Can evidence of comparison be used in court?
IVR (German Section) and German Society for Philosophy
Prof. Dr. Wolfgang guest
First published: February 4th, 2013
- Introduction. Rhetoric: a topic that is obsolete in legal philosophy?
- The story: beginnings. The classic rhetoric
1. Beginnings. Sophists - 2nd Antisophist Plato - 3rd Isocrates - 4th / 5th Aristotle - 6th Hellenism - 7th Cicero - 8th Quintilian - 9th Middle Ages - 10th Baroque, Enlightenment - 11th Rhetoric & Law - 12th 19th Century
- The instruments of classical rhetoric
1. Still dominating classics - 2. Five building blocks of the teaching of speech. The Inventio - 3. The three types of speech - 4. Individual cases and general issues - 5. The status question - 6./7. Structure and parts of the speech - 8. Degrees of legitimacy of the cases - 9. The evidence (overview) - 10. Ethos and pathos - 11. Rhetorical closing procedures (logos) - 12. The topic - 13./14. Style
- Return of rhetoric as rhetorical legal theory
1. “New Rhetoric” - 2. Rhetorical legal theory: major works - 3. Status after six decades
- Rhetoric in current methodology
1. “Key qualification” - 2. Two textbooks - 3. Logos of the prevailing methodology - 4. Proof of authority - 5. Legal language
"I must confess: that ... the reading of the best speech of a Roman popular orator ... was always mixed up with the unpleasant feeling of disapproval of a cunning art ... Oratory (ars oratoria) is, as an art, of making use of people's weaknesses for one's intentions (these may always be meant as well as they want, or they may be really good as they want), is not worthy of any respect on § 53 of the "Critique of Judgment") can appear as a death sentence, which German-speaking jurisprudence in particular promptly carried out. In the early 19th century she made the change from the rhetorical search for law to legal dogmatics and since then has based her self-image and claim to correctness on her strictly dogmatic way of working (EzR, legal dogmatics in civil law I 1 and 6). The methods used are considered to be a scientific alternative to artistry that is unsuitable for legal knowledge. But the validity of the conventional canon of methods, as exemplified in Larenz's “Methodology” (6th edition 1991), updated by Canaris (1995), has been questioned again and again. Since the 1970s, different concepts of legal argumentation have contrasted the ideal of deductive derivation of legal knowledge with dialogic or aporetic working methods, and the "rhetorical legal theory" has been promoting the rehabilitation of rhetoric in jurisprudence for 20 years, now with some success.
1. Rhetoric (Greek rhetoric; lat. rhetorica) is taken from the ancient, Greco-Roman culture, both in name and in substance. The current dictionary (Duden 1999) translates the loan word “rhetoric” into “rhetoric” and defines this as “the doctrine of the effective design of speech”. Lexicons describe the term in more detail: It encompasses the entire “theory and practice of human eloquence in all public and private matters, be it in oral, written or technical media (film, radio, television) mediated form” (Brockhaus Enzyklopädie 2006). As a “scientific discipline”, rhetoric is about communication that is “effect-oriented, ie geared towards the conviction of the addressee (persuasive communication)”. This lexicon passage superficially touches on the basic conflict that has been found in contrary definitions since ancient times. Persuasive acting, if you take the attribute literally (persuadere = persuade), is designed to persuade a communication partner. In contrast to the target of “conviction”, “persuasion” is rated negatively for the most part.
2. The term rhetoric did Plato in the early 4th century BC Coined and thus inconsistent designations of one and the same issue eliminated (Kalivoda / Zinsmaier 2005, 1423). Aristotle used rhetoric téchneto name a scientific discipline that is equivalent to logic (“dialectics”) (Aristotle, Rhetorik I, 1, 1). When in the 2nd century BC BC the Greek model was adopted by the Romans, soon also Latinized, the name remains rhetorica or rhetorice stand, combined with the brief definition: ars bene dicendi (Art of speaking well). Quintilian, who at the end of the 1st century summarized the highest standard achieved in his subject in a textbook, separates two dimensions of the term rhetoric: On the one hand there is rhetoric bene dicendi scientia, the science of speaking well, aimed at conviction, not persuasion (Quintilian II, 15, 38 with 15, 3 ff.,). To this extent, rhetoric explores the general conditions for an effective use of language, establishes regularities and establishes rules. On the other hand, it is ars, Art, as it obeys rules, and is one of the artes in agendo positae, the practical, action-oriented arts (Quintilian II, 18, 1-5). In the ancient texts, “Ars” generally stands for a working method derived from “fixed rules and regulations” (Isidor von Sevilla, Etymologiae I, I, 1, Möller 2008, p. 20). German-language literature has been using the terms "rhetoric", "eloquence" and "good honesty" since the 16th century (Sulzer 1794, p.41).
3. Currently, legal rhetoric offers this definition: rhetoric is the technique of linguistic communication with the aim of establishing consent (Gast 2006a, Rz. 3 ff .; 2006b, p. 31 f.). The way ("understanding") to consent and the ("linguistic") means used are mentioned. The objective of “consent” rejects the “persuasion” which is inappropriate for rational communication; at the same time it replaces the inner fact “conviction” with a manifest characteristic. Consent (consent, consensus) is expressed directly or through behavior, the motives for it are irrelevant.
