International Journal For The Semiotics of Law 12: 135-152, 1999
International Journal For The Semiotics of Law 12: 135-152, 1999
International Journal For The Semiotics of Law 12: 135-152, 1999
ABSTRACT. The thesis here expounded can be divided in three parts: in the first place, it
is supposed that the syllogism is not the rhetorical way, and less still the logical way, indeed
used to reach the decision in the legal proceedings monopolized by the modern State. At
the most, it can be seen as a form of presenting a decision that has already been reached by
other means. It sure constitutes a highly functional procedure, effective and legitimating. It
is generally not a conscious strategy on the part of the so called official legal agents (judges,
prosecutors, state attorneys, lawyers, plaintiffs), which seem to believe that the decision
before the concrete case is in fact produced by the previous general norm enunciated by
the system. If there would be a chronological order, the general norm comes afterwards.
In the second place, the judicial discursive structure seems to be rather enthymematic than
syllogistic, because not all the effectively used norms are revealed, many of them staying
not only out of question but also hidden. Finally, it is suggested that, in the atmosphere of
faking dogmatic law in which acts the underdeveloped State, those implicit norms are not
just presupposed as evident, but they are also uncertain, being rendered to manipulation.
I NTRODUCTION
The distinctive trade marks of the practice and the theory of law, at the
dawn of contemporary western civilization, have been the great express
State codifications (statutory and jurisprudential) and positivist thinking.
At first, legal interpretation of the codes as exemplified in the French
École d’Éxegese was naive, but normative theories became broader and
better adapted to the new law. There were the Historische Rechtschule,
Begriffsjurisprudenz, Interessenjurisprudenz, Libre Récherche du Droit,
Wienerkreis, different forms of legal realism and so on. In spite of those
more abstract and sophisticated trends of normative legal theory, it seems
even today to remain the conviction, linked to a syllogistic mentality, that
every particular legal decision derives from a previous system of general
norms.
The thesis here expounded can be divided into three parts: in the first
place, it is supposed that the syllogism is not the rhetorical way, and less
? I thank my friend Prof. John Rooney for language corrections, although he is not
responsible for anything.
still the logical way, in fact used to reach the decision in the legal proceed-
ings monopolized by the modern State. At the most, it can be seen as a form
of presenting a decision that has already been reached by other means.1 It
surely constitutes a highly functional procedure, effective and legitimating.
It is generally not a conscious strategy on the part of the so called official
legal agents (judges, prosecutors, state attorneys, lawyers, plaintiffs), who
seem to believe that the decision of the concrete case is in fact produced by
the previous general norm pronounced by the system. But the “. . . general
legal norms (reflected in the major premise) do not ‘refer’ at all to the
facts of cases brought under them (reflected in the minor premise)”.2 If
there would be a chronological order, the general norm comes last. In
the second place, the judicial discursive structure seems to be much more
enthymematic than syllogistic, among other aspects, because not all the
used norms are revealed, many of them staying not only out of question but
also hidden. Finally, it is suggested that, in the atmosphere of a pretence
of dogmatic law in which the underdeveloped State acts, those implicit
norms are not just presupposed as evident, but they are also uncertain,
being susceptible to manipulation.3
This presentation is part of a wider work which tries to study the
rhetorical syllogism (enthymeme) as a starting point for a theory better
adapted to understanding modern judicial procedures. The work is far from
complete, for it does not contain the empirical part, which is just getting
started. Departing from concrete judicial decisions in Recife’s local Hall of
Justice, it tries to show the actual, real sources of the decisions and to what
extent they correspond to the arguments in which the decisions allegedly
are founded, that is, the explicit state norms.
sarily follow from their premises, unlike the apodictic syllogisms; but they
are pragmatically useful if the objective is to persuade without the demands
of rigid logical coherence, in case this is not possible, opportune or desir-
able. The main task of rhetoric is to investigate them. Thus, many of the
ethical and political subjects come to be part of rhetoric.
The ethical problem is in the root of the debate and Aristotle takes the
platonic distinction between rhetoric and philosophy as a point of depar-
ture. They both, Plato13 and Aristotle, considered the sophistic impure
exactly for bringing rhetoric into philosophy, confusing them. Isocrates,
the rhetor, for example, presents himself as philosopher. Plato warns
against the bad use of rhetoric, the danger that an eloquent quibbler repre-
sents, when he concentrates his work on persuasion while understanding
truth to be impossible.14 And Aristotle, as already said, is educated under
the influence of Plato, depreciating rhetoric in comparison to philosophy.
