The Dynamics of Stasis: Classical Rhetorical Theory and ...

American Journal of Jurisprudence Article 8

Volume 34 | Issue 1

1-1-1989

The Dynamics of Stasis: Classical Rhetorical
Theory and Modern Legal Argumentation

Hanns Hohmann

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THE DYNAMICS OF STASIS: CLASSICAL RHETORICAL
THEORY AND MODERN LEGAL ARGUMENTATION

HANNS HOHMANN*

THE TITLE OF THIS ESSAY is not as paradoxical as it appears at first.
While the Greek stasis and its Latin equivalent status' do indeed
have the "static" connotations which these terms invoke in the
modern mind, they also refer to a stance taken in a fight, and stasis
even to civil strife itself.2 It was this combative element which made
these words suitable for classical rhetorical theory,3 where they were
used to denote typical recurrent issues raised in the course of debates.
I will examine traditional stasis theory both to ascertain what it can
reveal to us about the internal dynamics of arguments, and to explore
whether these can in turn point to dynamic elements within the stasis
system as a whole which could lead to its further development. 4

* For David Daube on his eightieth birthday. I thank Professors Robert H.
Cole of the School of Law (Boalt Hall) and Arthur J. Quinn of the Department of
Rhetoric at the University of California, Berkeley, for commenting on earlier drafts
of this article.

1. Another term used frequently in Roman rhetorical treatises is constitutio,
see e.g., Cicero, De Inventione (Inv.) 1.8.

2. For a discussion of political uses of the term, particularly in connection with
the criticism of Athenian demagogues, see M.I. Finley, Democracy Ancient and
Modern (rev. ed. 1985), pp. 44f.

3. See J.Martin, Antike Rhetorik (1974), p. 29. Cicero speaks of conflictio in
this context (Inv. 1.8.10). Quintilian quotes this in Institutio Oratoria(Inst.) 3.6.4;
in Inst. 7.1.8 he refers to the joining of the issue as pugna (fistfight, battle).

4. For a discussion of parallels between the theory of status and modern
German and Austrian theoretical conceptualizations of the criminal act, see F.
Horak, "Die rhetorische Statuslehre und der moderne Aufbau des Verbrechensbe-
griffs," in F. Horak and W. Waldstein (eds), Festgabe fir Arnold Herdlitczka
(1972), p. 121 ff. Horak emphasizes the difference in aim between advocates on the
one hand and judges and scholars on the other, when they devise and use conceptual
systems such as that of the status; but it may. be useful to remember that judges
and scholars are also always advocates, even if not in the service of particular
parties. Following Horak, and indeed much of ancient status theory itself, A Braet,
"The Classical Doctrine of status and the Rhetorical Theory of Argumentation,"
20 Philosophy and Rhetoric (1987), p. 79, maintains a primary focus on criminal
law, pointing out parallels with modern Netherlands criminal procedure. The extent
to which rhetoric in general and status theory in particular may have influenced the
work of Roman jurists is a matter of controversy; for a recent overview and
assessment of the debate see F. Wieacker, Romische Rechtsgeschichte I (1988), p.
662ff.

172 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

I.

The basic stasis system which is most widely reflected in the
rhetorical treatises of antiquity is generally attributed to Hermagoras
of Temnos.5 It was developed primarily with legal disputes in mind,
an emphasis shared by most classical rhetorical writings. The system
served as the core of the process of rhetorical invention in which the
orator identified the main issues on which the speech 6 he was
composing would have to center, and in which he found7 the arguments
which would be most suitable for his efforts to persuade his audience.'

Hermagoras divided the staseis or statuse into two basic groups, the

broadly non-legal status generales and the specifically legal status

5. Fl.ca. 150 B.C.; see generally D. Matthes, "Hermagoras von Temnos 1904-
1955," Lustrum, 3 (1958), p. 58, which gives a broad overview of the relevant
literature up to that date. For a somewhat different perspective see K. Barwick,
"Zur Erklarung und Geschichte der Staseislehre des Hermagoras von Temnos," 108
Philologus (1964), p. 80, and K. Barwick, "Zur Rekonstruktion der Rhetorik des
Hermagoras von Temnos," 109 Philologus (1965), p. 186. A more recent discussion
of Hermagoras' theory can be found in A. Braet, De klassieke statusleer in modern
perspectief (1984), p. 36ff. For an overview of subsequent developments see ibid.,
p. 107ff. Cf. also M.C. Leff, The Frozen Image: Sulpicius Victor and the Ancient
Rhetorical Tradition (Ph.D. dissertation, University of California: Los Angeles,
1972), p. 284ff., for an appendix covering the status system in Hermagoras, Cicero's
De Inventione, the Rhetorica ad Herennium, and the lesser Latin rhetoricians.

6. Classical rhetoric was concerned with speeches rather than discussions (the
province of dialectic, discussed e.g., in Aristotle's Topica), but the dialectical element
was present insofar as rhetoric guided the speaker in finding arguments on both
sides of any issue, and prolepsis and refutatio, the anticipation and rebuttal of the
opponent's arguments, were discussed as important elements of argumentative ora-
tory. A. Braet, op. cit., n. 4, p. 90 emphasizes the dialogical implications of status
theory, insofar as it sees every argument as part of an ongoing debate between
opposing parties; but since the "single, isolated orator pursuing persuasive objectives
with a passive audience," whom Braet locates at the core of the New Rhetoric
developed by Ch. Perelman and L. Olbrechts-Tyteca (see n. 15, infra), will also
regularly embody elements of a virtual debate in his speech, the contrast between
monological and dialogical persuasion is not a strict one. Hamlet's famous soliloquy
illustrates that even self-persusasion entails an internalized debate, and Braet indi-
rectly admits the fluidity of the distinction between monologue and dialogue when
he states that even one person may embody the roles of proponent, opponent, and
judge in a debate.

7. This is the literal meaning of invenire, from which inventio is derived.
8. Aristotle, in his Ars Rhetorica (Rhet.), distinguishes three aspects of every
speech situation, namely speaker, subject, and hearer (Rhet. 1.3.1), to which the
arguments must be adapted.
9. For a general overview see Martin, op. cit., n. 3, p. 28ff.; G. Kennedy, The
Art of Persuadion in Greece (1963), p. 305ff.; R. Nadeau, "Classical Systems of
stases in Greek: Hermagoras to Hermogenes," Greek, Roman and Byzantine Studies,
2 (1959), p. 53; G. Kennedy, Greek Rhetoric under Christian Emperors (1983), p.
73ff.

HANNS HOHMANN

legales. Each of these two groups was subdivided into four individual
status or issues.

The general issues were:
The status coniecturalis, dealing with the ascertainment of facts;
in a criminal case,' 0 for instance, the defendant or his representative
might argue that he did not actually commit the act of which the
prosecutor accused him, that he never took a vessel from the temple.
The status definitionis, concerning the precise characterization of
the facts; thus the defendant might argue that even though he took
the vessel, he nevertheless did not commit sacrilege because it was a
vase deposited in the temple by its private owner, rather than a
sacred object.
The status qualitatis, focusing on the possibility of justification or
excuse; the accused could perhaps plead that he took the sacred
vessel in order to pour hot oil on enemies attempting to scale the
city wall, or that he did not know that it was a sacred object.
The translatio, raising procedural objections; it might be possible
to argue that the case was not properly before the court, for instance
that the case had been brought too many years after the incident,

or that an Athenian court had no jurisdiction over a sacrilege
committed in Corinth.

The legal issues centered around the interpretation of laws and
other legal documents"; they were:

Scriptum et voluntas, based on the argument that the wording of
the law, its literal meaning, did not properly reflect the intent of the
legislator, and that in accordance with the latter and principles of
equity' 2 the law should not be applied.

