As a subject of jurisprudence, legal argumentation has always been prone to intimate relations with other fields of enquiry. Aristotle himself arranged for the connections between legal argumentation, practical reason and rhetoric (Eth. Nic. V; Rhet. I.1, 10–15; Top.). Jurisprudence has thrived well on these connections, for long they were appreciated as entirely sufficient. However, the perception cannot be avoided that practical reason and rhetoric are not sufficient any more.
Regrettably, today’s academic research on legal argumentation is increasingly exposed to the danger of insulating itself from the outside world. A vision of the wider worth of one’s investigations has not been secured well enough, not at least in the analytic direction. In any event, argumentation has over the last twenty years lost its former impetus as the major subject of jurisprudence. At the same time, however, nobody questions the importance of the subject and its demand is not waning in the field of practice.
Problems of argumentation may and should be revitalised. This can be done by generating a robust critical dimension to them, which would provide the work of analysis with perspective and final cause. Our initiative is to build this critical dimension on the notion of moral constitution.
What is moral constitution? To begin with, it as a matter of an individual’s relation to oneself. A solid self-relation may protect the individual from the surrounding society, but it is the work of social experience all the same. Confrontation with others and with the impersonal society will constantly put one’s moral self-defences to a test of endurance. At stake is an individual’s idea of oneself that is shaped by and defended in social interaction. What sort of critical support the law may give to individuals going through such moral trials and tribulations?
On the analytical side, legal argumentation may be modelled on structural linguistics. This allows posing the following type of questions: What are the key components that make up a complete package of legal speech? Which of these components may and may not go together in particular cases? In the background of these questions is Ferdinand de Saussure and his famous langue/parole distinction: language is an underlying grammatical structure that is ‘executed’ in the individual acts of speech.
Manifestations of legal argumentation – acts of legal speech, expressions of good justifying reasons – may be seen as execution of underlying structure. At the level of structure, a set of key components may be individuated and a system of their relationships exposed. But this is not all. Drawing on Noam Chomsky’s generative grammar, one may set out from a counterintuitive postulation: abiding by norms is not what the law is about, like it is not what speaking a language is about. Instead of putting reins on action, the underlying legal grammar generates social action – like linguistic grammar generates speech – by setting up a reservoir of ‘finite means’ that actors may arrange for ‘infinite uses’.
Yet language is not a mere means in the hands of its speakers, but a social fact to which people will have to adapt. Moreover, the assertion that language exerts formative power on human individuals needs to be taken seriously. Drawing on Emile Benveniste on this score, we may even say that ‘it is in and through language that man constitutes himself as a subject’. This last point about subject-constituting language brings us back to the critical dimension: the moral constitution.
The idea that language somehow constitutes the subject makes a connection between the critical and the analytical sides of researching legal argumentation. This is no novelty, in fact the idea is very old. It, too, may be ascribed to Aristotle. For him, what makes human beings (distinct from animals) is language, notably the language by which we are capable of judging between the good and the bad, the advantageous and the detrimental, and the right and the wrong (Pol. I.2 12353a10–17). Remarkably, one of these functions points to legal language, the language of the right and wrong.
Taking our cue from Aristotle at that point, the problem of moral constitution may be addressed: What are the effects of legal language on the moral constitution of individuals? Two additional questions put some flesh on the problem: How far is the formative power of legal language based on external force and pure threat of violence? Conversely, how far this power can work properly only as an internal force through the mindset it inculcates in individuals?
Many of the ways in which human subjects are moulded by social powers work through the legal language. That language functions as a mould for those powers, but also as a mould for human subjects. However, the psychic effect of this language is not only subjection to power, but also certain type of ethics that results from subjection. This ethics is inherent to social existence, one may call it the ‘ethics of struggle’. The task will be to investigate legal argumentation in that context.
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