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Legal argumentation, as originally outlined by Aristotle under the notion of rhetoric (and topic) and by Chaïm Perelman under the new rhetoric since the 1950s, occupies the mid-area "between the evident and the irrational", i.e. between the analytical truths cherished by logic and mathematics, on the one hand, and any forms on sheer irrationality that evade the grip of rational argumentation, on the other. The key concept of the new rhetoric is that of the intended, universal audience. According to Perelman, the universal audience is a subjective thought construct of the speaker with the help of which he adjusts his arguments so as to convince the audience, while observing the general prerequisites of rationality. Because of the inherently subject-bound nature of the universal audience, it is argued that the universal audience is expressive of bounded rationality only, as modified by the diverse 'scenes", frames, settings, contextures, or approaches to the realm of reason and argumentation as conceived by the speaker. Aristotle's classic rhetoric and Perelman's notion of the new rhetoric both exemplify the ars disputationis, or the art and skill of argumentation and, possibly, reasonable disagreement among the participants to a dispute even after the full round of arguments presented. Aulis Aarnio's quest for value-cognitivism in his reading of Perelman's legal philosophy is open to critique, since it turns the realm of rhetoric into a domain of objective values, thereby leaving behind Aristotle's idea of rhetoric is an expression of an ars disputationis, or the art or skill of reasonable disagreement that takes place "between the evident and the irrational".

DOI: 10.1007/978-94-007-1872-2_4

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