International Journal For The Semiotics of Law 12: 135-152, 1999

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JOÃO MAURÍCIO ADEODATO

THE RHETORICAL SYLLOGISM (ENTHYMEME)


IN JUDICIAL ARGUMENTATION ?

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.

International Journal for the Semiotics of Law 12: 135–152, 1999.


© 1999 Kluwer Academic Publishers. Printed in the Netherlands.
136 JOÃO MAURÍCIO ADEODATO

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.

T HE E NTHYMEME AS R HETORICAL C ONCEPT

Besides those that accompany any philosophical investigation, some addi-


tional difficulties appear when antique authors and themes are studied,
such as changes in the sense of the words throughout history and tradition,
inaccuracies in the passage of the original to the modern vocabulary and
1 Katharina Sobota, Sachlichkeit – Rhetorische Kunst der Juristen (Frankfurt a. M.:
Peter Lang, 1990), 13 f.
2 Bernard Jackson, “Logic and Semiotics: Ontology or Linguistic Structure?”, Interna-
tional Journal for the Semiotics of Law (vol. XI, n. 33, 1999), 323.
3 That is not a privilege of the legal discourse in underdeveloped countries. See J. A.
Harris, “Recognizing Legal Tropes: Metonymy as Manipulative Mode”, The American
University Law Review (vol. 34, Number 4, Summer 1985), 1215–1229.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 137

even controversies on the trustworthy character of the actually available


copies, not to speak of the work’s authorship itself.4
The first aspect of our central theme to be fleshed out is the relationship
between the enthymeme and rhetoric. Perhaps because of the astonishment
before this human ability to speak, rhetoric appears associated with myth.5
The oldest references on the study of rhetoric come from Sicily, with
Corax and Teisias (V century B.C.), whose attention is mainly directed
to forensic eloquence, where one may also find the roots of the concept
of enthymeme. Later on the sophists, among them Gorgias, brought more
refinement to rhetoric and, “. . . in spite of the overall effect, with its heavy
and sometimes naive tone, producing an impression of something archaic
. . . ”,6 there is already a tradition behind that Gorgianic oratory, gath-
ering thinkers like Thrasymachus, Isocrates, Euenus of Paros, Antiphon,
Pamphilus, Callippus, Theodore of Byzantium, Licymnius, Theramenes,
Polycrates, Alcidamas and others. And a “rhetorical turn” in our days,7
taking rhetoric as a system of analysis, has a lot to do with its practical
results, specially concerning law and the study of judicial decisions.8
Aristotle begins his intellectual life in the context of a conflict between
Plato’s ontology and the sophists’ rhetoric. Despite being a disciple of
Plato, admitting that the aim of philosophy is truth and that its method
focuses on necessary demonstration, Aristotle recognizes the importance
of the reflections about the opinionative ambit of human experience, the
doxa, for which Plato did not seem to care much.9 Aristotle pays atten-
4 Concerning Aristotle’s writings the quotes refer to the following versions: The
Works of Aristotle, translated by A. J. Jenkinson (Prior Analytics) and W. Rhys Roberts
(Rhetoric), Great Books of the Western World, vols. 7–8 (Chicago: Encyclopaedia Britan-
nica, 1990). And The Work of Aristotle, translated by W. A. Pickard (Topics) (Cambridge:
Cambridge University Press, 1966). Concerning Plato’s works, The Dialogues of Plato,
translated by Benjamin Jowett, Great Books of the Western World, vol. 6 (Chicago:
Encyclopaedia Britannica, 1990). The numbers after the title of the work indicate the
subdivisions: book; chapter; number and letter of the page and the column from the
standard Berlin Greek text; finally, the number of the line in the official Greek version
(once pointed out).
5 Friedrich Nietzsche, Rhetorik (Darstellung der antiken Rhetorik; Vorlesung Sommer
1874), Gesammelte Werke, fünfter Band (München: Musarion Verlag, 1922), 290.
6 Antonio Tovar, “Introducción a la Retorica de Aristoteles”, Aristoteles, Retorica
(Madrid: Institutos de Estudios Politicos, 1971), XI, refering to Gorgias’ texts which have
reached our times, like Helen’s Eulogy and Palamedes’ Defense.
7 Richard Sherwin, “A Matter of Voice and Plot: Belief and Suspicion in Legal Story-
telling”, Michigan Law Review (vol. 87, 1988), 545.
8 Peter Goodrich, “Rhetoric as Jurisprudence: an Introduction to the Politics of Legal
Language”. Oxford Journal of Legal Studies, vol. 4 (Oxford: Oxford University Press,
1984), 88–122.
9 Renato Barilli, Retórica (Lisboa: Editorial Presença, 1985), 21 f.
138 JOÃO MAURÍCIO ADEODATO

