The creative heart of legal argumentation

Looking at legal argumentation as a form of social action, we share Neil MacCormick’s basic outlook on the targets of analysis. What we call the key components of a complete legal argument should ...  

... describe norms actually operative within the systems under study.(1)

As actually operative within the system, the said argumentative components are to be understood in a certain distinct way: as vital elements of practice. They  are not norms in the sense of external conditions of action that narrow down its possibilities, say, in the way legal prohibitions and permissions do. Instead, key components are structures internal to practice: they generate action and open up avenues for strategic choices. Insofar as key components are to be designated as 'norms' at all, they are so as structures of a social practice (in our case, structures of the legal practice). They are not legal norms that regulate and frame social practices from the outside. 

The importance of the above distinction needs to be stressed for all it is worth. The more so, as at first glance the idea of  'norms of legal practice' that are not 'legal norms' may sound confusing. Therefore, it should be made as clear as possible. On the one hand, key components are not things that could be written down in laws or decided upon in judgments, but structures of the very language in which laws are written and decisions made. On the other hand, the existence of key components is not automatically sustained by some self-evident order of things, but depends always on individual actions that constantly make use of them. (Similarly as the existence of a natural language depends on the fact that someone continues speaking it.)

Returning to the problem, the complete legal argument, what type of things one may have in mind as its key components? We will set out from the following four extremely simple notions: individual right and general law, on the one hand, and ends and means, on the other hand. Clearly our purpose at this stage is to reduce the complexity to the minimum. These are the most basic notions of the law, on the one hand, and practical reason, on the other hand. I will return later to the specific way in which our research materials resonate with exactly this set of notions. For the time being, it may be understood as a rudimentary sketch of what to look for in legal cases.

Mere description of key components is not our main analytical goal, however. The main goal is a comprehensive turn to what may be called the ‘context of discovery’ of legal arguments. Thus far, jurisprudence has felt itself much more at home in the so-called ‘context of justification’, that is, in the context of ex post assessment of arguments. Arguments are easy to assess once they are given, but what is the mystery behind the art of making them? This is not a new research question, far from it, but it is a forgotten one. 

We believe that the context of discovery may be retraced in the footsteps of Cicero, who placed the invention of arguments in the center. Should we believe this splendid master of judicial oratory, invention of arguments is indeed a different matter from judging on their validity (Topica, II.8). One may say that judging as justification may simply take what is given to it: facts of the case, on the one hand, and legal norms, on the other hand. By contrast, invention is a creative art. According to Cicero, this creative art may be tracked down and even learned by looking for the places (the so-called topoi, ‘regions’) from which arguments at law courts are drawn. Accordingly, one may speak of the topology of legal argumentation beside its grammar.

This way the key components may be understood, not only as elements of a grammar, but also as something like Cicero's argumentative places or topoi. But then, and more importantly, Cicero’s broader vision gives also some deeper sense to our analytical efforts. We would like to view the key components, and the invisible system of their possible connections, as nothing less than the creative heart of legal practice. This heart would have always fed juridical discourse with substance. Moreover, it would have always given legal language a rational structure. Finally, it would have always secured the integrity of the law as one of the most ancient fields of social action. Should we find out where the heart is hidden, we will know the source of its power.

Note

(1) Neil MacCormick, Legal Reasoning and Legal Theory. Oxford: Clarendon Press 1987, p. 13.