The Notion of an Ideal Audience in Legal Argument

233 Pages·2000·4.68 MB·English

by  George C. Christie (auth.)

THE NOTION OF AN IDEAL AUDIENCE IN LEGAL ARGUMENT
Law and Philosophy Library
VOLUME45
Managing Editors
FRANCISCO J. LAPORTA, Department of Law,
Autonomous University of Madrid, Spain
ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden
FREDERICK SCHAUER, lohn F. Kennedy School of Government,
Harvard University, Cambridge, Mass., U.SA.
Former Managing Editors
AULIS AARNIO, MICHAEL D. BAYLESt, CONRAD D. JOHNSONt,
ALANMABE
Editorial Advisory Board
AULIS AARNIO, Research Institute for Social Sciences,
University ofTampere, Finland
ZENON BANKOWSKI, Centrefor Criminology and the Social and Philosophical
Study of Law, University of Edinburgh
PAOLO COMANDUCCI, University ofGenua, Italy
ERNESTO GARZON VALDES, Institut für PolitikwissenschaJt,
lohannes Gutenberg Universität Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
lustice Administration, lohn lay College ofCriminal lustice,
City University of New York
NEIL MacCORMICK, European Parliament. Brussels, Belgium
WOJCIECH SADURSKI, European University Institute,
Department of Law, Florence, Italy
ROBERT S. SUMMERS, School of Law, Cornell University
CARL WELLMAN, Department of Philosophy, Washington University
THENOTION
OFAN
IDEAL AUDIENCE
IN
LEGAL ARGUMENT
by
GEORGE C. CHRISTIE
Duke University,
Durham,
North Carolina, U.S.A.
SPRINGER-SCIENCE+BUSINESS MEDIA, B.Y.
Libmy of Congress Cataloging-in-Publication Data
Cbristie, George C. . .
The notion of an ideal audience in legal argument / by George C. Cbristie.
p. cm. -- (Law and philosophy libmy ; v. 45)
Includes bibliographical references and index.
ISBN 978-90-481-5445-6 ISBN 978-94-015-9520-9 (eBook)
DOI 10.1007/978-94-015-9520-9
1. Law--Methodology. 2. Reasoning. 1. Title. n. Series.
K213 .C487 2000
340' .ll--dc21
00-035745
ISBN 978-90-481-5445-6
Printed on acid-free paper
Ali Rights Reserved
© 2000 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 2000
Softcover reprint of the hardcover lst edition 2000
No part of the material protected by this copyright notice may be reproduced or
utilized in any form OI by any means, electronic or mechanical,
inciuding photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
To the memory
0/
Chaim Perelman
TABLE OF CONTENTS
Preface ix
Chapter 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1
Chapter 2. The Notion ofan Ideal Audience as an
Analytkal Tool ......................... 6
A. A General Philosophical Example-Illuminating
the Power ofRhetoric .................... 6
B. An Example from Legal Theory-Is a Predictive
Theory ofLaw Logically Possible? ......... 13
Chapter 3. What Are the Constraints that Can Be Imposed
on Arguments Addressed to an Ideal
Audience? . . . . . . . . . . . . . . . . . . . . . . . . . . .. 26
Chapter 4. Some Universal Features ofIdeal Audiences
in Legal Contexts ...................... 41
Chapter 5. Different Conceptions of the Ideal Audience-
A First Look . . . . . . . . . . . . . . . . . . . . . . . . .. 49
Chapter 6. Accounting for Differences in Perceptions of
the Ideal Audience-Some Preliminary
Observations . . . . . . . . . . . . . . . . . . . . . . . . .. 62
A. Competing Visions of the Way the State Should
Be Organized ......................... 63
B. Conflicting Views as to the Purpose of the State , . . .. 68
Chapter 7. Choosing Between Competing Visions of the
Good-the Case ofNecessity ........... '. 76
A. The Need to Choose . . . . . . . . . . . . . . . . . . . . . . . . .. 76
B. Choosing to Sacrifice the Property of Others ....... 81
1. Destroying Property to Save Human Life .... 81
2. Destroying the Property ofOthers to
Preserve One's Own Property and
the Taking and Consumption ofthe
Property ofOthers ................ 85
Vlll
C. Sacrificing the Life of an Innocent Person to Save
the Lives of a Greater Number of Innocent
Persons .............................. 89
Chapter8. The Conflict Between the General and the
Particular-Some Legal Background 108
A. Some Historical Background and Examples ....... 108
B. The Scope ofthe Modern Tort ofNegligence . . . . .. 117
Chapter 9. The Conflict Between the General and the
Particular-Theoretical Perspectives ....... 129
A. The Case for General Principles Put Forth by
Dworkin ............................ 129
B. Additional Factors Prompting the Search for
General Principles . . . . . . . . . . . . . . . . . . . .. 138
C. Counter-Arguments ......................... 143
Chapter 10. Ambivalent Attitudes with Regard to
Discretion . . . . . . . . . . . . . . . . . . . . . . . . . .. 152
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 152
B. An Analytical Framework ..................... 154
C. The Irresistible Urge to Narrow the Scope
ofDiscretion . . . . . . . . . . . . . . . . . . . . . . . .. 161
D. Structural and Ideological Factors Behind the
Urge to Broaden the Scope ofDiscretion ... 166
Chapter 11. Toleration ofDiverse and Even Inconsistent
Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . .. 180
Chapter 12. Conclusion.............. . . . . . . . . . . . . . . . . .. 193
Cases Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 200
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 205
Index . ............................................... 211
PREFACE
As the dedication ofthis book suggests, the genesis ofthis book arises from
my association with Cha'im Perelman. Because I was one of the few
Americans to comment on his TraUe de l' argumentation: la nouvelle
rhetorique, before it was translated into English, I was invited to a
conference celebrating the translation ofthat monumental work into English
that was held in August 1970 in Santa Barbara, Califomia at the Center for