tion to the democratic relevance of opinion, ways of thinking which are


accepted by all, by the majority, by the wise, and he is less averse to
rhetoric. One should not think of him as a democrat in the modern sense
of the term, though: after all, the zoon politikon, with his vital neces-
sities already taken care of, does not have to labor and therefore he holds
citizenship, while those who labor cannot act politically and be considered
citizens.10
Aristotle tries to give a more systematic treatment to rhetoric and,
consequently, to the concept of enthymeme. Aristotle’s rhetoric is under-
estimated and the same happens to his enthymeme theory, which is part of
it and will be examined below.
For Aristotle rhetoric is a techne. He classifies knowledge into theoret-
ical, practical and poetical. As theoretical sciences he places philosophy,
the natural sciences and mathematics; as practical sciences, politics and
ethics, the goals of which are good deeds. Aristotle says explicitly that
rhetoric is not the science of poetics, which is understood as the one that
produces its own object, there thwarting the sophistic.
The enthymeme is a technic which comes from dialectics and is trans-
posed to rhetoric. Aristotle’s dialectics is seen more as an argumentative
technique than as a theoretical science about argumentative structures.
Rhetoric resembles dialectics, on one side, and the sophistic arguments, on
the other. In other words, rhetoric takes care not only of what is persuasive,
but also of what seems to be persuasive, for “what makes a man a ‘sophist’
is not his faculty but his moral purpose”.11
In a definition which can not be accused of being tautological, Aristotle
presents the syllogism as “an argument in which, if certain statements are
presupposed, something different from those presuppositions necessarily
comes out of them”.12 Syllogisms are classified as apodictic, dialectical,
eristical and the enthymeme is called a rhetorical syllogism.
In spite of its being the core of persuasive speech, the enthymeme is not
the only technic. Rhetoric is not exclusively composed of enthymemes,
which work for the technical and emotionally more neutral parts of the
argument. Rhetoric still depends on the speaker’s credibility and on the
relationship of affection between speaker and listener, the other two more
important ways of persuasion, separate from the logical perspective of
the enthymeme theory. The enthymemes are rhetorical syllogisms because
they are formally or logically imperfect, their conclusions do not neces-

10 Hannah Arendt, The Human Condition (Chicago-London: The University of Chicago


Press, 1958), 79 f.
11 Aristotle, Rhetoric, I, 1, 1355b, 15–17.
12 Aristotle, Topic, 110a, 25–27.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 139

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

13 Plato, Laws, XII, 949b.


14 Plato, Gorgias, 452 f.
15 Friedrich Nietzsche (supra, n. 5), 288.
16 Peter Goodrich (n. 8), 99.
17 Antonio Tovar (n. 6), XXIX.
18 Peter Goodrich (n. 8), 105.
140 JOÃO MAURÍCIO ADEODATO

the enthymeme technically, specifically linking it to forensics and relating


it to the investigation of contradictions in argumentative speech.19
Loyal to his careful style and with a propensity for a way of thinking
that today could be called scientific, distinct from the passionate and some-
times poetical argumentation of Plato, Aristotle aims to place rhetoric in
the group of human studies which should compose the citizen’s formation.
He synthesizes platonism in his Rhetoric, once he seeks to provide ethical
dignity to science and dialectics, and even to sophistic, somehow making
concessions to the latter through studying the enthymeme.20 Investigating
rhetoric, although affirming that it is not possible to elevate it to the level of
philosophy, Aristotle tries, through internal distinctions, to separate good
and bad rhetoric, allowing the former.
And his example of bad rhetoric is precisely the forensic, destined to
move the spectator’s emotions, based in factual proofs, flagrantly fragile.
It is to be noticed that, in spite of his many critics, Aristotle maintains the
relationship between judicial rhetoric and rhetoric, so to speak, as science,
in a way legitimating even judicial rhetoric. At least he studies it.
The most evident characteristic of the enthymeme is the shortened
formulation. What could appear as a deficiency, from the logical patterns,
becomes efficiency from the point of view of the “material” rhetoric
(pragmatic role) and of the “formal” rhetoric (strategic role). Rhetoric is
driven to obtain immediate effects. Arguments presented with “scientific
form”, exhaustively demonstrative, may frequently appear unpleasant and
innocuous, intending universal and (relatively) permanent validity.
Nevertheless, perhaps for its logical rigorism, the syllogism seems to
have had larger weight in the western tradition, having been studied by
Anaximenes, Aristotle, Cicero, Quintilian, Augustine and many others.
Quintilian is one of those who refer to the enthymeme as an incomplete
syllogism.21 With that preponderance of the formal sense, the enthymeme
comes to be seen less as an argument form, that persuades in spite of
its absence of necessity and logical certainty, and more as an abbrevi-
ated syllogism. The material and formal senses, however, remain perfectly
compatible.