This opinion, however, does not seem to have been unanimous in Greece,
where some took rhetoric as the citizen’s “highest spiritual occupation”.15
“Rhetoric, as the study of contingency, was . . . opposed to any elaboration
of knowledge which was dependent upon the use of absolutized categories
of reason or necessity”.16 It is in polemicizing with the pupils of Isocrates
that Aristotle begins to study rhetoric and his rhetoric course attracts
Athens’ youth to the point of causing Isocrates concern.17
The political problem is also important in the process of truth and philo-
sophy prevailing over rhetoric, which does not start with Quintilian and
his emphasis on ornament. Already under the influence of Aristotle one
can notice a “implicit restriction of the choices available to the rhetori-
cians who were later faced with the decline of all forms of democracy
and the extreme contraction of the public domain of politically significant
speech”.18 (p. 105) Goodrich, Jurisprudence.
Etymologically, the word enthymeme comes from enthymeísthai (to
consider, to ponder, to contemplate) and Isocrates seems to have been the
first to introduce the expression in the rhetorical jargon, as an ornament for
speech. The work Rhetoric to Alexander, whose authorship is doubted and
attributed by many to Anaximenes of Lampsakos, already tries to define
19 Joachim Ritter and Karl Gründer (hrsg.), Historisches Wörterbuch der Philosophie,
vol. 2 (Basel-Stuttgart: Schwabe & Co., 1972), 759 f.
20 Antonio Tovar (n. 6), XVII–XXXI.
21 Marcus Fabius Quintilianus, Institutionis Oratoriae, Liber XII, 5–10,1 f., 5–14-1 and
5–14-24, among other texts. The citations refer to the bilingual edition from H. Rahn
(hrsg.), Ausbildung des Redners, vol. I (Darmstadt: Wissenschaftliche Buchgesellschaft,
1988), 547, 651and 661.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 141
which does not express the syllogism in its entirety, but suppresses what is
obvious or very well-known to the listener. The enthymeme presupposes
that the listener knows and agrees with the silenced premise or conclu-
sion, be this in fact or not. For instance: Dorieus won the Olympic games,
Dorieus won a crown. It lacks the major premise, because everyone knows
that the prize of the games is a crown.26 What will be formulated and what
will be silenced depends on the concrete situation. In fact, the Aristotelian
concept is not incompatible with this formal one, he just tries to go beyond
and understand how is it possible to leave implicit essential parts of the
thinking process, and how it works so well.
Aristotle lists some of the topoi which are good to base the enthy-
memes, be they real or apparent: the employment of oppositions and
equivalences of terms (antonyms and synonyms), the comparison, differ-
ences in degree, previous experiences, polysemy, ambiguities, generalizing
judgments of value. He enumerates 28 of those points of view.27 Examples
of topoi building enthymemes are: conclusion starting from the opposite:
“courage is good, because cowardice is bad”; conclusion coming from
the implication between complementary concepts: “if it is good to learn
rhetoric, then also it is good to teach rhetoric”; conclusion from a judgment
about the stronger or larger, extended to the weaker or smaller: “if not even
the gods know everything, less still do men” (variants of this enthymeme
are “the one who can the plus, he can the minus”, “the one who cannot the
minus, he cannot the plus”); starting from an authority argument: “the soul
is immortal because the great philosophers have affirmed so”.
The topics consists of that group of rules which are good to demon-
strate something (topoi), rules that are not deductive or demonstrative, but
nevertheless are axiomatic, based on recognized points of view. The topics
are of service to rhetoric but also to science, politics, law, literary theory
and so on.
Aristotle says expressly that the enthymeme is the nucleus of the art of
persuasion and the central object of rhetoric. The enthymeme shows that
rhetoric is a counterpart of dialectics: as well as the dialectical conclusions,
which also come from the endoxa, the enthymeme takes care of that which
does not necessarily follow from the invoked premises.
To facilitate the recognition and the construction of enthymemes, Aris-
totle builds a topic of the enthymeme, a topic inside the Rhetoric, besides
the one included in his Topic itself. To find and to build enthymemes
is one of the most important functions of inventio. The invention (“to
discover thoughts which would be more adapted to the aim intended by
26 Aristotle, Rhetoric, I, 2, 1357a, 15–20.
27 Aristotle, Rhetoric, II, 23, 1397a, 10–30.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 143
the speaker”) is one of the six parts of eloquence (“to mean or intend to
convince and persuade, provoking delight”).28 For such, one of the oldest
methods is the topics.
In his Topic, Aristotle had already placed the concept of dialectic syllo-
gism, based on universally accepted premises (endoxa), different from
the apodictic syllogism, based on evident, unquestionable premises and
conclusion. The dialectical syllogism (epiquirem), although less inex-
orable than the apodictic syllogism, is demonstrable, contrary to the
enthymeme, which is persuasive. He also clearly separates the enthymeme
from the eristical syllogism of the sophists, which is based on false
premises or arrives at false conclusions. So the enthymeme, studied later,
does not get mixed up with those other syllogism forms.