10. Criminal cases were by far the major topic of discussion in the portions of
rhetorical treatises devoted to legal argumentation, presumably because they offered
the best opportunities for the use of oratorical skills, and would also likely be more
comprehensible and interesting to students, a predilection apparently shared by
modern television audiences: Perry Mason will hardly argue antitrust cases. For a
discussion of Cicero's speech Pro Cluentio, which focused strongly on the status
coniecturalis, see C.J. Classen, Recht-Rhetorik-Politik. Untersuchungen zu Ciceros
Rhetorischer Strategie (1985), p. 15ff.

11. In this essay I will follow the primary focus of the rhetorical treatises on
canonically formulated legislative rules; discussions of precedent are relatively rare
and short (see e.g., Quintilian, Inst. 5.2). But I think that the interpretive problems
arising in that context can be systematized as well along the lines here discussed,
which I hope to do on another occasion. For a modern discussion of the interpre-
tation of precedent see W. Twining & D. Miers, How To Do Things With Rules
(2nd ed., 1982), p. 266ff.; see also M.P. Golding, Legal Reasoning (1984), p. 102ff.
For a discussion of the role of legal interpretation in Cicero's speech Pro Caecina
see B.W. Frier, The Rise of the Roman Jurists (1985), p. 171ff.

12. Equity is here to be understood as a set of principles more important than

174 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

Leges contrariae, adducing a law which stood in some conflict
with the statute relied on by the opponent in order to modify or
supersede that statute.

Ambiguitas, pointing to a choice between two or more disparate
meanings of the law, and arguing for the particular reading most
suitable for one's own persuasive aims.

Ratiocinatio,3" conceding that a law was not applicable to the facts
at hand if read literally, but contending that it should be applied
analogously because of a substantial similarity between the situation
contemplated by the statute and the present case.

For each status, rhetorical treatises would list different arguments
which could be used on either side of the issue by the opposing
parties in a case.

While the stasis system whose broad outlines have just been described
generally served as the starting point for discussions of status, many
authors took issue with several of its features and deviated from it
in different ways.' 4 Looking at the basic categories, we can identify
two major sources of possible confusion and dissension:

First, what are the relationships between the issues within the status
rationalesand status legales?

How is the definitio different from qualitas? Do not both issues
deal with the legal definition of the act in question, and do not both
concern the legal quality of the act? Similarly, can one really distinguish
between coniectura and definitio? Are not both concerned with the
ascertainment of facts, and is not the same true for the status
qualitatis? Is not definition also required in describing the basic act
in question, and does not that description also impart to us something
about the quality of the act? Is the translatio related to the other
three issues in the same way as they are related to each other? Is it
really similar enough to them to belong to this group?

Can the four legal issues really be distinguished from each other?
Are they not all based on the first of them, the discrepancy between
letter and intent? Is not the intent of the legislator the major argument
in determining how conflicts between laws, ambiguities in their

adherence to the literal meaning of written laws; the precise theoretical status of
these principles, i.e., whether they are part of the law in a larger sense, or completely
outside and above the law, is not always clear; I will return to this issue in the
discussion of the status qualitatisin section III, 3 (infra.).

13. Also called syllogismus.
14. See Martin, op. cit., n. 3, p. 30ff; for a comprehensive discussion of these
controversies by a direct participant see Quintilian, Inst. 3.6. Cf. also the references
cited in n. 5, supra.

HANNS HOHMANN

wording, and the question of their analogous application are to be
resolved?

Second, what is the relationship between the two groups of issues?
Are they really separate, or are not rather the status legales a sub-
group of the status rationales?Are not the latter all concerned with
the interpretation of the law, which in turn determines the legal
definition of the act, thus indicating that the legal issues are species
of definitio? Or should we not say that the interpretation of the law
is necessary to ascertain the legal quality of the act, which would
make the legal issues subcategories of qualitas?
On the other hand, should we not place definitio, which after all
concerns the legal characterization of the act, among the status
legales? And could not the same reassignment be urged for qualitas
for the same reason? Does not translatioreally turn on legal questions
as well, and should it not thus also be placed in the group of legal
issues?
As we no longer consciously use.the classical stasis system, the
apparent breakdown of its categories would seem to be of little
concern to us. We might consider such problems as yet another
argument for regarding classical rhetoric as a historical curiosity
whose debates may be of some antiquarian interest, but whose inept
conceptualizations are devoid of any contemporary practical or
theoretical relevance, to be shrugged off in accordance with the
enlightened judgment of history."5
The reader will know by now that I do not propose to follow that
course. Instead I will contend that an effort to clarify some of the
issues of stasis just raised will be worthwhile for two reasons:
I think that these problems of categorization are not merely
symptoms of a lack of theoretical penetration, but rather important
signs reflecting the dynamics of argumentation. In exploring these
symptoms we may gain theoretical insights into the internal structure
of arguments and its relationship to the development of the debate
in which they function.
Furthermore, once the internal structure of arguments has been
clarified, it can be used to generate a useful systematization of basic

15. For a discussion of the anti-rhetorical reform movement associated with
Petrus Ramus (Pierre de la Ram6e, 1515-72), see W.J. Ong, Ramus, Method, and
the Decay of Dialogue (1958); Ch. Perelman & L. Olbrechts-Tyteca, Traite de
l'Argumentation. La Nouvelle rhktorique (2nd ed., 1970), p. Iff. point to the
influence of Descartes (1596-1650) on the decline of rhetoric. (An'English translation
of the latter book has appeared in 1969 under the title The New Rhetoric.A Treatise
on Argumentation).

176 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

types of arguments in law as well as in other fields, a systematization
which may provide us with some practical benefits by allowing us to
gain a better overview of existing arguments, as well as helping us
in developing new arguments.

II.

A good starting point for a more systematically unified
reconstruction of the stasis system is a closer inspection of the status
rationales.The doubts raised about the fourth among them, translatio,
are indeed amply justified. It does not deal with the primary substantive
issue at all, but rather shifts the ground from the act which forms
the basis of the lawsuit, e.g., the alleged crime, to the act of bringing
the suit. That translatio is foreign matter here is also indicated by
its position at the end of the list, as an afterthought. The logic of
the arrangement of the other three issues is subsidiary: if one can
argue that the act was not committed, then there is no need to argue
the other points; if on the other hand one cannot deny the act, then
there is still the possibility that one may be able to argue the next
issue, etc. 16 Following the same logic, translatio should be placed at
the beginning: once a procedural obstacle has been raised, the
substantive issues need no longer be discussed. As a matter of
economy, procedural issues are therefore explored first in legal
proceedings. 17 The best argument that can be made for placing
translatio among the status generales is that it at least fits slightly
better here than among the status legales, because at least it marks
a stage in a sequence of possible responses to a legal attack, and is
insofar similar to the other three general issues, while on the other
hand it does not at all contribute to the resolution of interpretive

16. The presuppositional relationship between the first three status is discussed
by F. Horak, op. cit., n. 4, p. 126, and A. Braet, op. cit., n. 4, p. 83. For an
account of a similar hierarchy of levels of argument in the Arabic model of rational
discussion see A. Taha, "Arab Dialecticians on Rational Discussion," in, F.H. van
Eemeren, R. Grootendorst, J.A. Blair, and C.A. Willard (eds.), Argumentation:
Across the Lines of Disciplines (1987), p. 73ff.; Taha points to parallels between
this model and Aristotle's dialectic as presented in the Topics.

17. In this essay I discuss the systematic ordering of legal arguments forward
from the point at which the substantive issue is joined. The precise place of translatio
would be ascertained by extending the system backwards to preliminary questions,
which include whether the issue at hand is a legal issue, whether there is any issue
at all, what kind of argumentation should be used, what is the proper time and
place for discussing the issue, etc. This cannot be pursued here.

