Informace o publikaci

Communitas, Communion and the Judicial Reasoning



Rok publikování 2015
Druh Článek ve sborníku
Konference Argumentation 2015 : international conference on alternative methods of argumentation in law
Fakulta / Pracoviště MU

Právnická fakulta

Obor Právní vědy
Klíčová slova Communion; Communitas; Rhetoric; Judicial Reasoning; Law and Literature
Přiložené soubory
Popis Understanding of acceptability of various rhetorical tools in legal reasoning has a pivotal role in the field of legal argumentation. Previous studies (as the most influential of them New Rhetoric written by Chaim Perelman and Lucie OlbrechtsTyteca) have reported that rhetorical approach has much to offer to legal discourse. Though, one of its greatest challenges still remains the same: to prove that rhetorical approach to legal argumentation is reasonable and proper. Still, at least in the civil law systems to date there has been little agreement on which tools of rhetoric are useful way of legal convincing and which serves just as mere rhetorical ornaments. In this paper, I argue that the use of citation of literary fiction in legal reasoning is useful and admissible tool of legal reasoning in any legal system due to its rhetorical and performative character. This paper attempts to show that the way how these citations are used in reasoning of legal decisions may be and should be properly understood in terms of legal rhetoric, especially of the New Rhetoric introduced by Perelman and Olbrechts-Tyteca. The central thesis of this paper is that use of citation of literary fiction in legal reasoning is the way of creating communion between speaker and his audience which serves as a necessary basis of creation of communitas within the audience and this communitas works as one of the tools of legitimization of the legal system. In the pages that follow, it will be argued that performance studies and rhetoric provide necessary answers on possibilities of legal reasoning. The aim of this paper is to explore the relationship between rhetorical aspects of legal reasoning and legitimacy of judicial decision in the context of citation of literary fiction in legal discourse.
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