The discursive ways of persuasion are separated into technical and
rhetorical. The technical concern the Ethos (presentation of the speaker’s
character, giving credibility to his words), Pathos (that consists in waking
up emotions in the listeners) and Logos (the objective argumentation).
Concerning the rhetorical discursive ways of persuasion, Aristotle makes
an analogy with the methods employed by science and dialectics, also
finding the induction (epagogé) and the deduction (syllogismós). Thus,
the corresponding rhetorical ways are the paradigm (inductive, called
“rhetorical induction”) and the enthymeme (deductive, called “rhetorical
syllogism”).
With Aristotle’s contribution, a topical or material classification of the
enthymemes may be tried.
First Group: enthymemes that have for a base the probable, that which
could and can happen in a different way from what has
indeed been verified, that is, events which are neither neces-
sary nor impossible. It is the domain of the contingent. But
it is not contingency in its absolute sense: the rare and the
merely casual, which are contingent, they do not come up
here. The probable happens in most of the cases and almost
always, it is relatively stable, in a certain way permanent
and not arbitrary. The argument seems verisimilar to all, to
most of the people or to the wiser ones.
Example of Euripides’ Medea: the reflective man does not teach the
children more wisdom than necessary, because they become indolent and
envied by their fellow citizens. But there is always the possibility of
28 Frei Joaquim do Amor Divino Caneca, Tratado de Eloqüência, Obras Polı́ticas
e Literárias, vol. I, collected by the Comendador Antonio Joaquim de Mello (Recife:
Typographia Mercantil, 1875), 65.
144 JOÃO MAURÍCIO ADEODATO
Third group: enthymemes that rest upon signs or indications. They can
be classified according to two basic criteria: 1. Considering
if the sign does or does not constitute a definitive and irre-
futable indication of what it seems to attest; for instance:
this woman is lactating, therefore, she gave birth to a child.
2. Considering if the sign constitutes a particular indication
that leads to a general object or a general indication that
reveals a particularized object. The combination of those
classificatory criteria leads to four types of enthymeme
by signs or indications: 1a. There are enough particular
indications to reveal a general object, as in the relation-
ship between lactating and maternity. 1b. There are general
indications to suggest a particular object (this kind of
enthymeme is not so argumentatively useful, because a
general indication can signal several different objects –
paleness could be a sign of fatigue, stress, fright, preg-
nancy – and an effective indication should lead to one single
object). 2a. The particular signs are insufficient to a general
object; for example: Socrates is wise and Socrates is fair,
therefore wise persons are just. 2b. The general indications
are not enough to lead to a particular object; example: preg-
nant women become pale, this woman is pale, therefore she
is pregnant.
The law systems in some more complex societies, which may be called
“dogmatic”, are characterized by only considering arguments allegedly
based in a legal norm which preexists in the State legal order. The inter-
pretation and application of this law comes as syllogistic: the alleged state
norm, generally expressed by statutes and repertories of judicial decisions,
represents the major premise; the concrete case, through a subsumptive
process, constitutes the minor premise; and the individual norm, the
decision applied to the concrete case, corresponds to the conclusion.
This dogmatic form of organizing the state law still leans on three other
basic postulates, among several others, which are the constraint to decide
or the prohibition of non liquet; the constraint to interpret, supplying the
concrete meaning and the actual reach of the general norms; and the need
of justifying the decisions, the problem of legitimacy.34
34 Normsetzungszwang, Entscheidungszwang, Deutungszwang and Begründungszwang.
See Ottmar Ballweg, “Entwurf einer analytischen Rhetorik”, H. Schanze (hrsg.), Rhetorik
und Philosophie (München: Alber, 1989), 229 f.; Theodor Viehweg, “Notizen zu einer
rhetorischen Argumentationstheorie der Rechtsdisziplin”, Theodor Viehweg, Rechtsphilo-
sophie oder Rechtstheorie? (Darmstadt: Wissenschaftliche Buchgesellschaft), 315–326;
João Maurı́cio Adeodato, “Inconsistency Strategies in Peripheral Judicial Systems: A Form
of Alternative Law”, Elspeth Attwooll and Paolo Comanducci (editors), Sources of Law
and Legislation – Special Issue ARSP, Beiheft N. 69, vol. III (Stuttgart: Franz Steiner
Verlag, 1997), 122–131; and João Maurı́cio Adeodato, Filosofia do Direito. Uma Crı́tica à
Verdade na Ética e na Ciência (São Paulo: Saraiva, 1996), 11–16.