1. From the 18th century BC An ancient Egyptian text on rhetoric comes from an ancient Egyptian text: A poor, but eloquent man asserts his rights against a malicious land manager and partisan judges with nine plaintiffs (Ermann 1923, p. 157 ff .; Gast 2006a, Rz. 504 ff.). The earliest evidence of the practical eloquence of the Greeks can be found in Homer (8th century BC); for example in the speeches intended to induce the offended Achilles to return to the battlefield (Ilias 9, 225 ff .; Gast 2006a, Rz. 520 ff.). That Athens since the 5th century BC As far as rhetoric is concerned, the city owes it to speakers from the Greek colonial area of Sicily (Fuhrmann 2011, p. 17). The most famous of them is Gorgias, who lived in 427 BC. Chr. Settles in Athens and opens the first speaker school there. He belongs to the sophists who, as an enlightener, want to replace the mythical worldview that has become questionable with an explanation of the world within the limits of reason; As a speaker, he is admired for the precise, coherent structure of his argumentation and for his virtuoso use of language (Fuhrmann 2011, p. 19 ff.). This is countered by hostility because of his philosophical nihilism (Capelle 2008, p. 282 ff.), Which allows him to represent almost every point of view with the same emphasis, as well as the rejection of his rhythmically and loudly dominated, "ornate" speech. Plato stylized Gorgias as an enemy image in order to bring rhetoric into disrepute (excluding his own, often proven). Another sophist, Protagoras (481-411 BC), boasts that he can make a worse cause triumph over a better one; which Aristotle, who coolly analyzes the logical and moral errors of rhetorical approaches, will brand as a “lie” (Rhetoric II, 24, 10). The historical merit of the sophists in Athens, however, remains that they put public speaking in a democracy, especially in political and legal disputes, on a professional basis. Unfortunately, only a few of her texts have survived in the original, and her historical picture was mainly shaped by reports and reviews by the critics. There are two complete speeches by Gorgias, written for the classroom, one of which, contrary to prevailing opinion, tries to justify Helena's innocence in the Trojan War (Lobpreis der Helena, Buchheim 2012, p. 3 ff.). Antiphon from Athens, 411 BC. Executed as a putschist, left model speeches for prosecution and defense in the same case (Tetralogiae 2, Caizzi 1969, pp. 107 ff., 145 ff.); but that does not prove that he worked as a speechwriter for both parties on any matter.
2. In the 4th century BC Three schools of philosophers and speakers dominate the intellectual field in Athens. They are led by Plato, his sophistic antipode Isocrates, and by Aristotle. - Plato (427 to 347 BC) was born in Athens the same year that Gorgias began teaching. As a young man he did not join the Sophists, but became a pupil of Socrates (died 399), whose mercilessly probing questions against hasty, preconceived or unacceptable opinions (called Maeutics: "midwifery") he understood as an unconditional search for the sole truth. Plato opened around 386 BC. His philosophical academy and takes to the field against the sophistic competition, initially to the worst in the dialogue “Gorgias” (Plato, Werke 1957 ff.). There, in a (fictitious) debate with three sophists, Socrates tears one of the opponents to the boastful admission that speakers have the power to “kill like the tyrants whoever they want, and rob (them) of property and expel them from the city whom they think is good ”(Plato, Gorgias 466 c). They succeed in doing the same, explains Socrates, where they abuse verbal power to speak to the common people to the mouth (Gorgias 463b ff.). A good decade later, in the dialogue “Phaedrus”, Plato (again based on the authority of Socrates ’) relativized his judgment: It was not directed against the true, high art of speaking and writing. The criticism of the sophists, however, remains relentless. A good speaker can only be someone who knows the truth and follows it: "Because day and night not being able to distinguish between the just and the unjust, the bad and the good, that is ... the most shameful, and even if the whole people praised it" (Phaedrus 277 d / e). Plato assumes that the truth is recognizable; the way to knowledge is the dialectical method, namely the dissection, analysis and synthesis related to a whole (265d - 266b), but the first condition remains the insight into the essence of the soul (270c - 272c, with 246a ff .). The speaker's mission is to spread the truth; it is legitimized by the fact that the truth needs a mediator in order to be effective. And finally speaking with a view to the listener / reader: The true speech has to serve the "guidance of the soul", in public as well as in private life (261 a, 270 c ff.). Understood in this way, rhetoric is an additional qualification of the philosopher in the service of truth. Sophists, however, since they rely on “appearances” instead of the essence of the thing, would only deliver illusions (Plato, Sophistes 232b ff.); where the difficulty of distinguishing appearance and being will be helpful to them (Sophistes 236d ff.).