HANNS HOHMANN

problems,' 8 and has thus nothing in common with the other legal

issues, other than its relation to the law, which of course it shares
with all issues.' 9

In his Orator, Cicero drew the consequence from this state of

affairs, and limited the status generalesto three: coniectura,definitio,
qualitas.20 Quintilian, after an exhaustive discussion of stasis theory,

endorsed this approach, as did many others. 2' The three questions

corresponding to these status are: "whether a thing is, what it is,

and of what kind it is. ' The difference between the latter two

"22

questions is somewhat difficult to discern, as I mentioned above, but

here M. Antonius' lapidary formulation of these three issues is more
helpful: "Done or not done, legal or illegal, good or bad. ' 23 While

both ius and bonum are standards by which the factum is measured,

ius connotes a more conventional, limited standard, while bonum,
which often goes together with aequum, 24 indicates a more absolute,

broader standard which stands above the ius, supporting it if both

are in consonance, correcting it if they are not, just as the ius can

approve or disapprovean action, depending on the act's compatibility

with the standard.

18. It may of course involve interpretive issues; the scheme here developed

becomes applicable by substituting for the question" did the defendant commit a
criminal act" the question "did the prosecutor bring a proper suit." Insofar the
scheme, though developed in considering substantive legal issues, is applicable to all
legal issues. Likewise the status coniecturalis, here discussed as part of a legal

argument, and as such involving particularrules, will in its general form appear in
many other kinds of arguments, etc. One might speak of loops in the system here.

19. Quintilian, Inst. 3.6.83 portrays the retention of the translatioin its wonted

place as a concession to the limited understanding of beginners.

20. Cicero, Orator 14.45; cf. also his Topica 21.82; for a discussion of the
treatment of the quaestiones (another term for status: see Quintilian, Inst. 3.6.2) by

medieval authors, see G. Otte, Dialektik und Jurisprudenz(1971), p. 156ff.
21. Quintilian, Inst. 3.6.80; see also Martin, op. cit., n. 3, p. 43f.
22. Quintilian, Inst. 3.6.44 & 80, referring to Cicero, Orator, 14.45.

23. "factum non factum, ius iniuria, bonum malum" (quoted by Quintilian,
Inst. 3.6.45). H.E. Butler translates "/us iniuria" as "just or unjust" (Loeb edition,
p. 433), which is correct insofar as this refers to what Aristotle calls legal as opposed

to equitable justice; but I think that in modern terminology this is more apt to be
called "legality," as the modern notion of "justice" corresponds more closely to
Aristotle's equitable justice (see Aristotle, Nicomachean Ethics 5.1.8ff.).

24. It must be repeated that the position of equity is ambiguous; see Cicero,

Inv. 1.11.14 where the qualitative issue is subdivided into iuridicalisand negotialis,

and both are said to be dealing with aequitas, the former to be determined as a
matter of the nature of the aequum, the latter as a matter of ius by the jurisconsults.
We thus have apparently an equitable equity and a legal equity; that Antonius had

in mind the former when he spoke of bonum is strongly indicated by the fact that
he distinguished the question of bonum from that of ius.

178 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

Now these three status, even though they are primarily discussed
in connection with legal issues, are by no means limited to them.
Antonius and Quintilian are quite clear on this point, stating that
these three "form the ground of every speech ' 25 and are the "things
which enquiry is made on in every case . . . These three points
once ascertained, there is no further question to ask. These heads
cover both definite and indefinite questions. 26 One or more of them
is discussed in every demonstrative, deliberative, or forensic matter.' '27
That this should be so, we are told confidently, is true because
"Nature herself imposes this upon us."128 Perhaps the broad
applicability of these three status generales will become even clearer
when they are rephrased in terms which are no longer as closely
wedded to the situation of the criminal trial which gave rise to the
elaboration of the classical stasis system.

In each of the three generaof oratory, the deliberative, the forensic,
and the demonstrative, 29 the speaker undertakes to persuade his
audience to accept a particular kind of assertion: that, to use Aristotle's
terminology, a proposal is "expedient or harmful" (deliberative), an
act is "just or unjust" (forensic), or that something or somebody is
"honorable or disgraceful" (demonstrative). 0 We can now say in
general terms that in each case the speaker's assertion will be
supported, explicitly or implicitly, by three kinds of claims which
correspond to the three status generales:

(1) That something exists of whose precise nature the audience is

to be persuaded.
(2) That according to applicable standards this existing thing belongs

to a certain category which indicates to the audience the proper
response to the thing.
(3) That these applicable standards themselves and the categorization
based on them are justified by a higher standard.
At first sight we might be inclined to say that on the first level of
the argument we are dealing with facts, on the second with rules,
and on the third with values; or we might say that the first is

25. Quintilian, Inst. 3.6.45, quoting M. Antonius.
26. Definite questions concern particular persons, events, places, etc., while
indefinite questions are general (see Quintilian, Inst. 3.5.7).
27. Quintilian, Inst. 3.6.80f. The interrelationship between the genera of oratory
(deliberative, forensic, epideictic [also called demonstrative]) are emphasized quite
clearly already by Aristotle, Rhet. 1.3.5.
28. Quintilian, Inst. 3.6.80.
29. Also called epideictic.
30. Cf. Aristotle, Rhet. 1.3.5 (Loeb edition, tr. J.H. Freese).

HANNS HOHMANN

concerned with verification, the second with interpretation, and the
third with justification. But to choose any one such characterization
for each level would be misleading for two reasons: no one term
would fully exhaust all the aspects of each level, and no one term is
exclusively limited to one level. The three issues are general not
merely insofar as they occur in all three genera of oratory; they are
also general insofar as all three occur within each issue. These
interrelationships between the different levels of argumentation account
for the difficulties we encountered above in discussing the problematic
distinctions between the different status.3' Because each aspect of a
complete argument, be it the conjectural, definitional, or qualitative
aspect, can itself be seen as an assertion in its own right which
implies the same three kinds of claims as does the overall argument
as a whole, and this process of analysis can be continued further.

The three status generales can therefore be regarded as particular
manifestations of three general dimensions of argument. I propose
to call these dimensions operative, regulative, and optative respectively,
trying to introduce artificial terms which are relatively free from too
specific connotations which would associate them too closely with
any particular arguments, but which do still have some indicative
content, to be elaborated further in the process of using these heuristic
analytical categories.

In the next section of this essay I will exemplify the recursive
three-dimensional internal pattern of argumentation, of which the
three status generales have proved to be one instance, by sketching
how a systematization of basic elements of legal argumentation can
be constructed by repeated use of this pattern.12 In the concluding
section I will first briefly indicate how the pattern can be employed
for the same purpose in other fields of knowledge, even beyond the
traditional genera of oratory, in spite of some differences between
fields, differences which might at first appear to stand in the way
of constructing systems of argumentation for all of them on the same
general basis. The final section will then conclude with some additional
observations helping to explain the general nature of this three-
dimensional pattern further.

31. See text after n. 14, supra.
32. The arguments will of course only be mentioned here rather than evaluated
or discussed in detail, in accordance with the purpose (and space restrictions) of
this essay; brevity, it is hoped, will also help to keep the basic patterns in clearer
view.

180 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

III.

Legal arguments are aimed at establishing the legal characterization
of acts and events, persons and objects, which then determines the
appropriate legal response to these.33
1. On the first level, the factual basis of the decision must be
established, i.e., it must be shown that the facts, on which a legal
rule is predicated whose application is being proposed, are indeed
given.

The operative basis for this argument is formed by certain items
of evidence which point in the direction of such a conclusion and
which are regarded as given: a knife has been found at the scene of
a crime, a witness has seen the accused in the vicinity, etc. Of course
the fact that an argument takes these to be given does not guarantee
that they remain so. The opponent may attack them, claim that in
fact there was no crime, that the knife was planted at the scene
rather than found there, that the witness saw another person or saw
the accused elsewhere, etc. But from the contrary contentions of
both sides some elements will emerge which will be taken for granted
by all, e.g., that there was a corpse in a certain place, that at some
point there was a knife nearby, that the witness has reported that he
saw the accused in the vicinity, etc.

