Case-laboratory, 22 March 2017
Samuli Hurri
Last time
we decided to move in our work from analysis of grammar to analysis of
rhetoric. This time, I will try to provide a few lines of groundwork to clarify
what this move, in my mind, would essentially mean. Furthermore, I will try to
lay before you a brief suggestion for an outline of facets of rhetorical
analysis. In accordance with the broader aims of our most recent research plan,
I will use another occasion to connect a genealogical dimension to this outline.
Let me just note at this point that a certain analytical division between types of dispute in legal cases exists
in the ancient tradition of rhetoric, which seems to resemble substantively what
we have in the outline.
I would
like to start by pointing at the difference between grammar and rhetoric as objects
of analysis. What does this shift from the one to the other mean?
The object
of the analysis of grammar, as we have had it, is to individuate the necessary
elements in complete legal argumentation. We seek to reconstruct these elements
on the basis of the standard questions posed in the ECtHR cases on Articles
8–11: Was one of the Convention’s individual rights interfered with? Was the
interference authorized or arbitrary from the point of view of national legality?
Was there a legitimate policy-end that justifies the interference? Were the
measures taken appropriate and proportionate in the particular circumstances of
the case? Our task in this respect is to examine whether these standard
questions somehow stand for the necessary elements of legal argumentation in
general and therefore reflect its linguistic deep structure (grammar).
The aim of
such analysis is a system of argumentation that we presume to be reducible to a
set of fixed relations between the said elements (rights, legality, ends, and
means). It appears to be that the relations between the grammatical elements form
differently according to the speaking position of the party in question. For
instance, an applicant in a human rights case will typically say that his rights and the circumstances of the case will outweigh the possible legality and legitimate end that would justify the interference. The respondent
State, in turn, will typically be in a position to say the opposite. This is of
course too rough simplification, but generally speaking it makes sense to say
the following: argumentative basic positions are constituted by the structures
of legal argumentation. In other words, what the litigants on different sides will
argue derives from the intrinsic structure of legal language.
Now, what
does the move from analysis of grammar to analysis of rhetoric mean? Let me
suggest, first, that the object of analysis is no longer the structures of
legal argumentation as such, but the strategic choices that these structures make available for actors. Whereas
the elementary grammar gives a rather fixed network of speaking positions,
rhetoric requires fair amount of genius and creativity from the speaker.
Speakers will have to make something out of the language; perhaps we can even say
that they should turn themselves from subjects to masters of language. When it
comes to rhetoric, the positions given to speakers do not determine what they will say; by speaking, they subject legal
language to strategic use, giving it strategic meaning and purpose. In terms of classical structuralism, we would
move from analysis of (social) systems of language to (individual’s) actual practice of speaking (from langue to parole).
This way, and
unlike in grammar, choosing is at the centre of everything in rhetoric. In this
regard, the question of methodology will be raised. How to analyse rhetoric?
Where to perceive choices? In our last meeting, we already made the preliminary
individuation of facets where rhetorical and strategic choices could be found. We
thought that choices may be found in strategies of narration, conceptualisation
and composition, and finally, in strategies of distinguishing and
analogy. Let me provide a brief resume of what I suppose we all had in mind
when we agreed to embark on the analysis of rhetoric.
1. Narration, as we had it, is basically the way in which
litigants and judges pick the facts and forge a story about the course of
events that have led to the case at hand. Here the idea could be to point out
the way in which the choices made in presenting certain “facts” rather than
others (or emphasising certain facts and downplaying others) works the ground
for the argumentation that will follow afterwards. Notable in this regard is the
very last part of case dossier, where normative principles are applied to the
circumstances of the case in order to determine whether interference was ‘necessary
in democratic society’. One could perhaps say that narration, to some extent,
is an art of perceiving significant details. In S.H. case, for instance, the fine distinctions between the
different medical methods of helping parents to get children were brought in
the foreground. Yet there are of course more stakes involved in the analysis of
narrative choices. Narrative may be seen as a way of understanding human life
and the world in which we live: human actions, as well as state actions, become
meaningful when inserted – as they originally are – in a storyline. For example,
our Castells case can hardly be
understood without the background story of Franco’s dictatorship, supressed
legacy of republicanism, and Bask activism. Likewise, in Vona’s background there is the history of how fascist totalitarian
regimes once came about. In the background of S.A.S. is the history of French colonialism in northern Africa.