3. Non-Plato's (elitist) academy is the preferred educational institution in Athens during the lifetime of its founder. Isocrates (436 to 338 BC), a pupil of Gorgias ’, founded around 390 BC. Chr. The most successful Attic speaking school, which he leads according to constant principles until old age (Fuhrmann 2011, p. 24 ff.). In addition to letters and fragments, 21 speeches by him have survived (Isokrates 2003 and 1993/97); some present his rhetoric programmatically. Isocrates too has a philosophical starting point (which Platonic truth rigorism does not recognize as philosophical): the point of view of the skeptic. Without being a nihilist, like his teacher, he considers it impossible to necessarily derive human action from “true” premises. The way out within the limits of reason is to use experience and probability as a yardstick and to include the opinions of others in the calculation. Only those who “know how to make good use of the circumstances, how they arise day after day, and who have an opinion at the right time, an opinion that generally leads to an advantage” can act successfully ”(Isokrates, Panathenaikus = Speech 12 , 30; 2003 Vol. III, pp. 7, 15). This striving for advantage is not the “master morality” of the sophist Callicles, according to which suffering injustice is worse than doing injustice and by nature is more due to the stronger than to the weaker (Plato, Gorgias 483 a ff.). Isocrates relies on the moral (secondary) effects of individual ambition: Anyone who wants to gain praise and prestige will speak in such a way that they display a generous, decent disposition and unmistakably take the obligation to the common good seriously. In the speech fragment "Against the Sophists" (around 390 BC) Isocrates distances himself from the sophistic competitors; not only from excessive verbal power, also from false pedagogical expectations: the good speaker is not made in the classroom; More important are talent and practice, supplemented by the example of the teacher. To teach and learn the common elements of speech is easy; speaking, however, includes using the knowledge learned appropriately depending on the situation and the situation of the individual case (Isokrates, Contra Sophistas = Rede 13; 2003 Vol. III, p. 64 ff.). In the 354 BC The eighty-five-year-old reaffirmed the three pillars of his educational program with persistent optimism: an inquisitive person “will be able to speak well and think well at the same time”; the advantage he strives for is not “what is thought to be by the incomprehensible”; He is credible because he “does not neglect virtue” (Isokrates, De Permutatione = Rede 15, 275-278; 2003 Vol. III, p. 134 f.).
4.Aristotle from Stageira (384 to 322 BC) came to Athens at the age of seventeen to study at Plato's Academy, later became a teacher there, but left the city after Plato's death and worked, among other things, at the Macedonian court as tutor to Alexander III (later "the great"). After his return to Athens, which was now ruled by Macedonia (from 338 BC), he set up his own school; his students are called peripatetic because the lessons take place in a foyer (peripatos). Aristotle's view of rhetoric began around 335 BC. Written down in BC. However, a textbook on rhetoric is a few years older and is the only one from the circle of sophists that has been completely preserved. The speech teacher Anaximenes from Lampsakos, also a teacher of Alexander III, was revealed as the author; a forged dedication letter “Aristotle to Alexander” had initially led to the work being attributed to the alleged sender of the letter (Anaximenes 2000, Gohlke 1959). Anaximenes, "the best known average rhetorician of Greek classical music" (Fuhrmann 2011, p. 29), has structured the most common teaching material according to the usual pattern of learning aids and reference works of the time: Presented are (seven instead of the usual three) types of speech Depending on the reason for the speech, the usual evidence (e.g. the probability inference) and stylistic devices, and finally the individual parts of the speech in connection with the arguments that can be used in each case. In contrast to such instructions for use, Aristotle's "rhetoric" is on the one hand shaped by the scientific interest of the philosopher who wants to comprehensively understand how nature, people and society function; at the same time, however, the knowledge gained is intended to serve practice, in this case the training and work of qualified rhetors. A certain life-wise willingness to compromise with regard to the practiced status quo separates Aristotle from Plato (Fuhrmann 2011, p. 33), who dealt with the topic predominantly with polemical aversion.
5. The subject of science is rhetoric for Aristotle in two ways.On the one hand, in recognizing the methods that a speaker can use to convince his addressees; To this extent, the rhetoric theorist works epistemologically, because he seeks and finds (“criticizes”, to use Kant's term here) “means of persuasion” that “aim at the matter” (Aristotle, Rhetorik I, 1, 1 ff.). They are to be distinguished from "suspicion, pity and similar affects of the soul", which target a person, e.g. the judge. The speaker then moves in the scientific field, whose task it is not "to persuade, but to examine what is credible in every thing" (Rhetoric I, 1, 14). But the speaker cannot rely on objectivity alone; In addition to the convincing evidence, Aristotle names three reasons why listeners “believe him: insight, virtue and goodwill”. The doctrine of virtue (ethics) tells him how the speaker succeeds in appearing insightful and righteous; Benevolence is won or gambled away through affects (Rhetoric II, 1, 5 ff.). Aristotle deals with rhetorically relevant affects and how they are to be generated just as extensively as he develops a psychology of the listener. In it he represents the character depending on the age and living conditions, especially on the social status of a person (Rhetoric II, 2 ff. And II, 12 ff.). In the chapters on language, Aristotle goes on the search for new, previously neglected insights, starting from the basic idea of all rhetoric: “It is not enough to know what to say, but also, of necessity, how one should say this ”(Rhetoric III, 1, 2). Linguistic expression reaches perfection where it is “appropriate” (Rhetoric III, 2, 1). Taken as a whole, Aristotle's “rhetoric” is not a comprehensive systematic textbook (as Quintilian will present it, see 8 below), but rather a “memory aid” for the author on the status of his own research and for teaching (Fuhrmann 2011, p. 33).
6. After the end of Greek democracy, in the subsequent epoch of Hellenism, the field of rhetoric changed. Until now it was mainly geared towards public speaking, but it is now becoming the subject of general bourgeois education and ensures a high standard of argumentation and style in oral and written communication in general (Fuhrmann 2011, p. 38 f.). Greek, as a world language spread across the Mediterranean, is also the language of rhetoric in theory and training. In the up-and-coming metropolis of Rome, Greek teachers are so successful that a senate resolution in 161 BC. Chr. Recommends the praetor to monitor the foreign philosophers and rhetors and, as soon as “this is beneficial to the state”, to expel them from the city (Sueton, De rhetoribus I, Fuhrmann 2011, p. 45. f.). The consequence of the conservative fear of foreign infiltration, however, will not be the suppression of rhetoric, but, from the turn of the 2nd to the 1st century BC. Its latinization. The rhetorically polished (instead of just natural) political speech is experiencing a renaissance in the institutions of the Roman Republic (Fuhrmann 2011, p. 44 f.). The oldest extant rhetoric textbook in Latin is the one from around 85 BC. "Rhetorica ad Herennium", written by the unknown author and dedicated to a recipient Herennius (Auctor ad Herennium 1998). Cicero wrote his youth work “De inventione” so closely based on this that for a long time the authorship of the “Rhetorica” was ascribed to him. The emerging Latin literature also provides information on the development of rhetoric since Aristotle's death. Hermagoras from Temnos (2nd century BC) and his status doctrine (IV.5 below), which is important for the court speech, is known only through later works.