The next task of the argument is to show that once we apply the
appropriate regulative standards to these basic elements, we can
characterize the complex which they form, e.g., as "A killed B"; we
transmute the relatively simple, isolated, and neutral factual elements
into larger, more complex and significant factual units. Some of
these transmutations will again be relatively uncontroversial, as indeed
even the "elements" can be viewed as tacitly performed transmutations
of yet more basic sub-elements. We may, for instance, conclude that,
according to our standards of fact-finding, we can safely assume, on
the basis of the accounts of several witnesses whose reliability has
not been impugned, that A did indeed plunge a knife into B and
thus killed him. When this is the case, the accused's legal representative
will usually concede the point or limit himself to proforma arguments
about theoretical possibilities of doubt. The ability to make a real
argument on this level depends on the presence of a situation in

33. This connection between characterization of a situation and action implica-
tions with regard to that situation is not unique to law. In medicine for instance,
the diagnosis implies a therapy according to prevailing medical standards. D. Daube
has pointed out now certain provisions in biblical law make use of a "diagnosis
form" derived from the medical model; see his Ancient Jewish Law (1981), p. 100ff.

HANNS HOHMANN

which reasonable people could disagree whether certain factual
conclusions could be drawn on the basis of the undisputed evidence.

The standards according to which we proceed in such matters are
themselves multi-dimensional. Operative common sense may be
supported or contradicted by regulative standards.3 4 Thus, for instance,
the law of evidence may instruct us to disregard a witness' prior
misdemeanor conviction, 35 even though common sense may urge us
to regard such a record as probative evidence of character.
Presumptions 36 may authorize us to draw conclusions which standards
of common sense might impugn, or even compel us to draw conclusions
which the legally untutored mind would regard as clearly false.
Beyond regulative standards there are 7 operative norms which will
generally support, but may on occasion contradict the former. Thus
we might argue that the prior sexual history of a rape victim should
not be considered as probative, even if the law of evidence allows it
to be used.3 Once that argument is adopted by legal authorities, this
standard becomes regulative, and once it is accepted by a wider
public, it becomes, to varying degrees, the operative community
standard for factual inferences39 in this kind of situation.

It should be understood that legal standards of evidence are here
called "regulative" only relative to other norms for judging facts.
We can carry the analysis further and distinguish between the more

operative, regulative, and optative aspects of the law of evidence
itself: the law as actually applied by the courts may for instance be

contrasted with the law on the books, and we may argue whether to
follow the former or the latter; or we may distinguish between specific
rules and the general interests of justice which should govern us in

this field, and likewise debate whether the two diverge in a given
situation and which effect the latter have on the former. 4° And

34. See e.g., the provisions about witness credibility in the California Evidence
Code (Sect. 780ff.).

35. Ibid., Sect. 787, 788.
36. See e.g., ibid., Sect. 600ff.
37. "Are" here means simply that these standards are implied by the argument;
no position is taken on whether or how these standards "exist."
38. This argument will not likely sway a judge in her decision as to legal
admissibility, and might be objected to if made to the jury in this precise form; but
it is certainly possible to argue that in the present case this evidence does not really
prove anything. For the California rules on the subject of prior sexual history
evidence, see Evidence Code, Sect. 782, 1103.
39. This term is not used in a strictly logical sense here.
40. In both situations, both sides will usually deny any real divergence, but
rather interpret one standard in view of the other, differing of course in the direction
of that adaptation.

182 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

common sense and philosophical standards of proof can similarly be
further analyzed, as a debate goes deeper.

Once we have determined that our standards of factual verification
and characterization as applied to the undisputed evidence at hand
lead to a certain conclusion, a finding of the facts embodied in this
conclusion is usually inevitable, and as a practical matter the bulk
of arguments about facts will be conducted on the two levels just
discussed. But in exceptional circumstances a more fundamental
optative level of argument may be reached. We have, of course,
already seen how optative considerations help shape our standards
of factual verification and characterization. But we may come to the
conclusion that these standards are as good as we can make them,
but that nevertheless a finding of fact based on them should not be
accepted.

The governing standard for findings of fact is, of course, the
truth, usually understood as factual accuracy, 4 determining "what
really happened." But fact-finding in the law is part of the larger
enterprise of doing justice, and thus a conflict may develop between
our normal standards of fact-finding and the demands of justice as
we see them in particular circumstances. To maintain harmony between
truth and justice here, we might argue that in some situations justice
requires that we look at a larger truth than mere descriptive accuracy
in our findings of fact.

Such a situation can arise when we are confronted with unequivocal
facts on the one hand and an unequivocal law indisputably applicable
to those facts on the other, 42 and come to the conclusion that the
legal result of this conjunction is unequivocally unjust. 4 Normally
such conflicts would be resolved on another level of argumentation:
we might argue for a repeal of the law, or for a revision of our
standards of interpretation, or we might try to argue that the law is
unconstitutional, etc., etc. But if those options were not available
for some reason, if for instance, we lived in a legal system which
did not provide for such options, or in which the authorities could

41. That term itself is of course by no means clear; I am not endorsing a
particular truth theory here, but differentiating between a wider and narrower sense
of truth, the latter excluding notions such as "artistic truth" or "moral truth,"
which is not to say that there may not be, on some deeper level, a connection
between these various conceptions of truth.

42. The indisputability is here judged solely from the perspective of the person
experiencing the dilemma; a legal expert could be expected to be much less ready
to accept such a judgment than a layperson.

43. Again the perspective of the person in the situation matters here.

HANNS HOHMANN

not be prevailed upon to adopt them, or where, insofar as such

arguments did exist, the authorities would nevertheless not be willing

to listen to them, then it might indeed be debated, even though

hardly very publicly, whether the prevention of injustice would not
justify a finding of "fact" contrary to the empirical facts.44

2. Once the facts have been determined, the legal argument will

turn to the rules applicable to these facts. 4 The next stage4 of the
1

argument will establish that a certain rule does indeed apply to the

facts found, and that thus a particular legal characterization of and

response to those facts is justified.

On the operative level of the rule argument we now have to

establish that the rule involved exists. Usually this is taken for granted

by both sides, but problems and arguments can arise here. When a

party relies on foreign law, some proof of the rule involved may be
required. 47 But the existence even of domestic rules of law can

sometimes, although rarely, be in doubt.

Again we can distinguish different dimensions of the problem. The

physical existence of a certain document purporting to embody a

legal rule is usually not in question. When the document is a judicial

decision, we may, of course, debate what precise rule that decision
does in fact embody. 48 But assuming that we are dealing with a

statute, there still may be the question whether the printed text

accurately represents the rule passed by the legislators. It is even

conceivable, though not probable, that no legislative enactment of a

text resembling the printed rule ever took place.

Assuming that we encounter no problems (or, if we find the rule

repugnant, opportunities) on this level, we can examine whether the

regulative standards of lawmaking have been obeyed, whether the

44. I am here only discussing the possibility of such a position, not discussing
its merits. For a historical discussion of aspects of jury nullification in England see
T.A. Green, Verdict According to Conscience (1985). If such practices become the
norm with regard to particular laws and recurrent situations, the regulative standards
are changed through desuetude; another possibility is that such practices may be
sanctioned by legal fictions.

45. Some rules have of course already been involved in the determination of the
facts.

46. This is not necessarily to be understood as a matter of actual temporal

sequence, but rather as a matter of systematic sequence.
47. This is sometimes treated as a matter of fact which has to be decided by

the jury. Cf. e.g., 9 Wigmore, Evidence, Sect. 2573, and the overview in E.W.
Cleary (ed.), McCormick's Handbook of the Law of Evidence (2nd ed. 1972), p.
779ff., but the modern rule tends to allow judicial notice of foreign law on a par
with domestic law (see e.g., California Evidence Code Sect. 452.