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

To contemporary eyes, the term “rhetoric” is employed in three basic


senses:22
1. Material rhetoric consists of language itself, the environment of
contextual significances in which human societies live; the material
rhetoric is the “linguistic fact”, the experience and the comprehensible
description of events, the human condition of meaning through speech.
This material rhetoric is reality itself, the “realities in which we live”,23
constituting the field of study of the practical and analytic rhetoric.
2. Practical rhetoric teaches how to behave before the material rhetoric,
the techniques and the efficient experiences to act, that is, to under-
stand, to argue, to persuade, to decide, in one sentence: to live in the
world –, including, for example, rhetoric as oratory.24
3. Analytic rhetoric is the study of the other two levels, in a double
abstraction, trying to systematize and understand the relationships
between the material and practical rhetoric, under an epistemological
perspective.

A RISTOTLE ’ S C ONCEPT OF E NTHYMEME

As mentioned, the concept of enthymeme is not clearly defined, having


many variations around a common nucleus. Aristotle is the first to inves-
tigate it in more detail and to build his own concept. Knowing the definition
of the enthymeme as a kind of syllogism, in which one of the premises or
even the conclusion is taken as evident, staying implicit, he doesn’t adopt
it under argument that it has a merely formal character and does not supply
the specific material difference he wishes.25
Thus Aristotle considers insufficient the classification of enthymemes
into first, second or third order, according respectively to the lack of the
major premise, of the minor premise or of the conclusion, a more common
definition until today. But the advice of maintaining in silence one of the
premises or the conclusion as a persuasive strategy is also mentioned by
him; so the idea of the formal structuring of the enthymeme is maintained,
22 Ottmar Ballweg, “Rhetorik und Vertrauen”, Kritik und Vertrauen – Festschrift für
Peter Schneider zum 70. Geburtstag (Frankfurt a.M.: Anton Hain Verlag, 1990), 34–45.
23 Hans Blumenberg, Wirklichkeiten, in denen wir leben – Aufsätze und eine Rede
(Stuttgart: Philipp Reclam, 1986).
24 Katharina Sobota, “Rhetorik: Form ohne Inhalt?”, Archiv für Rechts- und Sozialphilo-
sophie, vol. LXXV, Heft 4., 4. Quartal (Stuttgart: Steiner, 1989), 525–533.
25 Jürgen Sprute, Die Enthymemtheorie der aristotelischen Rhetorik (Göttingen: Vand-
enhoeck & Ruprecht, 1982), 68 f.
142 JOÃO MAURÍCIO ADEODATO

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

another enthymeme in a contrary sense: it is good to teach more wisdom


than is necessary, because the more wisdom the better. That type of
enthymeme allows a contradictory argument which, not rarely, comes
from the application of the same topos. On one side, “one who waits
will despair” (in Brazil, quem espera, desespera), on the other, “one who
waits will always get” (quem espera sempre alcança). Or, in an example
extracted from the juridical adages, dura lex sed lex can be contrasted with
summum jus, summa injuria.
Those enthymemes are based on verisimilitude, they are arguments on,
most of the time, what happens or does not happen, what is or is not, what
is or is not worth, always in the context of the praxis: two sentences –
antecedent and consequent – they get united in a whole through a third
element – the topos – which gives foundation and sense to the whole. The
result is formulated by the structure “if . . . then . . . ”, just as the syllogism
is.
Second group: the paradigmatic enthymeme receives its persuasive force
from examples. Those examples are added to other ones
by likeness and then, through induction, to the conclusive
general norm. Here the generalized consequent is less sure
for the receiver of the message than the already known
and accepted antecedent – the paradigmatic example.
An example from Aristotle: Dionysius aims at tyranny
because he is asking for a bodyguard, for Peisistratus
became a tyrant as soon as he got his bodyguard and
this was also the case with Theagenes at Megara.29 It
is concluded that, when he forms a bodyguard, the king
intends to be a tyrant.