7. Classical Roman rhetoric is associated with two supreme names: Marcus Tullius Cicero (106 to 43 BC) and Marcus Fabius Quintilianus (around 35 to 100 AD). Both are at the same time the supporting pillars of the history of the impact of rhetoric until today. - Cicero had studied at the Academy in Athens, his teacher Philon from Larissa had broken Plato's spell and included rhetoric in the teaching program for the first time. Throughout his life Cicero will understand rhetoric as a philosophical discipline: without eloquence there is no human culture; the speaker preserves wisdom and a sense of responsibility from abuse of his art, society is protected by the resistance of the decent (Fuhrmann 2011, p. 51). Rhetorical mastery, combined with a risk-free commitment against blatant injustice, is already demonstrated by Cicero in his first major appearance. In 80 BC He takes over the defense of Sextus Roscius, whose father was robbed of all property by false accusations after the end of the civil war and then murdered; in order to get rid of him, the son is charged with parricide. Cicero's defense speech (Reden I, 1993; analysis by Gast, 2006a, Rz. 589 ff.) Leads to acquittal, opens up a brilliant career as a speaker and a collection of speeches that, thanks to stylistic mastery, will become the epitome of classical Latin. - Even before the Roscius case, Cicero was planning a comprehensive work on the fundamentals and tools of rhetoric. The execution remains a fragment and has been given the title “De inventione” (“On the discovery of the material”) because it describes the essential steps in preparing a speech. The main philosophical-rhetorical work of Cicero, "De oratore" ("From the speaker"), is 55 BC. And is considered to be "the most important representation of the rhetoric left by antiquity" (Fuhrmann 2011, p. 52). It consists of three books in which, after a preface by the author, famous Roman speakers at a fictional event in 91 BC. Occur; one of them has to speak as the main speaker on a branch of rhetoric and defend his opinion against criticism. The first book deals with the comprehensive education that the perfect speaker must have as well as a good measure of talent; But there is also an empiricist who, as a specialist in what is feasible, defends the distance between ideal and reality. Books 2 and 3 are devoted to the five officia oratoris, that is, the necessary building blocks of the teaching of speech (see IV.2 below). In addition, in 46 BC The dialogue "Brutus", which offers a history of rhetoric, and at about the same time "Orator", a monograph on the style of speech. The small script “Topica” (“The Art of Arguing Correctly”) was written during a sea voyage in July 44 BC. BC, completes Cicero's literary work as a rhetoric teacher. The orator Cicero soon became the victim of his last speech cycle: with his "Philippine speeches" he fought the consul Marcus Antonius, was 43 BC. Outlawed and murdered.
8. If with “De oratore” Cicero left behind a representation of rhetoric striving for perfection, we owe Quintilian the 150 years younger, optimally complete presentation. Quintilian, born around 35 AD in Calagurris, Spain, studied in Rome and initially returned to the provinces as a speech teacher. Nero's successor Galba calls him to Rome in 70, where he becomes the first state-paid professor of rhetoric (Seel 1987, pp. 19, 75). Towards the end of his life he wrote his textbook addressed to a teacher of eloquence (Fuhrmann, 2011, p. 70; Rahn 1995, p. XXI). The "12 books for the training of speakers" (Rahn 1995) offer the entire subject matter of classical rhetoric, combined with numerous tips on the practice of teaching material. The second book deals with the teaching of rhetoric: e.g. the correct starting age of the students; Rules of conduct for the teacher-student relationship; the exercises for beginners, with recommendations for accompanying reading. Standards that Quintilian applies to the character and behavior of the teacher are reflected in requirements for the ethos of the speaker. Since Isocrates, the theory of rhetoric revolves around the question of how the abuse of formal "persuasive" methods can be prevented. At Quintilian, the tendency to upgrade the non-technical part of the speaker's qualification reaches a climax. Only the vir bonus, the man of honor, could fill the role of the good speaker (Quintilian XII, 1, 1).
9. Quintilian's successors are minor masters who manage the rhetorical legacy, occasionally adding refinements. What has been preserved from her writings is collected under the title “Rhetores Latini minores” (Halm 1964). Isidore, Bishop of Seville and encyclopedist, testifies to how classical rhetoric is assessed on the threshold of the Middle Ages: It is presented “in such abundance and so diverse” that “the reader is in a position to admire it, but not to understand them ”(Etymologiae II, II 1, Möller 2008, p. 85). In the twenty volumes of his "Etymologiae", Isidore (around 560 to 636) has compiled not only Christian doctrine but also the ancient knowledge still accessible to him in the compact and abbreviated form of a lexicon. The seven "liberal arts" (artes liberales) out; a canon of subjects with grammar and logic ("dialectics") at the top of which is rhetoric ("trivium") and which is the basis of any school education until the end of the 18th century (Ueding 1992, keywords "artes liberales" and "artist faculty") . In the post-ancient history of education, phases of the highest esteem for rhetoric alternate with those of repression and demonization to this day. The epistemological ideal of high medieval scholasticism requires that results be analytically derived from established premises. Lead to the premise via inventionis, the way of discovery; the premise begins via iudicii, the way of correct judgment. The judgment (as a category of logic) is determined by reason (judicium ... est recta determinatio rationis) and traces questionable objects ("theses") back to the respective principle to which they already belong as something "principled" (resolvit principiata in principia) (Thomas von Aquin, Summa theologiae I, 79, 8; II, 57, 6; Ignotus Auctor 1980, 655 c). At the same time, however, a culture of argument is flourishing (disputatio), which is practiced in university operations, but also in pamphlets by authors such as Thomas v. Aquin is cultivated, in both cases using all available rhetorical means and with the aim of gaining the consent of the addressees (listeners, readers) (Pieper 1986, p. 109 ff.).