48. This issue will not be pursued further here; see n. 11, supra.

184 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

required quorum was present, the required majority reached,
preliminary procedures followed, etc. Courts will not necessarily
address such arguments directly, but even if they do not, pointing
out such flaws in a law could affect their decision in other ways. 49
The question here is whether a conjunction of certain facts about
legislative activity add up to, can be characterized as "making a legal
rule" according to applicable norms. Of course, the existence of
those norms themselves will have to be assumed or established-they
may have to be interpreted, we may have to ask whether they should
be disregarded for some reason, etc. We may also find that even
though all the proper procedures have been followed in creating the
law, it does not validly exist anyway, because of special
circumstances-for instance, that it has been superseded in some way.
Just as law may be created in some more operative way, e.g., by
the emergence of a custom, so it may be abolished by desuetude.5 0
Formal abrogation, on the other hand, is the corollary to formal
passage of legislation. Here we encounter one use of the status legalis
of leges contrariae:it may be claimed that the law upon which our
opponent relies has been completely superseded by a later law. Of
course, some interpretation may be required to determine whether
the later law really abrogated the former. The prima facie case for
the existence of a legal rule created by procedurallycorrect legislation
may also be undermined by establishing that the law violates a higher
substantive standard. A regulation or ordinance may not comport
with applicable statutes-these may violate a constitution, which may
in turn violate a higher constitution, etc. 5

Assuming that our standards for determining whether a law exists
have been met, we can still argue on an optative level that those
standards need to be changed in general, or should be disregarded
in a particular instance. Such a contention, though relevant to legal
argument, is not itself a conventional legal argument, but would
usually be regarded as a philosophical and political argument. For
practical legal purposes it would usually be rephrased, e.g., as a
matter of constitutional interpretation; we might claim that the
constitution already requires a certain procedure or imposes certain

49. It could, for instance, lead to a more restrictive interpretation of the law.
50. This is often doubted for statutes, but probably incorrectly so; see A. Harari,
"Desuetude," in B.S. Jackson (ed.), Studies in Jewish Legal History in Honour of
David Daube (1974), p. 101ff.
51. All the norms involved must of course be interpreted in order to make such
a finding; insofar there is a loop from this point to the patterns of interpretation
discussed in the next subsection of this essay (111,2).

HANNS HOHMANN

substantive restraints on law-making, even though this has not yet
been authoritatively recognized. Once such an argument is accepted,
of course, it is thereby further established as a good 2 regulative
argument about law-making and the existence of laws.

If the existence of a valid legal rule is assumed or has been
successfully established, the argument may next turn to the applicability
of that rule to the situation at hand, and we thus deal with the
question of interpretation,which represents the regulative dimension
of the regulative dimension of the overall legal argument which we
discuss in this subsection.

In determining the meaning of a rule we can first rely on operative
usage, the common understanding of the terms used in the rule. The
existence of such an understanding is itself a question of fact and
thus potentially subject to further discussion: we may be able to
distinguish different dimensions of usage, debate in turn how these
can be verified and how they interact, and which of them should
prevail, in the sense of being regarded as "the" usage, if they conflict,
etc.

Once we have established such an initial understanding, we may
turn to the regulative question of whether we are required to go
beyond this, whether we need to discuss the usage in terms of
particular standards of meaning, either because the common
understanding is unclear, i.e., it does not unequivocally determine
whether the critical terms of the legal rule apply to the factual
situation at hand, or because the common understanding is clear, it
does tell us that the terms of the rule, as thus understood, do or do
not apply to the present. situation, but for some reason we find the
result thus reached unsatisfactory and debate whether we need to
adopt a different understanding of these terms. Here we encounter
the familiar status legales.

The former alternative, in which meaning is unclear, is contemplated
by the ambiguum-where the different possible meanings are not
distinct alternatives, but a continuum of possibilities, and we are
confronted with a situation calling for definitio of the terms of the
law. Definitio has, of course, traditionally been one of the status
rationales,but we can see now why some authors included it among
the status legales. Insofar as definitio is understood to cover the
entire legal characterization of a situation, it "is" one of the status
rationales; insofar as it is understood as a question of defining the
terms of the law in relation to the facts of the case, and that is the

52. Acceptance is not a conclusive standard of quality here.

186 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

understanding most strongly suggested by the prevalent focus in the
discussion of definitio even among those authors who do classify it
as a status rationalis,definitio "is," at least also, a status legalis.
And, of course, once we understand definitio even more broadly as
any act of characterization, it can no longer be confined to any one
status, but comes to be seen as a dimension in all of them.

The latter alternative, in which meaning is clear but unsatisfactory,
is the situation to which scriptum et voluntas and ratiocinatiospeak:
scriptum et voluntas actually covers the entire field here if we
understand the name of this status as it is written; an examination
of its actual discussion in rhetorical treatises shows, though, that the
general will of these authors was to denote by it those situations in
which the meaning of the law did cover the situation at hand, but
it was argued that the law should nevertheless not be applied;
ratiocinatiocovered the converse situation. 3 Leges contrariae,which
we have already encountered above in connection with arguments
about the existence of laws, plays a part in the interpretationof rules
insofar as the unacceptability of an initial understanding of a rule
can be derived from the fact that this understanding would create a
conflict with another rule, a situation one may wish to avoid
particularly if that other rule is of a higher normative status, so that
invalidity of the present rule would result from such a conflict.

The most common argument for a restrictive or expansive reading
of a-statute deviating from a common understanding of its terms,
or for a particular clarification of an unclear rule, is the will or
intent of the rule-maker, and that accounts for the fact that all of
the status legales can in a way be seen as cases of scriptum et
voluntas. That intent can again be understood in several ways: the
operative intent would be the actual psychological fact of what the
legislator really meant to mean by the law passed. This is a complex
question of fact with all its attendant occasions for argument; 54

particularly when, as is the rule nowadays, the legislator is not a
single person, we may even doubt that such a thing as "the" intent
of the legislature exists at all. How should we compound the different
intents? Was there any intent with regard to the present interpretive
problem? These and other problems are more often than not ignored
in practical legal uses of intent arguments. There are no clear

53. This is brought out by U. Wesel, Rhetorische Statuslehre und Gesetzesaus-
legung der romischen Juristen (1967), p. 138f.

54. See the discussion in M.S. Moore, "The Semantics of Judging, 54 So. Cal.
L. Rev. (1981), p. 151.

HANNS HOHMANN

standards of how to derive intent; individual utterances by legislators,
committee reports, and other parts of the statute to be interpreted
are just some of the items of evidence commonly used, and there is
no clear sense how these are in turn to be interpreted, weighted, and
conjoined into any particular conclusion about intent. One might
argue that specific standards would be desirable, that one or the
other element should be paramount in determining intent, but I think
it would be hard to gain general acceptance of any particular position
in this respect."

The same absence of clear standards also obtains when intent is
understood more as a construct, an understanding often signaled by
speaking of the intent of the law, rather than of that of the legislature.
The argument tries to establish what, according to regulative standards
of judging legislative behavior, a reasonable legislature would typically
intend by passing a law worded as the present one is worded, in the
situation in which it was passed. This hypothetical construction can
be further expanded to incorporate the facts of the present case:
would the reasonable legislature intend the law to apply in this case?

The decisive element here is, of coUrse, no longer the intent, but
the standards which are seen to govern it: legislatures are expected
to but the standards which are seen to govern it: legislatures are
expected to pursue certain purposes with their creations, and among
those purposes is expected to be the avoidance of absurd results56
following from an inappropriate application or non-application of
laws.

The optative dimension of the argument about intent is again
somewhat ambiguous. Radically one might argue that any intent
contrary to justice should simply be rejected. More commonly, if
such an intent does emerge clearly, which is unlikely because of the
difficulties of ascertaining intent just sketched, we can expect it
simply to be ignored.17 In most cases the flexible standards for

55. A major reason for this is probably the loss of flexibility such a position

might entail.
56. On the reductio ad absurdem in Roman law, see D. Daube, Roman Law

(1969), p. 176ff.
57. See, e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959) (rear fender

mudguard requirement for trucks possibly introduced to give competitive advantage
to Illinois truck operators), and Eisenstadt v. Baird, 405 U.S. 438 (1972) (Massa-
chusetts statute against giving away birth control articles possibly intended as
punishment for fornication or discouragement of extramarital sexual relations). In
the latter case the implication was not that such intentions were impermissible per
se, but that it would be impermissible to pursue them by means of this type of
statute.