This enthymeme type relates an historical fact, which is as such undis-


putably accepted, to a future fact which is only probable. The justification
of the whole argument is the generalization. Besides the characteristically
enthymematic relationship if . . . then . . . , the exemplificative enthymeme
also establishes a paradigmatic epagogical (inductive) relationship, whose
structure may be expressed like this: “if a and b; then c”.
Aristotle advises that the initial example should be a real fact, because
people in general are inclined to accept that events from the past will again
take place in the future; but real examples may be difficult to find and this
is not a necessary condition anyway. Thus are parables and fables rhetori-
cally very useful.30 Of course it is not enough, to contradict a paradigmatic
29 Aristotle, Rhetoric, I, 2, 1357b, 30–35.
30 Aristotle, Rhetoric, II, 20, 1393a, 25.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 145

enthymeme, to point out a contrary concrete case, it is necessary to show


that this opposite happens in most of the cases, although not in all cases,
for necessary validity is not intended.

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.

Well, if the enthymeme is formally defined as a syllogistic structure


which lacks one of the three elements, it is logically possible to build three
enthymemes starting from a complete syllogism, such as: (Premise 1) all
men are mortal; (Premise 2) Socrates is a man; (Conclusion) therefore,
Socrates is mortal. Enthymeme 1 (missing P1): (P2) Socrates is a man,
therefore (C) Socrates is mortal. Enthymeme 2 (missing P2): (P1) All men
are mortal, therefore (C) Socrates is mortal. Enthymeme 3 (lacking the
conclusion): (P1) all men are mortal; (C) and Socrates is a man. If two
components of the syllogism are not expressed, the remaining element is
called a sentence. When the sentence is placed at the end of an argument
or speech, expressing a climax, according to Quintilian it shall be called
an epiphonema.31
31 M. F. Quintilianus (n. 21), Liber VIII, 5–11. In the edition quoted here, vol. II, 207.
146 JOÃO MAURÍCIO ADEODATO

Already in the Middle Ages the technical meaning of the term


“enthymeme” can be so summarized:32
1. The topical enthymeme (from topos-topoi, commonplace) deduces
probable conclusions starting from generally accepted points of view.
Formally, as already mentioned, such enthymemes appear as imme-
diate conclusions of a premise: if P, then C (this boy is fat, therefore he
is well-tempered). This topical enthymeme can be expressed formally
as protasis and vice-versa.
2. The protasis enthymeme (from protaseis, premise) deduces syllogistic
conclusions which are formally rigorous, but these conclusions happen
to be only probable:
2.1. Because the premises are simply (2.1.1.) probable or (2.1.2.)
verisimilar, constituting the enthymemes ex eikóton. An example
of eikos enthymeme: premise 1 (P 1): this first characteristic (a) is
generally or in the widespread opinion accompanied by this other
one (b); premise 2 (P2): this object (o) is endowed with this first
characteristic (a); conclusion (C): this object (o) is very probably
endowed with that other characteristic (b).
2.2. In the case of the enthymeme by indications (paradeigma), the
point of departure consists of deducing premises from an actual
characteristic that, as it usually appears signaling the presence of
the other, allows one to verify the presence of a and induce the
presence of b, constituting the enthymeme ex signis. 2.2.1. The
enthymemes whose signs are necessary, called tekmeria, which do
not admit reply, already mentioned. 2.2.2. The contingent enthy-
memes, the indications properly said, semeia, semeion. In another
opportunity, following a different approach, as already seen, Aris-
totle classifies the enthymemes by indications in: 2.2.1., those that
go from the general to the particular; and 2.2.2., the ones that go
from the particular to the general.33
In the Prior Analytics, Aristotle classifies the enthymemes by
indications according to the three formal figures. First figure: (a
– b, o – a, therefore o – b): having milk is indication of mater-
nity, this woman is lactating, therefore, this woman gave birth to
a child. Second figure (b – a, o – b, therefore o – a): this woman
is pale, whoever is pregnant turns pale, therefore this woman is
pregnant. Third figure (o – a, o – b, therefore a – b): Socrates is
good, Socrates is wise, therefore whoever is good is also wise.
32 Gert Ueding (hrsg.), Historisches Wörterbuch der Rhetorik, Band 2 (Darmstadt:
Wissenschaftliche Buchgesellschaft, 1994), 1197–1222.
33 Aristotle, Rhetoric I, 2, 1357b, 1–10.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 147

