discourses addressed to a broader public,
while dialectic focuses on the more limited sphere of expert discussions.

But later works on legal argumentation initially tended to move away from
both rhetoric and dialectic, since the emphasis of both on controversial
discussions of subjects not lending themselves to demonstrable certainties
was at odds with growing political concerns about the effective control of
discretion of judges by legislation (Hohmann, 1998b). These concerns
expressed themselves in efforts to codify the law ever more comprehensively, and they provided an increasingly urgent impetus to characterize
the foundation of legal reasoning in terms of accurately interpreting the
sovereign will as expressed in such codifications. Earlier works on legal
interpretation, such as Stephanus de Federicis De interpretatione legum
(1495), had freely acknowledged their indebtedness to rhetorical theory,
especially to the ancient status legales. These sources are still in evidence
in seventeenth-century works discussing legal interpretation, such as in
Hugo Grotius De iure belli ac pacis (1625, revised 1631), and even more
copiously in Samuel Pufendorf s De iure naturae et gentium (1672), but
these authors purport to replace the rhetorical quest for conflicting arguments that can serve opposing advocates with a secure method for finding
the uniquely correct interpretation of legal norms. To that end, they develop
a hierarchy of interpretive methods that arranges the possible interpretive
approaches in a sequence, such that one is permitted to move to the
next level of interpretation only if no clear result has been obtained on the
preceding level. However, it soon becomes apparent that what matters is
not only whether the result is clear, but even more so whether it is satisfactory from a normative perspective indicated by concepts such as equity
(equitas) and natural reason (ratio naturalis) (Grotius, 1853, pp. 174 ff.).
Such concepts are clearly not amenable to unequivocal application, but
the subversive implications of this fact for the project of determining a
postulated singular genuine meaning (genuinus sensus) for any legal norm
(Pufendorf, 1759, p. 809) is not acknowledged in these and later efforts to
move towards a science of interpretation. And in the course of the eighteenth and nineteenth centuries, the links of legal argumentation with both
rhetoric and dialectic are in theory ever more pushed into the background
in favor of a focus on hermeneutics that ever renews the ever unfulfilled
promise of replacing the clash of opposing legal arguments in controversial discussions with solitary scientific determinations of legal meanings.

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Somewhat paradoxically, the concern for the political legitimacy of


adjudication thus promotes for highly rhetorical reasons a denial of the
rhetoricity of legal argumentation, and for the same reasons dialectic is
made to deny its dialogical and probabilistic origins in favor of a monological conception of logic emphasizing certainty. That legal practice
remains somewhat unaffected by such theoretical trends is shown by recurring scholarly complaints about the arbitrary use that practitioners make
of the instrumentarium of legal hermeneutics (Thibaut, 1806, p. 28; Lang,
1857, p. XI f.).

In our own now ending century, the affinities of argumentation in general


and legal argumentation in particular with dialectic and rhetoric have again
been increasingly acknowledged in theoretical treatments of the subject
as well. What has not emerged from these discussions, however, is an
unequivocal definition of the characteristics of and relationships between
legal rhetoric and legal dialectic. Thus we find works such as those of
Theodor Viehweg and Cham Perelman that declare their commitment to
a rhetorical perspective, but share with the logically-oriented dialectical
tradition a strong focus on philosophical and analytical interests (Viehweg,
1974; Perelman, 1979; see also Ballweg and Seibert, 1982). When it comes
to books with a more pedagogical and practical orientation that is more in
line with the mainstream of the rhetorical handbook tradition, it may be
noted that somewhat ironically it is Wolfgang Gasts Juristische Rhetorik
that emphasizes the role of rhetoric in reaching consensus (Gast, 1992,
p. 1), paralleling the cooperation-minded concerns of pragma-dialectics,
while it is Edward Ott in his Juristische Dialektik who promises his readers
in his subtitle fifty dialectical ways of arguing and devices for winning
legal disputes, echoing the promises of sophistic rhetoric (Ott, 1995).
At the same time, Ott insists on differentiating such successoriented tricks from a postulated systematic methodology (systematische
Methodenlehre) of law which alone and in contradistinction to legal rhetoric
is supposed to constitute a scientific perspective aimed at objective truth
(Ott, 1995, pp. 22, 27). On a more sophisticated level, such long-standing
worries about the perceived tension between rhetoric and truth have found
expression in concerns about the legitimation deficit of legal rhetoric, its
failure to provide any guarantee of the validity of discussion outcomes
beyond the mere fact of acceptance. Thus Gerhard Otte has called for an
argumentation theory that is somehow comparable to the rules of the
dialectical practice dispute (Otte, 1970, p. 190 f.) and Robert Alexy has
tried to develop a theory of legal argumentation that specifies in a set of
rules the requirements and conditions of a discussion capable of legitimating the results of that discussion (Alexy, 1996). But of course such