188 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

characterizing intent permit a suitable interpretation of the will of
the legislature, which brings it in consonance with what are seen to
be clear demands of equity.

The interplay between literal meaning and intent or purpose is the
primary focus of conventional legal interpretation. Direct appeals to
justice and equity as optative standards of meaning are avoided; such
considerations are used to reach or further justify results which are
primarily based on letter or spirit. We must remember, of course,
that initially the use of appeals to intent and spirit was urged as a
matter of optative standards of interpretation opposed to conventional
standards insisting on literal readings of legal texts.18 By now such
appeals are a completely accepted part of the regulative standards of
interpretation. It is, of course, conceivable to urge yet other
considerations as proper and preferable norms for the determination
of rule meaning. One may, for instance, argue that the task of the
legal interpreter should not be the attribution of meaning to terms
according to semantic conventions, but rather the determination of
the true nature of the entities to which legal terms refer; this true
nature, e.g., of "death" or "malice," should govern the meaning
of rules employing such terms.5 9 Once such a proposed optative
standard of interpretation were to become an accepted part of
practical legal discourse, it would thereby become a part of regulative
standards of interpretation in the same way in which "spirit" or
"equity" already are. Some element of optativity (sit venia verbo)
remains, however, because even though references to these concepts
have become completely conventional in legal interpretation, we can
still argue about what the spirit of "spirit" is, or what a truly
equitable understanding of "equity" requires.

Once we have established that a valid law exists which applies to
the situation at hand and prescribes a particular response to it, we
may ask ourselves whether there could still be a legal argument for
disregarding that rule, either altogether or in the particular instance.
We thus reach the overall optative dimension of the arguments
focusing on legal rules. To put the question seems to answer it in
the negative. After all, the possible legal reasons for disregarding a
law have been explored in the context of ascertaining the existence
of that law; there we have determined that the statute in question is

58. This was the central issue in the celebrated causa Curiana, See Martin, op.
cit., n. 3, p. 48f.; a parallel case is discussed in Cicero, Inv. 2.21.62.

59. This position is argued in M.S.Moore, "A Natural Law Theory of Meaning,"
58 So. Cal. L. Rev. (1985), p. 277.

HANNS HOHMANN

compatible with the highest legal standard of the system, namely the
constitution. To be able to go beyond that, we must be prepared to
question the validity of the constitution itself, at least in part, on
legal grounds. Clearly this requires us to assume that there is a set
of legal norms to which the constitutional norms of a domestic
system have to conform in order to have legal force. If the
constitutional system itself accepts such a set of higher norms as
binding, they insofar become part of the conventional regulative tests
of legal validity within the system. There are indeed constitutions
which acknowledge that at least some of their provisions may be
superseded by norms of international law. 60 More commonly,
international law is given such effect on domestic legal norms, if any
at all, only below the level of the constitution which recognizes this
effect. 61 But, of course, one might disagree with this state of affairs
and argue that international law, or at least certain parts of it, such
as international human rights, should prevail as a matter of domestic
law, establishing validity requirements for law beyond and perhaps
even against the text of the domestic constitution. 62

Clearly this is a radical strategy, much less likely to succeed in the
short run than one which would argue in a way that infuses human

60. For instance, Art. 25 of the West German Constitution (Grundgesetz of
1949), gives the "general rules of international law" the power to supersede contrary
statutes, and insofar dispenses with the ordinary requirements of law-making or
transformation of international law into national law (Art. 76ff. and 59); technically,
of course, one can observe that the latter provisions are not really being superseded
because Art. 25 makes an exception to them; certainly Art. 25 does not contemplate
the abrogation of substantive norms of the constitution by the general rules of
international law. Moreover, national control is retained insofar as the Federal
Constitutional Court (Bundesverfassungsgericht) decides what these general rules are
(Art. 100 II GG); see K. Hesse, Grundzige des Verfassungsrechtsder Bundesrepublik
Deutschland (15th rev. ed., 1985), p. 38f. Cf. also Art. 9(2) of the Austrian
Constitution (rev. 1981), which provides for the possibility of transferring specific
sovereign rights to intergovernmental institution; this provision is discussed by C.
Schreuer, "Der neue Art. 9 Abs. 2 der Osterreichischen Bundesverfassung: Ubertra-
gung von Hoheitsrechten auf internationale und auslandische Organe," 42 Zeitschrift
fir auslandischesoffentliches Recht und Volkerrecht (1981), p. 93, who emphasizes
that it creates the possibility for international organizations to interfere with sub-
stantive provisions of the Austrian Constitution (ibid., p. 96).

61. See U.S. Constitution, Art. VI(2). On the debate about the relationship
between domestic law and international law, generally see W. Friedmann, Legal
Theory (5th ed., 1967), p. 573ff.; on some technical details of U.S. law in this
respect see R.B. Lillich, "The Role of Domestic Courts in Enforcing International
Human Rights Law," in H. Hannum (ed.), Guide to InternationalHuman Rights
Practice (1984), p. 223ff.

62. See, e.g., M.J. Perry, The Constitution, the Courts, and Human Rights
(1982).

190 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

rights ideas into the domestic legal order less overtly in the process
of interpretation. It should be remembered, however, that in the past
parallel claims were made on behalf of natural law as a supra-
domestic legal order, and that these ultimately did result in the
recognition of certain natural rights in domestic constitutions. 63 In a
process that we have observed before in discussing other optative
arguments, the success of such arguments transforms them into
regulative arguments whose optative component is preserved insofar
as we can still ask what should be regarded as the precise import of
such an acceptance, i.e., it always remains possible to ask "but is
that really (all) this (now constitutional, formerly natural) right
requires?"

Occasionally, in the not too distant past, references to natural law
have been used in judicial decisions, but usually in conjunction with
constitutional provisions rather than as a totally independent source
of higher law immediately effective in the domestic legal system. 64 It
remains to be seen whether arguments based on international human
rights will be successful in this way, short of constitutional amendment,
incorporation, or transformation requiring politically controlled
approval.
3. In the unlikely event that we have not been able to argue with
some persuasiveness for an acceptable legal conclusion on one or
both of the preceding levels, the debate may shift to the optative
level of the legal argument as a whole. The question now becomes
whether we can justify a deviation from the statute by invoking
circumstances which bring into play standards superior to all law.
We are thus even farther removed from the area of day-to-day legal
argument. Are we, when we take such a step, even still engaged in
legal argumentation at all? Only insofar as our argument will aim
to affect legal standards; however, it is no longer based on legal
standards, but rather reaches beyond them into the realm of pure
moral values. Such values do, of course, permeate the entire legal
order, and a resort to this level of argumentation will only be
necessary if we cannot plausibly claim that a value we wish to
espouse has already been incorporated into the law.

It is precisely the point of calling international norms "international
law" and certain claims "human rights," rather then merely moral

63. For American constitutional law see E.S. Corwin, The "Higher Law"
Background of American Constitutional Law (1955); T. Grey, "Origins of the
Unwritten Constitution: Fundamental Law in American Revolutionary Thought,"
30 Stan. L. Rev. (1978), p. 843.