The tekmeria is the only incontestable enthymeme, but the other


two may also be used with success in a speech.
3. The formal sense: enthymeme as a syllogism which lack one of the
premises or even the conclusion.
4. A sentence with justification, a based statement (gnome).
There surely are confusing aspects in some of these definitions, for
instance: 1. Paradigm and enthymeme are different concepts, but there is
the paradigmatic enthymeme; 2. The topic enthymeme may be presented
as protasis and vice-versa. 3. The tekmeria enthymeme seems to be as
irrefutable as the dialectical syllogism (demonstrative), which Aristotle
opposes to the rhetorical syllogism (the enthymeme).
Having quickly summarized these theories on the enthymeme, concen-
trated on Aristotle’s thought, let us see how they could be useful to a
contemporary theory of law.

T HE R ENEWED R ELEVANCE OF THE E NTHYMEME


FOR A T HEORY OF J UDICIAL A RGUMENTATION

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

Once “les grand récits” do not seem to function properly in post-modern


society, the legitimation of science and government becomes a problem.
On one hand, the criteria based on operational features and efficiency are
technological and cannot help defining truth or justice; on the other hand,
the belief in a consens generated by discussion and directed by reason
ignores the heterogeneity of the “jeux de langage”.35
The dogmatic juridical form is the preponderant model of law organ-
ization in the modern State. Of course the dogmatic ways of organizing
and distributing law have not always existed, configuring a historical
phenomenon without precedents. Although this process of dogmatization
is not at all fully achieved in most contemporary societies, and perhaps will
never be, trying to develop it seems to be a worldwide tendency of State
governments in our times. But the process demands a relatively stable and
complex society, with an efficient bureaucratic apparatus and other specific
characteristics that will not be treated here. Among them are the pretence
of monopoly in the production of law, on the part of the modern State, and
the relative emancipation of law in relation to the other normative orders,
the autopoiesis.36
Such a historical and ideological development of law seems to be
guided by that syllogistic mentality, the form of thinking and applying law
which seems more appropriate to dogmatic law, the law that inevitably
decides, always referring to a norm a priori fastened to the autopoietic
rules of the own system. It seems that, as affirmed in the beginning of this
work, in spite of the larger abstraction and sophistication conducted by
new trends of positivism, it remains the conviction or the prejudice that all
concrete rulings are based on a previous general norm. Even though they
are in the minority, however, there have been critics of these dominant
conceptions.
The current legal hermeneutics has departed from an already classical
debate which may be didactically summarized in the dichotomy subsump-
tion versus casuistry. The subsumptive conception is intended to arrive
at a safe, sure and correct conclusion, the objective of the interpretation,
that is, the decision. The casuistic, more skeptical perspective, understands
that the general norm does not produce the decision or even build the
frame inside of which the interpreter acts. The norm just serves as a

35 Jean-François Lyotard, La Condition Postmoderne. Rapport sur le Savoir (Paris:


Minuit, 1979), 8.
36 To the concepts of autopoiesis and allopoiesis, see, among many, Humberto R.
Maturana e Francisco J. Varela, Autopoiesis and Cognition. The Realization of the Living
(Dordrecht: D. Reidel, 1972); and Niklas Luhmann, Soziale Systeme. Grundriß einer
allgemeinen Theorie (Frankfurt a. M.: Suhrkamp, 1984), passim.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 149

