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Abstract
Multi-modal argumentation is a relatively new approach in argumentation theory. In Gilbert’s approach to multi-modality, it focusses not only on the logical mode of argumentation but also on the emotional, the kisceral, and the visceral: the so-called “alternate” modes. Due to the formal institutional constraints in law, the logical mode (in its dialectical variant) is a normative imperative due to the demands of the rule of law. However, especially in the so-called unclear cases, we can find traces of the alternate modes, either in their dialectical or rhetorical dimensions. If it already has been claimed that logic is only one part of legal “business,” a multi-modal argumentation analysis of law, in a Gilbertarian style, is presented here for the first time.
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No potential conflict of interest was reported by the author.
Notes
1 What defines the mode are different sources of reasons or premises such as logical thoughts, emotions, physicalities, and intuitions. Still, arguments made within such modes are built in a logical manner. Even though all the three alternate modes are genuinely and mostly non-verbal, that is not their essential feature.
2 This was actually a real case before a court and it is described in the continuation.
3 According to Tseronis and Forceville, any means of communication can be analyzed as an argument if it functions to gain assent from an audience (Tseronis and Forceville 2017, 4).
4 »It is true that in a modern trial the grosser forms of appeal to emotion . . . can be kept out by rules of evidence. But subtler yet perhaps equally misleading forms of emotional appeal cannot be.« (Posner Citation1995, 510–511).
5 This could refer to the requirements of correct substantive law applied, and correct and complete states of facts established.
6 This could refer to the requirements of specific rules of legal procedure to be followed.
7 The logical, dialectical, and rhetorical approaches to argumentation follow from “Aristotle’s triumvirate of logic, dialectic, and rhetoric” (Tindale Citation2004: 4).
8 Furthermore, legal arguments could also be presented from lay parties to either juries or professional judges, or from judges to the audiences of either lay parties, and lawyers, and the universal audience as a community of reasonable persons (Perelman and Olbrechts-Tyteca 1969).
9 We could even say that, due to formal constraints imposed in the legal context, the dialectical dimension is, at least as a starting point, more important than the rhetorical one, so that we may use van Eemeren’s conception of the “rhetorical inside the dialectical” (van Eemeren Citation2015). However, there is also an extensive space for rhetoric and not only in the direction of steering the discussion in the framework of the logical mode (logos), but also concerning the use of pathos and ethos (see cf. van Eemeren Citation2010).
10 According to Groarke, the consideration of values forces us to »rely on language in a way which is connected to human experience in a notoriously vague way.« (Groarke Citation2017: 24)
11 When in unclear cases, in the external context of justification, no normative requirement exists regarding the proper canon of interpretation (e.g., either linguistic, systematic, historical, or purposive) is to be used, whether interpretation is to be formalist or purposive, or which result of interpretation is to follow (e.g. either literal, restrictive, or extensive),;the choice made by the judge is based on values.
12 Since the law is not exhausted in legalism, »(T)he first decision in a line of case may be the product of inarticulable emotion or hunch.« (Posner Citation2010: 111)
13 Brennan (1998) asserts that judges must embrace passion as »the range of emotional and intuitive responses to a given set of facts or arguments, responses which often speed into our consciousness far ahead of the lumbering syllogism or reason«. Posner (Citation2010) admits that judges’ decisions are based on »temperament, emotion, experience, personal background, and ideology.«
14 Montesquieu required that judges be the »mouthpieces« of the law (Montesquieu Citation2011).
15 Which would read, e.g.: »Whoever insults another person, is fined in the amount of …«
16 That judge has been a long-time member, at some point even a member of parliament, of the Christian-Democratic political party.
17 The broadest meaning of the old Greek word physis was nature. According to Kelly, this meant “the natural physical universe and the instinctual nature of its human inhabitants, which were unvarying everywhere” (Kelly Citation2007: 14). In this sense, we could understand it to refer to the visceral mode.
18 Circumstantial evidence can also be very clear like forensic evidence (as evidence obtained by scientific methods such as ballistics, blood test, and DNA test).
19 In Case No. Kp 4/2006 of 17 July 2006 (the Perić case), the Slovene Supreme Court developed the “logic-circle-closes” test to evaluate when there is enough circumstantial evidence to reach the standard of beyond reasonable doubt necessary for a criminal judgement of conviction. In that case a young man was convicted of having murdered his family. The circumstantial evidence used in that case was a socket of the bullet that was found at the crime scene and compared with those he otherwise used for his pistol, a watch that was supposed to have been used by his father but was found with the defendant, and a video of his car filmed at a gas station on the way between the place he lived and the crime scene. Relevant for our case would be the last (visual) circumstantial evidence, because there might be several photographs of a defendant’s car on the way to the crime scene. These photographs depend on the entire context of other circumstantial evidence but give grounds for rhetorical strategic maneuvering in different directions of the case.
20 Apple’s evidence submitted to the court included side-by-side image comparisons of iPhone 3GS and i9000 Galaxy S to illustrate the alleged similarities in packaging and icons for applications. However, the images were later found to have been tampered with in order to make the dimensions and features of the two different products seem more similar, and counsel for Samsung accused Apple of submitting misleading evidence to the court (Kane and Sherr 2011; Victor Citation2012).
21 Cf. the situation in France where, in several cases from 2006 to 2013, the French Cour de cassation refused to grant copyright protection, holding that copyright protects creations in their tangible form, in so far as these are identified with sufficient precision to allow their communication. The fragrance of a perfume is not in itself a work of the mind, apart from its development process. It does not have a form with the characteristics of a work of mind itself (Jonkhout Citation2017).
22 I use parenthesis before and after the word translation because I agree with multi-modality theorists that some kind of literal or “faithful” translation is impossible, at least when it comes to physicalities within the visceral mode.
23 A kind of a typical legal »experiment«, in order to come to a legal decision.
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Notes on contributors
Marko Novak
Marko Novak is an associate professor of jurisprudence and constitutional law at the European Faculty of Law of the New University, Slovenia. His major academic interest is legal argumentation, but he also teaches legal history and comparative law. In 2016 he published The Type Theory of Law (an essay in psychoanalitic jurisprudence) with Springer.