10. The full range of rhetorical instruments is only available again after texts by Cicero that were lost at the beginning of the 15th century, above all a complete copy of “De oratore” (Lodi near Milan 1421) and the equally complete Quintilian “De institutione oratoria “(St. Gallen 1416) were found. Discoveries like these contribute to a paradigm shift driven by humanism: Stricter towards others sapientia with its inescapable logic, a more open, freer one is established prudentia as practical wisdom. When it comes to questions of correct behavior, rhetoric replaces philosophy (G. Schröder 1997, p. 11 ff., 22 ff.). “The validity, the image that one has with others, (is) what is actually significant and decisive” (Schröder 1997, p. 22), and wishes for validity become the yardstick by which a person aligns his appearance in society. The Prudentia literature of the 16th to 18th centuries concretized this program in a flood of guides. The late Renaissance courtier received a guide in the “Cortegiano” of Count B. Castiglione (1528), the concept of which was to “make the strategic guidelines of ancient rhetoric accessible to a non-academic audience in an updated form” (Hinz 1997, p. 125 ff.). The literary life aids are based on courtly behavior, but this exerts a fascination that transcends the spheres of life, so that the vita civilis the bourgeoisie draws role models from there (Barner 1970, p. 138 ff.). Other instructions are aimed at the “politician” in the absolute princely state with all regulatory chancellery. H. the mostly bourgeois court officials and bring them closer to rhetoric as an instrument of bureaucratic communication (Barner 1970, p. 167 ff., 176 ff.). The letter style plays a not insignificant role here: die ars (bene) dicendi modified to ars dictandi (Barner 1970, pp. 129, 156). The Enlightenment as an increasingly relevant intellectual movement was at least busy throughout the 18th century with dissolving the rhetorical model of existence and countering it with the ideal of rational action and speech. A refined remnant of the rhetorical arsenal remains recognized. Even Kant, who stands for "eloquence" (ars oratoria) has nothing left but contempt, distinguishes it from “sheer goodwill (eloquence and style)” as a method of artistic expression that is not persuasive but rather “unintentional” (Kant, Critique of Judgment, B 216 f.).
11. Embedded in the history of rhetoric is the interplay of rhetoric on the one hand, legal practice and jurisprudence, which was inseparable up to the 19th century (then nominally broken off). Classical Greek legal culture without lawyers is a synthesis of philosophy and rhetoric; Philosophers develop the content of the concept of justice, rhetoric teachers carry the methods of finding law, the lógos dikanikós at (Glau 1996, p. 1 ff.). In Rome speakers and lawyers compete with each other for the opportunity to appear as lawyers. For Cicero, admittedly not for all of his contemporaries, it is a matter of course that a speaker who takes on legal representation has legal understanding and the necessary legal knowledge (De oratore I, 166 ff .; also Quintilian XII, 3). The legal ignoramus embarrassingly appears too often in court, but does not deserve to be called a speaker. Ciceros alter ego in “De oratore”, Crassus, the charge is drawn that for him “a legal scholar is nothing more than a cautious and astute law-maker, a crier in court, one who drags down formulas” (De oratore I, 236). In the period that followed, the weights will shift in favor of lawyers who are increasingly trained in rhetoric. One of the reasons is the (admittedly slowly progressing) objectification of law. Opinions of renowned legal scholars, which a speaker could cite as exemplary (“evidence of authority”) or dismissed as absurd, depending on their interests, became laws in Ostrom as early as 534 within the Corpus Juris; From the 12th century onwards, the “reception” in the west ensured the spread of the rediscovered Roman law, which was initially used by scholars at the northern Italian schools of law ratio scripta ("Written reason") is explained and finally as a "common right" also in the Holy Roman Empire is subsidiary. On the other hand, lawyers benefit from a paradigm shift in procedural law, namely the transition from the oral to the written procedure that began in the 4th century. The legally active rhetorician loses his stage and has to move to the office. The ideal type of the omni-competent rhetorician / orator, once embodied by Cicero, is reduced to the theorist and teacher of general rhetoric, i.e. for the fundamentals and methods of eloquence. When looking for ways to solve current legal cases with the help of Roman legal propositions, lawyers in the 12th century tried out their own argumentation techniques (Hohmann, Rhetorik Jahrbuch 1996, p. 35 ff. And 1998, 791 ff.), But then they did to swing into a rhetorical core method: the (Ciceronian) topic (Otte 1974 and 1998, pp. 17, 19 ff). Since the 16th century, legal topics have become a flourishing branch within legal specialist literature. Probably the most successful among numerous textbooks are the “Loci argumentorum legales” by the Dutchman Nicolaus Everardus, first printed in 1516 and a total of 28 times up to 1662 (Otte 1998, p. 20). The 131 represented by Everardus loci (Greek topoi) are references for arguments; one can also say: “Keywords with which arguments can easily be associated” (Otte 1998, p. 21). That is to say, arguments which in turn make a certain interpretation and application of a given legal principle plausible. Like the rhetorical lawyer, a practically inexhaustible source of loci can appropriate, says Valentin Wilhelm Forster in his "Interpres" (1613): Accordingly, comprehensively formed, he will be arguments from all sciences (historica, arithmetica, geometrica, physio-medica, ethico-politica) win. Cicero's ideal of the educated speaker is thus transferred to the lawyer. The German encyclopaedist J.G. Only compare Sulzer to a long list of printed French court speeches from the 17th and 18th centuries with the laconic remark for the German-speaking area: "We do not have judicial eloquence" (Sulzer 1794, p. 40). At the same time, however, rhetoric was practiced in writing on a large scale on a scientific level: through a flood of reports that law faculties provided to litigants on request (Falk 2006). - In the shadow of lush topoi and loci catalogs, the tendency spread in the 18th century to “escape rhetoric in the law and place it on a logical-scientific basis” (Hohmann 1998, 802). The now emerging hermeneutics also wants to prevent generous and opportune handling of legal clauses with the help of a manageable canon of methods and to determine and enforce their true meaning. This program replaces the baroque topic in the transition from the 18th to the 19th century (Hohmann 1998, 810; Fuhrmann, Rhetorik Jahrbuch 1989, p. 43 ff .; Fuhrmann 1983; H. Schanze 1974).