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

tively corresponds to reality. This enables a universal rationalization that


hides the irrational character of reality, casual and unrepeatable,41 but it
has been very effective in the treatment of the conflicts.
It seems more appropriate to think that the foundation of the juridical
decisions are topoi, more or less indefinite opinions to which, nevertheless,
the great majority lends its adhesion, at the same time in which each one
or each social group fills the inevitably obscure and ambiguous points
with their own personal opinion, based on presuppositions that remain
implicit as if they were evident. Exactly those vague and indefinite topoi,
present in the State laws, enable the social control by the State and its
legal dogmatics in a highly complex society. Examples are the so called
“undetermined legal concepts”, like common good, honest woman, good
faith, administrative probity, property, credit, indecent exposure and so on.
It is a fact that when one deconstructs the legal speech, especially in
what concerns judicial decisions, the allopoietic basis of the decisions
turns up very clearly. In this way the economic, gender, national subsys-
tems, or friendship relations, they all interfere in the legal subsystem. For
example: the proportion of people living below the poverty level in prison
is much higher than the same proportion in the universe of the whole
Brazilian society, regardless of the parameters to define poverty. This
confirms the influence of money in the judicial system and may represent
a menace to the legitimating effect of the concrete decision.
Only more primitive systems, in terms of social complexity, are able
to maintain this allopoietic character and to permit themselves the luxury
of clearly expressing the effectively applied rules in judicial decisions
and social control.42 But even in more simple societies, not all norms are
allowed to come to light; in the normative speech of a primitive tribe like
Aisat-naf, in the South Pacific islands, there are terms that, “in spite of their
lack of meaning, have a function to carry out in the daily language of the
people”, every community has its tû-tû.43 Those societies do not develop a
dogmatic procedure of control and legitimation because the legitimacy is
already guaranteed by a previous pact, a power agreement about normative
contents or other extra-dogmatic forms of reduction of complexity.44 It
41 According to Nicolai Hartmann, every real being is unique, individualized, nothing is
equal in the real world, constituting one of the insurmountable forms of irrationality. See
Nicolai Hartmann, Zur Grundlegung der Ontologie (Berlin: Walter de Gruyter, 1965), 81 f.
and João Maurı́cio Adeodato (n. 34), 108.
42 Katharina Sobota, “Don’t Mention the Norm!”, International Journal for the Semi-
otics of Law (vol. 4, n. 10, 1991), 45–60.
43 Alf Ross, Tû-Tû (Buenos Aires: Abeledo Perrot, 1976), 9.
44 Niklas Luhmann, Legitimation durch Verfahren (Frankfurt a.M.: Suhrkamp, 1983),
155 f., specially notes 5 and 11.
THE RHETORICAL SYLLOGISM (ENTHYMEME) IN JUDICIAL ARGUMENTATION 151

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

The objective here is simply to point out the misunderstanding of starting


from the idea of the demonstrative, explicit and rationally cogent syllo-
gism, that would be a logical instrument for the study of positive law,
as is attempted by traditional legal dogmatics. The argumentative struc-
ture expressed by the enthymeme theory seems more capable of enabling
understanding contemporary law, revealing, for example, that “scientific”
pillars like the unit of the state legal order, the judge’s neutrality or the
objectivity of the law constitute, in the long run, mere discursive strategies.
Besides the epistemological part, another important problem is to
know whether the rhetorical perspective necessarily implies an anti-ethical
posture. In the first place, law constitutes one of the species of the genus
“ethic” and so it necessarely assumes ethical contents, whatever they may
be, and there is no such a thing as an “unethical law”; positive law may be
against (anti-) this or that ethical principle but it will never be without (a-
un) ethic. In this non-ontological sense, without definitive ethical contents,
rhetoric only refuses the postulate according to which those contents would
be stablished by a “natural”, “rational” or any other external parameter,
sufficient to gauge or rate the epistemological or ethical correctness of law,
whose legitimacy would lie beyond the juridical discourse itself.
In the second place, besides serving to immunize against presumed true
or assumed irrefutable discourses, which aim at universal recognition, a
more defensive, deconstructive or skeptical ethic may render possible a
constructive ethic, derived from the rhetorical point of view, which could
be called an ethic of tolerance.
45 João Maurı́cio Adeodato, “Brasilien. Vorstudien zu einer emanzipatorischen Legitim-
ationstheorie für unterentwickelte Länder”, Rechtstheorie, N. 22, Heft 1 (Berlin: Duncker
und Humblot, 1991), 108–128.
152 JOÃO MAURÍCIO ADEODATO

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.

Rua Neto de Mendonca 121 – apt. 401


5205-100 – Recife PE
Brasil
E-mail: adeodato@npd.ufpe.br

46 As suggested by Franz Wieacker, “Zur Topikdiscussion in der zeitgenössischen


deutschen Rechtswissenschaft”, Xenion. Festschrift für Pan J. Zepos, vol. I (Athen –
Freiburg i.B. – Köln: 1973), 401.
47 Jean-François Lyotard (n. 35), 104–107.

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