2. Distinguishing/analogy is about comparing the case at hand
with previous cases. I have moved it right next to narration, because, as I now
see it, it should perhaps be considered together with narration as one single
facet, because here the choice of facts and details reappear most palpably in
argumentation. What is distinguishing/analogy? As a matter of course, one way
to relate previous case law is to simply draw on the so-called “precedents”.
Precedents are the cases where the Court at some point has clarified significantly
the principles “enshrined in the law” (in the Convention), that is,
reconstructed new principles for questions that were not covered in the written
law. Also, one may try to make analogies between different fields: for
instance, principles that were reconstructed in the context of freedom of
speech may be offered as valid also in the field of freedom of assembly. This
type of analogy was attempted by the Hungarian Government in Vona, but rejected (“distinguished”) by
the Court. Yet these types of arguments are not strategies of distinguishing
and analogy properly so called. What marks out distinguishing and analogy is
that they work with the facts and
circumstances of the cases compared, which creates the vital connection of
this facet to narration facet. Accordingly, one may say that the fact of
veiling one’s face is a significant difference from veiling other parts of the
body, which made S.A.S. different from certain previous cases. Furthermore, one
may draw on the doctrine of “dynamic interpretation” and say that because of
the evolution of society (its values, its technologies, etc.) the circumstances
are not the same as they had been in previous cases.
3. Conceptualisation, as we had it, is the way in which
one defines what the case is about, giving it a context. This facet differs
from the narrative facet in that society is conceived in a synchronic register,
not in the diachronic one. The metaphor is the “map” rather than story.
Conceptualisation is about giving the case a locus in society by defining it,
for example, as a matter of economic governing or as a matter of security
administration. To borrow more concrete examples from Kati’s work: is religious
attire to be conceived as an expression of someone’s personal belief, expression
of her belonging to a culture, or her performance that is best understood in
the context of political activism? This type of conceptualisation and contextualisation
need not necessarily rely on the concepts and categories that the law (the
Convention, in our case) makes available. Nevertheless, one way to trace the
choices made in this dimension is, for instance, by looking at which of the
Convention rights is considered most relevant (for instance, all the Articles 8
to 11 were invoked in the S.A.S. case,
but the Court’s argumentation revolved around Art 9 dominantly) and which of
the legitimate ends (of those enumerated in the second paragraphs of Articles)
is considered the appropriate justification.
4. With composition, in turn, we wanted to
denote the design of strategic structure in argumentation: how the pros and cons are played out, how the
connection between the applicable
principles and their application
to the case is made. While composition in a broad sense involves the legal
speech in its entirety (how narration, conceptualisation and argumentation are
made into a whole) there may be good reasons to consider composition in a
narrow sense as well. In the narrow sense, composition would target that part
of legal argumentation where justification of acts is discussed. This part is
‘decisive’ in the legal sense, but all the same it is built on the ground of
narration and conceptualisation. However, here facts and their correct
understanding is no longer the problem. Rather, the problem is, first, the
reconstruction of the normative principles that would regulate the dispute at
hand. These principles most often give some type of counter values in scales,
as it were, so that a balance needs to be struck between them in each case
separately. The second problem should be to find out about the facts of the
case, which facts either call for or undercut the application of the principles
laid down in the first phase. For one thing, to analyse composition means that
one tries to see how facts of the case and generally valid norms are made into
an argumentative whole. More importantly, however, it is about conceiving the
strategic situation between opposing litigants who would present opposing
arguments. It is about analysing apart the ways in which someone incorporates
the counter-arguments (what the opponent would say) in one’s own argumentation.
In the end,
let me once again return to the main thing: as rhetoric, structures of legal
argumentation expect the speaker to use the language, not according to some set
of rules, but creatively. Analysis of the work of a speaker will have missed
the point from the beginning, if it sets as its object some sort of mapping out
of all the possible choices available. The horizon of possible inventions
should be seen boundless in principle. This is what distinguishes analysis of
rhetoric from analysis of grammar in another way: instead of the limited possibilities
that constitute the position given by legal language, an analyst of rhetoric
will be given a case that is in all
essentials constituted by the speakers involved.