12. In the course of the Napoleonic reforms, the (re-) introduction of public, oral court proceedings goes hand in hand with the methodologically, as it were, official end of the legal topic and thus of legal rhetoric. This creates a situation in which the court speech can flourish again (more cautiously said: could), admittedly not with its former creative legal status. For the pleading in court, in the 19th century, based on the English and French model, German textbooks soon appeared (KS Zachariä, "Instructions for judicial eloquence", 1810; CJA Mittermaier, Instructions for Defense Art in Criminal Trials, 1814, 4th ed. 1845; OLB Wolff, "Lehr- und Handbuch der gerichtlichen Beredsamkeit", 1850). Finally, H. Ortloff, "Die gerichtliche Redekunst", calls for a simple, sober speech in the "spirit of the Germanic people's character" (1887, p. 11) in a sharp departure from French (still Ciceronian) court rhetoric. Finally, as models for clarity and simplicity of expression, recommends the "German speech teaching" of Bamberg high school professor Hans Probst - the German classics (1905, p. 107 ff.)
1. Rhetoric is a system of linguistic means that a person uses when speaking or writing in order to assert a certain opinion. It was shaped in the first 500 years of its documented history, from Gorgias to Quintilian. When, at the end of the 18th century, the rhetoric teacher JG Sulzer took stock of the state of the “fine arts”, he stated: “The modernists have left the theory of this art almost where the ancients stood still.” He knows no more recent writings which he “could recommend to someone who has studied the Cicero and Quintilian for a further study of the theory” (Sulzer 1794, p. 45). Accordingly, the “New Rhetoric” formulated since the 1950s is above all one thing: the attempt at a renaissance (Fey 1979). The following sketch therefore does not lead through a museum of intellectual history, it shows the fundamentals of current legal rhetoric.
2. The rhetoric has always used what is now called “checklists”. One such list represents the five officia oratoris before, as building blocks of the teaching of speech, structure scheme for textbooks and as a sequence of operations when creating the speech. Quintilian lists them according to tradition. your name is inventio: Inventing or finding the subject matter; dispositio: Structure of the material, structure of the speech; elocutio: Stylization, the choice of the right stylistic devices; memoria: Memorization for the free lecture; pronuntiatio sive actio: Implementation, lecture (Quintilian III, 3, 1). - Inventio, "inventing (excogitatio) true or more probable facts that should make the case credible ”(Cicero, De inventione I, 9), happens not only at the beginning of the production of a speech, but accompanies the work with improvements and harmonization of the statements until the speech is finished.
3. There is no such thing as “speech in itself”, it is always about an object, has a topic. The distinction between three types of "speech" goes back to Aristotle: the speech before the popular assembly, called "advisory speech" (in Latin authors genus deliberativum); the speech before the judge, "court speech" (genus iudiciale); the "ceremonial speech", which gives either praise ("funeral speech") or censure (genus demonstrativum) (Aristotle, Rhetorik I, 3, 1-3; Cicero, De inventione I, 7 and De oratore II, 41 ff.). Quintilian defends this tripartite division against all attempts to differentiate more strongly and thereby confuse the overview; if each purpose of speech ("complain, comfort, appease, cheer", etc.) justify its own genre, these would hardly be counted (Quintilian III, 4, 2 ff.). In the following years it stayed with the three number.
4. A fundamental dispute with which Cicero in particular struggled for a while concerns the scope of the subject matter: Is a speaker allowed to talk about anything (as Gorgias had meant), or only about individual cases? Between the concrete case (causa) and the fundamental, general issue (questio) a strict line must be drawn, rhetoric and speakers are only located in the first area (De inventione I, 8). General subjects are hence a matter of philosophy. Later, Cicero demands, most clearly in “Orator”, that “the speaker - not the ordinary, but the perfect one - should, whenever he can, detach the dispute from the given persons and circumstances of the time ... (because) that what has been proven by the whole must also count as proven for the part ”(Orator 45 f.). The appropriate terminology now differentiates between a question that is limited by the facts of the individual case (quaestio finita), and the unlimited question posed without such concretization (quaestio infinita) (Cicero, De oratore III, 107, 120 ff .; Quintilian III, 5, 5). In order to correctly separate both types of questioning, the speaker needs philosophical training (Cicero, Orator 16).