148 JOÃO MAURÍCIO ADEODATO
posterior justification for a choice already made before the end of the offi-
cial proceedings and produced by different means that do not arise from the
mentioned norm although the interpreter may naively think, or strategically
allege, to take it as a point of departure. Although the objectivity of truth
is taken as self-evident, a pragmatic approach may make truth “. . . relative
to the perspective of different users” and “. . . relative to the discourse in
which it is constructed”.37
In contemporary legal theory this non-subsumptive approach is already
present in the so called American legal realism, whose precursor, Oliver
Wendell Holmes, emphasizes the empirical, variable character of judi-
cial decisions and their inarticulated, unspoken major premises. To Karl
Llewellyn, who studied in Germany, it is clear that the general legal norms
neither express what law really is, what courts decide from case to case,
nor produce its possibilities.38
What is in fact verified is the incompleteness of the alleged norm:
its text, metonymically confused with the norm itself, simply works as
a starting point, although important, for the juridical operators. Only when
indeed accomplished in the concrete case does the norm constitute itself in
reality. This does not represent any deficiency but seems to be hermeneu-
tically necessary and aprioristic.39 More still, it is not only the concrete
norm which is built from the case, but also the apparently generic and
abstract norm. In other words, the general norm is not previous, only
its text; the previously given general norm does not even exist, it is just
a fiction. What the legislator does, including the original constitutional
power, is to produce the legal or constitutional text, not the norm properly
said. The traditional syllogistic interpretation, which separates the creation
and application of law, is just one of the more general aspects of the
normative concretization.40
It should be recognized that many of the critical studies and jurists,
more linked to the hermeneutic schools, emphasize a larger changeability
of the norm before the concrete case. Even so, the doctrine is almost
unanimous that the starting point is the text of the norm, general and a
priori. That is to admit that the self-referential structure through which
legal dogmatics are presented by the modern constitutional State effec-
37 Bernard Jackson, “Truth or Proof?: The Criminal Verdict”, International Journal for
the Semiotics of Law (vol. XI, n. 33, 1998), 259 and 261.
38 Oliver Wendell Holmes Jr., The Common Law (Boston: Little Brown, 1938), 1. And
Karl Llewellyn, “Some Realism about Realism”, Harvard Law Review (vol. 44, 1931),
1222.
39 Arthur Kaufmann, “Problemgeschichte der Rechtsphilosophie”, Arthur Kaufmann
and Winfried Hassemer (Heidelberg: C.F. Müller, 1994), 163.
40 Friedrich Müller, Strukturierende Rechtslehre (Berlin: Duncker & Humblot, 1994).
150 JOÃO MAURÍCIO ADEODATO
can be concluded that, the less self-referring the social systems are, the
more interconnected will be the society’s several normative orders, the
more interdependent will be the spheres of religion, moral, economics, etc.
Whether this necessarily implies less complexity shall not be discussed
here.45
Surely there seems to be an intimate relationship between the develop-
ment of rhetoric and political freedom, a freedom directly proportional
to the number of people who may take part in discourse and speak
out, reducing the capacity of single individuals or groups to concentrate
political power and force their points of view.
C ONCLUSION
In effect, inside the many internal quarrels which divide the several
trends here called rhetorical (sophists, skeptics, cynics, nominalists, nihil-
ists, several struturalists and functionalists, deconstructivists), the ones
which put the rhetorical approach simply as the ideology of the victorious
faction in the struggle for power46 are argumentatively viable but in no way
unquestionable. It seems that the ethic of the rhetorical philosophies are
not necessarily the ones which, by seeing as doubtful any kind of content,
are useful to justify the imposition of compulsory homogeneous behavior
patterns on the whole society at large. This is anti-rhetorical. By refusing
behavior patterns which would be legitimate “in themselves” (an sich),
rhetoric gets along more easily with a generically comprehensive ethic,
more ready to tolerate different positions toward the world, as long as they
are not intended to be imposed on everyone at any price.
Facing the choice between a “terrorist” conception of autopoietical
legal dogmatics and some sort of universal consens as an optimistic
goal of discourse, the recognition of the enthymematic character of legal
discourse could help deal better with generalized dissens and lead to that
“. . . local consens, . . . eventually subject to resiliation . . . and limited within
time-space”.47
As some art of conclusion one may suggest that: 1. The syllogistic
fiction fits the dogmatization of contemporary law like a glove according to
which the decision comes from a previous general norm, a very functional
and effective argumentation; 2. In this sense, the fiction of autopoiesis
would be harmed by the explicit recognition of the enthymematic structure
of judicial reasoning, as long as the decision needs to be presented as if it
came from a functionally differentiated legal system; 3. Finally, the idea
of a correct and legitimate decision also seems to be highly functional,
satisfying atavistic human demands for safety, supported by an ethic which
is presented as true and cogent in the handling of conflicts.