Chaïm Perelman's work and thinking
Chaïm Perelman's thinking, elaborated in the tradition of the teachings of the philosopher Eugène Dupréel at the École de Bruxelles, was the subject of a detailed article by Prof Marc Dominicy. In the note in the Nouvelle Biographie Nationale that he devotes to Chaïm Perelman, Prof Robert Legros speaks more specifically about the contribution the New Rhetoric made in the legal domain:
"The two works which lay out all of the doctrine known today under the name of "Perelmanism" and which go back over the evolution of Perelman's thought since his essay De la Justice published in 1945, will undoubtedly remain, on the one hand, Logique juridique, Nouvelle rhétorique (Paris, Dalloz, 1976. German, Dutch, Spanish and Italian translations), and on the other hand, the Traité de l'Argumentation, la nouvelle rhétorique (Ed. de l'Université de Bruxelles, 1970 [Presses Universitaires de France, 1958]; 4th edition, 1983) in collaboration with L. Olbrechts-Tyteca (English and Italian translations). Not forgetting other major publications: Rhétorique et Philosophie, 1952 (Italian translation); Justice et Raison, 2nd edition, 1972 (German, English, Italian, Spanish, Dutch, Polish and Hebrew translations); L'empire rhétorique, 1977 (German, Dutch and Japanese translations); Droit, Morale et Philosophie (Paris, L.G.D.J., 2nd edition 1976, preface by Michel Villey); Le raisonnable et le déraisonnable en droit — Au-delà du positivisme juridique (Paris, L.G.D.J., 1984, preface by Michel Villey).
The fundamental idea behind Perelman’s doctrine is that legal logic, notably that applied by the judge, does not get confused with formal logic. It is a specific logic. Law, and in particular the reasoning of the judge, just like other social sciences, morals and philosophy, eludes formal logic because it is not founded on certain truths. Law is not an exact science. The ultimate goal of legal science, which is neither demonstrative nor purely rational but which seeks to convince with a view to social peace through justice, is to end up with a reasonable solution, acceptable in the respect of values, the first of which is justice. The judge "has to" not just decide but also justify his decision. His reasoning doesn't develop in a syllogistic mode because in law the agreement on the premises is generally lacking. The trial is the sign and the reflection of a conflict either relating to the reality of the facts, and in particular to proving them, or to the interpretation of the law. This does not in any way imply that the judge’s decision and his justification are arbitrary or simply subjective, in other words illogical.
The justification and the decision which is reached should if not convince, at least persuade individual "audiences" (the parties, the senior judges, the world of lawyers) that the decision is reasonable, fair, acceptable. In order to achieve this the judge needs to reason, provide arguments in accordance with the teachings of the rhetoric, which people have been aware of since Antiquity, reasserted during the Renaissance but abandoned in the 20th century by the legal positivism which attempted to liken rights to law. Non-conventional legal logic is no less rational in the sense that its source is in reason. A logic of the reasonable which enables us to harmonise judicial decisions: those based on the text of the law, after the assertion, which, moreover, is often open to criticism, that this text is clear, and those which invoke the goal of the law, the legislator's intention, general interest, functional conception of law, its necessary coherence, its completeness, equity, the nature of things, the precedent, the customs, the general principles, the gap which needs filling, the antinomy to be resolved. Perelman’s New Rhetoric brings us the very order of the thought, serving a logic conceived out of concern for what is fair, reasonable, of judicial peace. Lawyers aspired to change after the reign of codes, the profusion of an ambitious sociology, the failure of the metaphysical natural law and the so-called certainties which had to provide them with the formal logic.
Perelmanism is different from positivism or purely Cartesian reasoning applicable in exact sciences, namely mathematics, in which anything which is only probable is as good as false and where only the demonstrations which, as of clear and distinct ideas, without the slightest vagueness, transform every judgement into an axiom which could convince the universal audience are seen as rational. If Perelmanism rejects the idea of a natural law in the traditional sense, a metaphysical natural law "coming from above", on the other hand, and in keeping with Paul Foriers’ ideas, it advocates the recognition of a "positive" natural law, free of the judicial practice relating to values confronted with the necessities of social life. Perelmanism also detaches itself, and just as much so, from the reasoning of experimental, inductive sciences, where the emphasis is placed on conformity with the facts. We do not extricate the rule from the observation of the real: what "is" is not necessarily what "should be", as though the elaboration of law were a phenomenon of pure observation, completely unrelated to man's aspirations. […]
The Traité de l’Argumentation sets out the argumentative techniques, their nature, the interaction of the arguments, and doesn't hesitate to recognise that, in law, even the argument of authority has its value: tradition, customs, the precedent, the doctrine. The judge has to argue to complete what is lacking, resolve antinomies, and interpret confused notions: three domains which were subject to in depth research at the Centre de Logique. We say that the judge is bound by the law, that he is the instrument, the servant of the law, faithful servant. […] Perelman never accepted that a positive law would be valid even if it were unfair: "the events which occurred in Germany after 1933 — he writes — have demonstrated that it is impossible to identify right with the law". The German judges refused to apply the Nazi-inspired laws which were theoretically still in force, in the immediate aftermath of the war. Perelman could write: "The superiority of legal thought over philosophical thought is that contrary to philosophical thought, which is satisfied with general and abstract formulas, law has to consider the solution to the difficulties which arise when you use these general formulas to resolve specific problems".
In Perelman’s thought, the notion of “audience” plays a major role: universal audience, individual audiences. He explains the reasons: "Given that argumentation is essentially about adapting to the audience, a knowledge of this audience is essential. In so far as the judge is looking for an acceptable solution for the litigants, their superiors and enlightened public opinion, he has to be aware of the dominant values in society, its traditions, its history, legal methodology, theories which are recognised in it, the economic and social consequences of a given stand and of equity in a given situation”. He insists upon the extreme sensitivity to values, on a justice which aims at consensus, legal peace, the respect of the maxim Audiatur et altera pars. Not in order to dominate but to try to achieve acceptance. The rhetoric put forward by Perelman is referred to as “new”. But in what way is it new? He explains this in the Introduction to his Treatise: “In the past the purpose of rhetoric was, above all, the art of speaking in public in a persuasive manner: it was thus about the use of spoken language, of talking, in front of a crowd gathered together in the public space, with the aim of getting that crowd to adhere to a thesis that had been presented to it. By this we mean that the purpose of oratory art, the adherence of minds, is the same as that of all argumentation. But we would be wrong to limit our study to the presentation of an oral argument and to limit the kind of audience we are addressing to a crowd brought together in one place”.
Finally, we could summarise Perelman’s legal thought by observing that his doctrine gives back the power of philosophical analysis to the pragmatic aphorism: law isn’t a science but there is a legal science. Perelman revived the ideal of justice, the cause of human rights, of freedom, equality; he made a major contribution to the fresh interest in philosophy of law, and legal logic in particular. Perelman was born in Poland and arrived in Belgium in 1925. In his adopted country he became a great citizen, an eminent professor, a thinker with a universal influence, the doctrine of which had an undeniable influence on the evolution of law — and in particular jurisprudence — in Belgium and abroad and whose immense and original work is a credit to the university and the country".
Source : Legros Robert, “Chaïm Perelman”, in Nouvelle biographie nationale, t. IV, 1997, p. 293. Translated from the French by Catherine Hall.