5. It is part of the art of the speaker to determine precisely the subject of his speech from the outset. Exemplary: Every legal dispute has “a point about which the judge's verdict is to be pronounced”, and therefore “that will be the status of the whole case, of which both the speaker knows that he will defend it, and the judge that he will it must be heed most ”(Quintilian III, 6, 9). The doctrine of status (Greek stasis), elaborated on the scheme by Hermagoras from Temnos, handed down in the version laid down by Cicero (De oratore II, 104 ff; Orator 45) and Quintilian, the core of the case revolves around the guideline of three questions
(1) The question to sit: whether something is, determines that status coniecturalis, "Presumption Status". This is about whether and in what way, with which process and which participants something happened (Quintilian VII, 2, at 2, 7 and 18). The legal case is justified by “the first clash of the points of contention, which emerged from the rejection of an accusation, e.g. in the following way: 'You did it.' - 'I did not do it.'” (Cicero, De inventione I, 10 ).
(2) The question quid sit: what it is leads to the status finitivus, "Definition Status". Those who cannot deny that they behaved in a certain way will deny that they thereby committed the offense against which they were charged (Quintilian VII, 3,1). Now it is a question of the legal relevance of a behavior, i.e. the relevant legal term. Quintilian gives a “well-known” example: A defendant has taken a gold coin from the temple; he says he found her on the floor. His defense lawyer has to define “theft” so narrowly that “finding” cannot be subsumed under it. If it is not possible to justify the correspondingly narrow definition (in classic terminology: "to prove"), it can still be disputed that this theft fulfills the worse offense of "temple robbery" (Quintilian VII, 3, 22).
(3) The question quale sit: as it is, concerns the status qualitatis, "Condition status". What is meant are the legal modalities of the determined and termed offense. One can argue, for example, about their justification, their "diminution" or their excuse (Quintilian III, 6, 81 and VII, 4, 3); The act would be “reduced” by mitigating circumstances (VII, 4, 15). - However, a legal dispute can be limited to how a law or a document is to be interpreted; it is sufficiently determined by the constitutional status (Quintilian VII, 5, 1 ff.). - Quintilian considers the three-part scheme of the case solution to be so mature that there are others that are up for discussion status-Fformen refused (Quintilian III, 6, 13 ff. On counter-opinions Wesel, 1967).
6. The speaker has to bring the abundance of material he has created into an arrangement in which he can effectively present everything that matters to (him). The rhetoric gives him a tried and tested blueprint for this. Aristotle, however, is content with a dichotomy because he wants to cover all three types of speech with it: “You have to explain the facts of the case (próthesis) and prove what has been said (pístis) “(Aristotle, Rhetoric III, 13, 1). Nevertheless, he gives tips on the introduction and conclusion of the speech (Rhetoric III, 14 and 19). The early Cicero has six compulsory speech parts: Introduction (exordium), Statement of the facts (narration), Classification of the substance (partitio), Affirmation (confirmatio), Refutation (reprehensio) and end (conclusio) (Cicero, De inventione I, 19). This structure is determined by the court speech used as an example. In “De oratore” Cicero expands the same scheme without following his earlier terminology (De oratore II, 315, 326, 331, 332). Finally, Quintilian, also on the pattern genus iudiciale fixes, states: The parts of the court speech "are five in the opinion of most authorities: Introduction (prooemium), Narrative (narration), Evidence (probatio), Refutation (refutatio), Closing words (peroratio) “(Quintilian III, 9, 1). Isidore of Seville then cuts it to four parts by submitting the parts devoted to proof argumentatio summarizes (Isidor, Etymologiae II, VII 1, Möller 2008, p. 89). Behind the differences in Cicero and Quintilian are no differences in the concept of content.
7. The individual parts of the speech:
(1) The introduction (where Quintilian is the Greek foreign word “Proömium” and the Latin exordium prefers). It should be "the mind of the listener" (anima auditoris) prepare for what is to come (Cicero, De inventione 19; De oratore II, 315 ff.). Every speaker wants to achieve three things, namely that the audience should be "benevolent, excited and teachable" (benevolum, attendum, docilem) listen (Cicero, De inventione I, 20; Quintilian IV, 1, 5). An inclination that is supposed to persist throughout the speech; in order to evoke them, the beginning must be "precise, astute, rich in thought and appropriate in the linguistic form, but above all relate exclusively to the respective case" (Cicero, De Oratore II, 315). The speaker finds points of contact with people and events in the case, expectations and prejudices of the audience, opinions and values of the judges as well as in legal texts.
(2) The narration of the facts. Facts are presented, prepared as a legal case, i.e. against the background of definition and quality status as well as with consideration of the evidence. In any case, the story is short, clear, credible (Cicero: brevis, aperta, probabilis; Quintilian: lucidus, brevis, veri similis) (Cicero, De inventione I, 28 f .; Quintilian IV, 2, 31, 36, 52).