64. See J.H. Ely, Democracy and Distrust (1980), p. 48ff.

HANNS HOHMANN

entitlements, to bring them closer to full legal recognition; and

opponents of demands based on such norms tend to dismiss them

as "mere morality," devoid of legal force, in order to achieve the

opposite effect. Nevertheless, it would be a mistake to underestimate

the persuasive force of appeals to morality. It is generally recognized

that the demands of certain moral tenets have at least theoretically

a stronger claim to our obedience than legal norms to the contrary,

even if these may often prove practically more effective. Moreover,

even this effectiveness will not always be ensured.
The status qualitati6s5 was initially used and analyzed in a setting

which did not feature an audience of legal specialists which might

be counted on to be more protective of legal as opposed to moral

norms.66 Forensic oratory was practiced before lay judges who would
be more amenable to appeals urging disregard of the written law. 67

Even so, the morality appealed to was often characterized as the
"unwritten law,"' ' thus bolstering its claim to recognition in a legal

setting. Nevertheless it is clear that at least initially such claims were

made in situations involving special circumstances which the law as

hitherto laid down and applied had not yet recognized as legally
relevant justifications and excuses.6 9 Persistent success in formal legal

proceedings would over time transform such moral excuses into legal

ones. As an example from a more recent past we can use the gradual

65. The status qualitatis was often subdivided into one more legal and one more
moral issue (see, supra, n. 24); thus it is understandable why Hermogenes regarded
the status legales as subdivisions of the legal part of the qualitative issue. Usually,
however, questions requiring the interpretation of legal rules were discussed under
both definitio and qualitas negotialis (Cicero's terminology in Inv.). The aspect of
qualitas focused on here as indicative of the optative dimension of legal argument
is the qualitas juridicalis or, to use Aristotle's terminology, equitable (rather than
legal) justice.

66. The contrast between the methods of Roman jurists and the rhetorical

emphasis on "true or even only apparent equity" ("wirkliche oder auch nur
scheinbare Billigkeit") is emphasized by W. Kunkel, R6mische Rechtsgeschichte (5th
rev. ed., 1968), p. 101, who associates rhetoric with "a fog of commonplaces and
empty phrases" ("Nebel von Gemeinplatzen und Phrasen') and "poison" ("Gift"),

ibid., p. 101,103. D. Simon, Rechtsfindung am Byzantinischen Reichsgericht (1973),
shows the rather more accepting attitude of Byzantine judges of the 1lth century
towards rhetorical techniques, and reports the opinion of Psellos that in order to

become a good lawyer it was fully sufficient to study rhetoric thoroughly (ibid., p.
32). See also Wieacker, op. cit., n. 4, p. 662ff.

67. For an overview of Athenian judicial proceedings see J.W. Jones, The Law
and Legal Theory of the Greeks (1956), p. 116ff. Tacitus, in his Dialogus de
Oratoribus 19.5 refers to "those judges who decide on the basis of their power and

authority rather than according to law and statutes."
68. Aristotle, Rhet. 1.15.4ff. (also "general law" is used).
69. See the overview in Martin, op. cit., n. 3, p. 39ff.

192 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

change of certain aspects of the defense of self-defense from an
element of popular morality, considered by medieval English juries
in their findings of "fact," to legally recognized justifications whose
absence the prosecution has to prove once the defense has been
raised.70 The possibility of jury nullification still makes jury trials
the most likely formal legal venue for arguments tending to assert
that the law should be disregarded in favor of more inchoate moral
standards. 71

In moral arguments, too, we can analytically distinguish different
levels or dimensions: operative social morality, the standards by
which people actually conduct their lives, can be contrasted with
regulative morality, 72 which consists of the set of standards which is
generally recognized as normatively binding, even if it is not always
put into practice, 73 and this morality in turn can be confronted with
an optative one for which the claim is raised that it should be so
recognized .7 4

Moral arguments can sometimes benefit from the ambiguity of
undifferentiated claims about what morality tout court demands,
because a perception that such standards have already been more
widely accepted and put into practice than may actually be the case
can contribute to just such more widespread acceptance and practice. 75

By the same token arguments in the border-zone between morality
and law76 may help to confer a more secure legal status on claims
by implying that such a status has already been attained. In both
cases the opposite effect may be obtained by arguments with contrary
implications. 77

70. See Green, op. cit., n. 44, p. 78ff.
71. See B.L. Becker, "Jury Nullification: Can a Jury be Trusted?", 16 Trial
(1980), p. 41. The sphere generally regarded as appropriate for this kind of argument
is that of public and scholarly discussion outside the courtroom.
72. Cf. the distinction between summary rules and practice rules in J. Rawls,
"Two Concepts of Rules," 64 Phil. Rev. (1955), p. 3; it may be better to think of
different aspects, rather than of different kinds, of morality or rules.
73. The distinction between public and private morality is to some extent apposite
here (see S. Hampshire [ed.], Public and Private Morality [1978]), but it should be
noted that private morality can be both more and less stringent in its demands than
public morality.
74. Each of these levels can be further subdivided as the argumentative occasion
arises.
75. This does not necessarily have to be a matter of deception; people may very
well believe their own claims fully, and it would in any event be very difficult to
conclusively verify (or falsify) such claims.
76. As the term "zone" is meant to indicate, no strict separation is implied
here.
77. It should be noted here that this effect is not limited to arguments involving

HANNS HOHMANN

4. I will conclude this short sketch" of a systematic overview of
basic patterns of legal argumentation with some general observations:

As I have already noted, the different levels of argumentation
stand in a subsidiary relationship to each other. Relatively more
optative arguments are subsidiary to relatively more operative ones,
so that the former become only necessary and are still possible when
the latter cannot be made or fail.

There is no unequivocal hierarchy of arguments here because there
is no single standard of hierarchization. It is fairly safe to say that
the more optative arguments are theoretically stronger in any
assessment making use of the notion of absolute standards. More
operative arguments may probablybetter work practically,but whether
they actually will depends entirely on the case at hand, the available
evidence, the ethos of the parties and their representatives, the precise
formulation of the arguments, the characteristics of the audience,
etc., etc. This essay deals only with the analysis of the systematization
of patterns of possible arguments, not with the choice of the precise
expression of actual arguments .79

There are no airtight distinctions between the different levels or
dimensions of argument: when we define the facts as falling under
the rule, we thereby define the terms of the rule, just as our definition
of the terms of the rule affects our definition of the pertinent facts.
Likewise, our claim that a certain rule is justified by a certain value
defines both the rule in terms of the value and the value in terms
of the rule. Thus, if we argue that justice requires that "murder"
be a killing committed maliciously, we thereby define the value
"justice," the rule about "murder," and the facts of certain actual
killings. The three dimensions are linked in a process of reciprocal
definition.80

In addition there is the possibility of transmigrationbetween the
different levels or dimensions, so that there is no airtight separation

morality; it can also occur when we debate the relative strength of purely legal
norms, or the degree of confirmation of facts.

78. I am developing this overview more fully in my dissertation on the historical
development and systematic features of structures of legal argumentation.

79. These are dealt with by other parts of rhetoric, arrangement (dispositio),
style (elocutio), and delivery (actio); the fifth part of rhetoric (in addition to inventio,
which is our major concern here) is memory (memoria).

80. Similar reciprocal definition can be found within the area of fact, rule, and
value; see, respectively, W.V.O. Quine, "Two Dogmas of Empiricism," ibid., From
a Logical Point of View (2nd ed., 1961), and the idea of "reflective equilibrium"
in J. Rawls, A Theory of Justice (1971), further elaborated in the context of a
theory of law in R. Dworkin's books Taking Rights Seriously (1977) and The Empire
of Law (1986).

194 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

either: morality does not merely or always supersede law, just as law
does not merely or always confine action; optative ideals can become
regulative standards which turn into operative practices, and the
reverse process is equally possible. As we refine our analysis, the
transitions between categories becomes ever more gradual, and we
are better able to conceptualize some gradual transitions as well as
complex interrelationships between phenomena, even if for purposes
of non-analytical arguments sharper distinctions may still be in
order. 8'

IV.

I now turn to the question whether a similar systematic analysis
of patterns of argumentation, using the same basic principles as those
employed in ordering legal arguments in this essay, could also be
carried out in other areas of argumentation.82 While I cannot here
even sketch such a project, I will at least discuss two reasons which
could seem to stand in its way: the prominent place of rules in legal
argumentation, and the fact that it is a form of practical,i.e., action-
oriented, rather than theoretical, i.e., cognition-oriented
argumentation.

While the latter concern would not apply to other fields of practical
argumentation, particularly political persuasion, 8 it certainly appears
that rules play nowhere near the role in politics that they play. in
law. While this is undoubtedly true when we limit ourselves to explicit
standards having a canonical form of words, we can certainly see
many more implicit or vague standards at work in political arguments:
references to governmental policies, political doctrines, party programs,
campaign promises, etc., abound, and these are subject to basically
the same processes of interpretation as legal rules, which, of course,

81. A strong contrast is usually needed for purposes of justifying either-or
decisions, and that may help explain many conceptual dualisms.