the Study ofDemocratic Institutions, which was then under the directorship
of the late Robert M. Hutchins. From that beginning, Professor Perelman
and I developed a strong and warm friendship which was cemented when
Professor Perelman and his wife, Fela, came to North Carolina in 1979 as
a fellow at the National Humanities Center. I enjoyed the occasions on
which I was able to participate in the activities of the Centre National de
Recherehes de Logique which had been established, under Professor
Perelman's aegis, in Belgium. A trip to Brussels was always something to
which I looked forward. Since Professor Perelman's sudden and untimely
death in January 1984, shortly after he had been singularly honored by
being made a baron by King Baudouin, I have benefited greatly from my
participation in the programs of the Perelman Foundation which was
established through the generosity and efforts ofBaronne Fela Perelman;
a remarkable woman in her own right who has now sadly also passed away.
One of the aspects of Professor Perelman's work that I found most
intriguing was his frequent references to the "universal audience." It is a
source of great regret that Professor Perelman did not develop this notion
further during his life time, particularly in the context of legal
argumentation. For me, the notion ofa universal audience has proved to be
a very fruitful one. As will be seen in Chapter 2 of this book, it helped me
to see how the predictive theories oflaw ofthe legal realists were much less
incompatible with the positivist theories of people such as H. L. A. Hart
than has been commonly thought. Over the course of my academic career,
I have devoted myself to the study of subjects such as the nature of legal
reasoning, the place of principle in the doctrinal study and development of
the law, the scope of the defense of necessity, and that most difficult
subject, the scope of the discretion to be allowed to inferior judicial
decisionmakers. I came to see that these and other perennial topics oflegal
theory, which otherwise often seemed to be fairly discreet subjects of
IX
x PREFACE
inquiry, could be seen to have much in common if one were prepared to
recognize that legal argument, like all argument, is addressed to an
audience, and like all serious argument, ultimately addressed to a universal
or ideal audience. The task to which this book is devoted is to flesh out the
notion of a universal or ideal audience into something more concrete and
explore how different conceptions of this universal or ideal audience
influence legal argument and underlie many basic disagreements at both the
theoretical and practicallevels.
In the preparation ofthis book, I have profited from the generous help
of many people. I should like to acknowledge expressly the outstanding
assistance of the reference librarians of the Duke University Law School
Library and ofmy two student research assistants, Neal Gordon and Adam
Hoffman. To my two former students, Erika King and Michael Mirande,
who, despite the heavy demands of their professional lives, read and
commented on the entire manuscript in draft, I owe a special debt of
gratitude. Finally, I should like to thank Ms. Peggy House, ofthe Duke
Law School staff, without whose assistance in preparing and formatting the
text, this book would never have seen the light of day.
George C. Christie
Durharn, NC USA
January 2000
CHAPTERI
INTRODUCTION
The late ChaIm Perelman reminded us that all speech is directed towards
an audience. Perelman, of course, was primarily concerned with the
I
techniques of argumentation used in a public arena, but it does no injustice
to his basic thesis to take the notion of "speech" in its broadest sense so as
to include within it any mental activity which is carried on in something
like a verbal form. This would, of course, include what Perelman called
"self-deliberation" or indeed anything that we would be prepared to call
thinking. It is hard to imagine how we could think without some sort of
language that would serve as the medium of our thinking.2 The language
could be purely symbolic, such as would be the case if we were thinking
in a mathematical idiom or in a musical notation. If we are sane our
thinking follows the same patterns and logical structures as does our
conscious verbal speech. We are all familiar with thinking out loud, and
nobody thinks that thinking out loud is somehow different from just
thinking. Certainly when we try to describe our thoughts, we can only do
so in a verbal form. Indeed, there is the even more basic point captured by
Charles Taylor's observation that "[t]o study human beings is to study
beings who only exist in, or are partly constituted by, a certain language."3
Obviously then, if all speech is directed towards an audience and ifthinking
is a type of speech act, even our thoughts are audience directed. But who
is the audience to whom our thoughts are addressed and is there more than
one such audience? Is this audience or are these audiences the same as
those we address when we are actually speaking to other people?
Let us begin trying to answer these questions by first discussing who
is the audience of a person's ordinary speech. At one level the answer
seems obvious. The audience consists of the person or persons we are
C. Perelman and L. Olbrechts-Tyteca, THE NEW RHETORIC: A TREATISE OF
I
ARGUMENTATION §§ 2-11 (pp. 13-47) (J. Wilkinson and P. Weaver trans!. 1969),
originally published as Traite de I 'argumentation (1958) and hereinafter cited as THE NEW
RHETORIC. The section references are the same in the English and French versions; the
page references are to the English translation.
See B. Aune, KNOWLEDGE, MIND, AND NATURE 177-223 (1967).
2
C. Taylor, SOURCES OF THE SELF 34-35 (1989).
3
1