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dialectical rules can only shift the focus of controversial discussions


invoking rhetorical topoi, rather than replacing them.
Legal controversies arise precisely because rules are perceived as
unclear, and it is thus inherently improbable that such difficulties could be
resolved by referring the disputants to yet another set of rules. Norms such
as no speaker may contradict himself or each speaker may assert only
what he himself believes (Alexy, 1996, p. 234) appear to be clear on the
surface, but they are likely to engender great difficulties in application.
These difficulties can only be addressed by topically informed arguments
about the question what constitutes a credible and acceptable differentiation between apparently contradictory assertions, or the question which
circumstances support with sufficient probability the contention that
someone does or does not believe an assertion he or she has made. Thus
concepts such as self-contradiction or truthfulness point to rhetorical
controversies rather than leading away from them to a firm ground of
scientifically determinable and applicable rules of rational consensus.
While an interest in rules of discussion is also characteristic of the
pragma-dialectical approach, securing presumptively correct and thus
reliably legitimating discussion outcomes is apparently not the dominant
motivation behind pragma-dialectical analyses of argumentation. This is
shown also and in particular by the work on legal argumentation undertaken by representatives of this approach, such as by Eveline Feteris in
her recent book on Fundamentals of Legal Argumentation. There we find
that the soundness of a discussion aimed at the resolution of a legal dispute
is not specifically associated with the claim that the outcome of the dispute
will constitute a uniquely correct legal result (Feteris, 1999, pp. 163 ff.).
Nevertheless it cannot be overlooked that Feteris, while less anxious than
Alexy to dissociate herself from rhetorical approaches to legal argumentation, still criticizes them for their lack of standards for the evaluation of
the soundness of legal arguments, standards which the pragma-dialectical
approach sets out to supply (Feteris, 1999, p. 61). She thus presents pragmadialectic as an ultimately more appropriate approach to the analysis of legal
argumentation than that provided by topical-rhetorical theories (Feteris,
1999, p. 192).

Here it may be helpful to remind ourselves briefly that Boethius groundbreaking analysis of the foundations of dialectic clearly assigned practical
argumentation in general and legal argumentation in particular to the field
of rhetoric, and also denied that dialectical argumentation could lay claim
to certainty, a point on which he agreed with Aristotle (Hohmann, 1998a,
p. 43 f.). Any evaluation of arguments to be provided on the basis of dialectical rules will not be able to escape this limitation. The consideration of

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such rules may point beyond rhetorical considerations, but as I have argued
above, ultimately the very application of such rules will require discussions
leading us back onto rhetorical grounds. I think that remaining vestiges of
a thinking that tries to demarcate rhetorical and dialectical considerations
in terms of territorial claims could be eliminated even more decisively by
treating dialectical and rhetorical aspects of argumentation analysis as
complementary rather than asserting primacy of one over the other. Such
complementarity appears to me to be borne out by the failure of efforts to
establish either clear boundaries or unequivocal conceptual or moral hierarchical relationships between rhetoric and dialectic. I hope to have shown
in my brief survey that such efforts repeatedly eventuated in paradoxical
impasse rather than promoting enlightening analysis.
Returning to the beginning of this sketch we can observe that the mutual
dependence of dialectic and rhetoric on each other is shown nowhere more
clearly than in Aristotles pioneering analysis of the rhetorical foundation
of dialectical reasoning in the audience acceptance of its premises, and
of the dialectical justification of rhetoric by the corrective interplay of
opposing viewpoints. It is surely no accident that the faith in the critical
workings of this argumentative interplay also lies at the root of our confidence, however circumscribed, in the proper working of the legal adversarial system, and that legal argumentation perhaps more clearly than other
forms of reasoning highlights the need to link dialectical soundness and
rhetorical acceptability in the analysis and design of good arguments.4
NOTES
1

For a broad overview of the historical development of legal rhetoric see Hohmann, 1998c.
E. S. Forster translates endoxa as generally accepted opinions, but I think that in view
of Aristotles subsequent definition of the term, this translation is potentially misleading,
since the point of the definition is to insist on the special qualifications of a necessarily
limited rather than general audience.
3
My translation.
4
It may be an encouraging sign when C. L. Hamblin, an author strongly associated with
a dialectical perspective on argumentation, acknowledges that a strict differentiation between
criterial validity and audience acceptance cannot successfully be maintained (Hamblin, 1970,
pp. 242 ff.).
2

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