82. The importance of the analysis of legal argumentation for the understanding
of argumentation in general has been emphasized very strongly by Ch. Perelman,
"The New Rhetoric and the Rhetoricians: Remembrances and Comments," 70
Quarterly Journal of Speech (1984), p. 195: "The thesis that I have defended for
thirty years is that law plays a role in regard to argumentation analogous to that
of mathematics in regard to formal logic" (emphasis in the original). Cf. also Ch.
Perelman & L. Olbrechts-Tyteca, op. cit., n. 15, p. 12f. and passim. The usefulness
of a legal model for a general analysis of argumentation is also stressed repeatedly
by S.E. Toulmin, The Uses of Argument (1958), p. 7f., 15ff., 41ff., 95f., 142.

83. A. Braet, op. cit., n. 4, p. 139ff. analyzes the theory of stock issues, used
in American collegiate debates on policy issues, in the context of his discussion of
status theory.

HANNS HOHMANN

can also play a direct role in political discussions. While facts and
values will tend to play a greater role in deliberative arguments than
do rules, this is a matter of preference for certain patterns over
others as more usual and appropriate for the subject matter, audience,
and speaker at hand, rather more than a matter of the presence of
such patterns, more a matter of actual than of possible use. And,
of course, we have already seen that this pattern of analysis can
usefully be applied to arguments about facts. What changes in this
respect is not the basic pattern of the argument, but the specific
standardsemployed. The rules used are not so much legal rules, but
rules nonetheless, and the standards of proof are not legal standards,
but standards of proof nonetheless.

For similar reasons, cognitive arguments can be analyzed in the
same terms as practicalarguments. The surface difference is lessened
,once we realize that both kinds of persuasion aim at the assent of
their audience. In cognitive discourse standardsfor assent are often
left more implicit; thus the standards of credibility tend to be used
rather than referred to, while the law may make them explicit. But,
of course, even in legal arguments some standards will always remain
implicit.8 4 We have, for instance, seen that the standards for
ascertaining legislative intent are presupposed rather more than used
explicitly; but even if they were to be made more explicit, our
discussion of them would still be predicated upon as yet unstated
standards, etc., etc. Because of the immediate and dramatic
consequences attendant upon the acceptance or rejection of legal
arguments, the claims, standards, and structures implied in them
have been subjected to very probing analysis which has made many
of them more visible than they are in other fields, but this does not
preclude that parallel elements are similarly at work elsewhere, even
if more covertly.

Not only do practical as well as cognitive arguments ask for assent
according to standards, the latter also imply demands for action,
just as the former are predicated on cognitive claims. The argument
that something should be done always assumes that a certain situation
exists, that the action demanded will have certain consequences, that
the addressee of the demand has certain abilities, etc. And similarly
the argument that something should be believed implies that actions
predicated upon such a belief should be taken, that the addressee

84. On the role of unexpressed premises in argumentation see F.H. van Eemeren,
R. Grootendorst and T. Kruiger, Handbook of Argumentation Theory (1987), p.
13ff.; see also generally M. Polanyi, The Tacit Dimension (1967).

196 THE AMERICAN JOURNAL OF JURISPRUDENCE (1989)

should defend such beliefs if they are attacked, that he should try
to persuade others to accept the same belief, etc. To the distinction
between practical and cognitive arguments, as well as to the related
one between persuasion and suasion, we can apply, mutatis mutandis,
the observation made by J.L. Austin about the similar distinction
between illocutionary and locutionary acts: "in general [it] is an
abstraction only: every genuine [argument] is both. ' 85

In conclusion, I will briefly focus on the basic features of
argumentation which the fundamental recursive pattern of analysis8 6
discussed in this essay represents and which explain its general
applicability.

Whenever we ask for assent, be it for an assertion or a demand,
we thereby imply that this assent is required by applicable standards
which are appropriately justified by yet further standards. These
standards vary from field to field and situation to situation, but they
are always presupposed more or less explicitly or implicitly. 7 We
also make certain presuppositions about what is the case in the world.
All of these presuppositionsare progressively brought to light as we
are challenged to support our request for assent by arguments, and
challenge our opponent to give reasons for disagreement in turn. All
of these types of presuppositions are at work in every argument.

The basic pattern of analysis presented here is parallel to the
deductive pattern, with one important difference. The assertions
which the argument is designed to support corresponds to the
conclusions of deductive proofs; the operative dimension corresponds
to the elements which are being manipulated within the formal
deductive system; the regulative dimension corresponds to the axioms

85. J.L. Austin, How to Do Things with Words (1962), p. 146.
86. This kind of analysis can also be applied to certain concepts, such as
"legitimacy," where for instance M. Weber distinguishes between traditional, ra-
tional, and charismatic types of legitimacy. This applicability is not surprising in
view of the argumentative origins and functions of such concepts. Another important
example is provided by the subdivision of semiotics into syntactics, semantics, and
pragmatics, as elaborated in Ch. Morris, Foundationsof the Theory of Signs (1938),
p. 6ff., 13ff. Semiotics itself, which focuses primarily on signs, can be seen as one
element in a larger triad whose other two elements are centered on objects and
speakers/interpreters respectively; the need to complement semiotics with holistics
and phronetics in a complete analytical rhetoric has been established by 0. Ballweg,
"Phronetik, Semiotik und Rhetorik," in 0. Ballweg & Th.-M. Seibert (eds.),
Rhetorische Rechstheorie (1982), p. 27ff.; see also U. Neumann, JuristischeArgu-
mentationslehre(1986), p. 56.ff.
87. The context-dependence of standards is implicit in Aristotle's discussion of
the different special ends of the genera of rhetoric, see Aristotle, Rhet. 1.3.5. For
modern discussions of this idea see Perelman & Olbrechts-Tyteca, op. cit., n. 15,
p. 132 ff., and S.E. Toulmin, op. cit., n. 82, p. 36ff.

HANNS HOHMANN

and transformational rules of the system; but to the optative dimension
there is no corresponding feature within the axiomatic system. Formal
deductive systems propose to guarantee the validity of deductions
only relative to the axioms and transformational rules constitutive of
the system. By contrast the truth claim implied in substantive
arguments is absolute8.8 Normally, arguments confine themselves in
their explicit formulation to the regulative and operative dimensions;
but as the validity of the conclusions thus reached depends on the
validity of the "axioms" of the system, an absolute truth claim mfist
necessarily imply a claim that these "axioms" are well founded. The
optative dimension corresponds to the "other system" which must
be presupposed in order to establish the foundations of the
argumentative system within which we are presently operating. s9 This
dimension provides the justification for the basic premises of our
arguments, but it is by the same token also a source for criticizing
them. Once we engage in a debate about these foundations, and
attempt to establish them argumentatively, and to incorporate them
into our overall argumentative system, we must again presuppose a
yet further foundation for the premises which we use in that debate.
The optative dimension remains. 90

88. This aspect of the nature (as opposed to the available tests) of truth is
insisted upon in B. Russel's discussion of truth in The Problems of Philosophy
(1959).

89. Ch. Perelman & L. Olbrechts-Tyteca, op. cit., n. 15, use mathematical
insights into the limits of formal systems as one of their points of departure for
the reconstruction of rhetoric, see p. 13.

90. This dimension is a reminder of the special and novel circumstances which
can prevail upon us to reconsider our standards; the locus classicus for this problem
is Aristotle, Eth. Nic. 5.10.3ff., echoed, e.g., by H.L.A. Hart, The Concept of Law
(1961), p. 125 (who does not mention Aristotle here). In the Middle Ages scholars
debated the question of the circumstantiaewhich may affect the evaluation of human
actions, see J. Griindel, Die Lehre von den Umstanden der menschlichen Handlung
im Mittelalter (1963).