(3) The evidence. Cicero's additional bullet point partitio, namely the announcement of the objective of the evidence and presentation of the evidence, includes Quintilian in the demonstration as a prelude to it (Quintilian III, 9, 2; IV, 4 and IV, 5). Now it is a matter of supporting and reinforcing the narrated facts (Cicero, De inventione I, 33 f .; De oratore II, 331; Quintilian IV, 3, 1). The narrative works primarily with factual assertions; What of this is neither evident nor undisputed, the speaker must now make credible. In this context, it may be necessary to also prove the terms from the definition status (5. (2) above) as "correct". - Details of the evidence below 9.-12.
(4) The refutation. It must "rebut what has been claimed by the other side" (Quintilian V, 13, 1), whereby there is a necessary connection between the affirmation of one's own and the rebuttal of the opposing assertions (Cicero, De oratore II, 331). Three avenues of resistance are open: to deny; To refute allegations; to shift as much of the burden of proof as possible (aut negandum aut defendendum aut transferendum) (Quintilian V, 13, 4). In the role of the plaintiff, a speaker can be tempted to refute possible statements of the opponent in advance; a practice that Quintilian dismisses as too risky. Unless we can announce opposing things "with certainty, because nothing else comes into question" (Quintilian V, 13, 46 and 49). There is a chance for a later defense after the two main speeches in which altercatio (Exchange speech): here “there is the bitterest fight, and nowhere is fighting with the naked weapon” (Quintilian VI, 4, 1-8). This fight (of course with words) is often fought out by specially trained assistants of the lawyer, the "swarm of gray coats" (pullata turba). - The visible argument is only the tip of a rhetorical iceberg; Quintilian never loses sight of the opponent: “I tried no less to think through the opponent's situation than my own. And the first thing I tried to do was to find out What every party wanted to reach then by which“(Quintilian VII, 1, 5 and 6 ff.).
(5) The final word. The speech should "close with a special climax, in that the judge is either inflamed or appeased" (Cicero, De oratore II, 332). Quintilian aims to combine facts with “emotional effects” (Quintilian VI, 1, 1). However, since he is mindful of the speaker's ethos, he wants to use emotions (adfectibus) only work “if true, just and charitable goals cannot be achieved in any other way” (Quintilian VI, 1, 7).
8. The speaker's work is made easier if he can receive appropriate rhetorical aids for typical cases. Such a typology has existed since Auctor ad Herennium (Auctor I, 5); Cicero designed them subtly (De inventione I, 20 ff.). It lists five types of case, graded according to the degree of difficulty that it presents to represent a case (especially in court). The matter can be good, less good or extremely badly defensible. The five genera are recorded under the name genera causarum (The same designation is used for the three types of speech, 3. above), commonly translated as “degrees of justifiability” (Lausberg 2007, § 64, p. 56 ff .; Gast 2009, 1115 ff.). Quintilian enumerates: A case is honorable (honestum), low (humile), doubtful or ambiguous (dubium vel anceps), surprised (admirabile) or dark (obscurum genus). On his own initiative he adds the case type "shameful" (turpe genus) (Quintilian IV, 1, 40 f.). The degrees of justifiability are usually dealt with in connection with the proömium: the speaker should avoid any bad impression from the start or eliminate it at the first opportunity.
(1) The honorable case. The matter corresponds to the sense of justice of the audience; As a result, it already has “enough profitable things of its own accord”, in contrast to cases that “have to be helped” (Quintilian IV, 1, 41).Favored by the positive pre-understanding is one party to the litigation, the other side at a disadvantage from the outset: for them the matter is “surprising”, if not downright “shameful”. A speaker can, however, gamble away his lead by appearing immodest or overly confident (Quintilian IV, 1, 55).
(2) The case is “low”, namely irrelevant, insignificant, the judges perceive the matter as a nuisance, the audience as boring. The attempt is directed against this to present an unusual background, a plausible motive for the legal dispute. This could spark interest.
(3) The ambiguous or doubtful case. Different is meant. Either the status of the case is disputed; then you have to introduce yourself to the point in dispute. Or the matter contains “partly shamefulness, partly honesty”, so that the listener vacillates between repulsion and benevolence; here “one should try to win benevolence so that the case appears to be carried over in the honorable way” (Cicero, De inventione I, 21). In general terms: “From what is disturbing, we should take refuge in what is favorable” (Quintilian IV, 1, 44).
(4) The surprising case. What is meant is an "alienated" (alienatus) Dispute; the distancing can extend to hostility (Cicero, De inventione I, 20, 21). The speaker represents a party that is contrary to the "general sense of value and truth", e.g. has behaved hypocritically, excessively selfish, inconsiderate (Quintilian IV, 1, 44). Cicero recommends the means of "ingratiation" (insinuatio); an attempt is made to reduce the listener's existing affection for the opponent (De inventione I, 21, 24). It is too risky to solicit goodwill from hostile listeners. Quintilian (IV, 1, 44) also advises here, where sympathy cannot be won, at least to reduce hatred.
(5) The dark case. It is difficult to understand in fact or in law. The only thing that helps here is to arouse curiosity and to untangle the threads (Cicero, De inventione I, 21; Quintilian IV, 1, 41).
(6) The case is "shameful". It inspires disgust for one side, compassion for the other (Quintilian IV, 1, 42), or at least benevolence for them. Because of the severity of the cases, Quintilian wants to create a genus of its own from this; As a particularly blatant form, it is usually assigned to the “surprising” genre. Cicero uses the "ingratiation" recommended by him on one causa turpis, the defense of the alleged patricide Sextus Roscius (above III.7.), successfully: From the beginning, increasingly convincing, the other side is accused of the crime.
9. The penchant for systematisation continues with evidence. Evidence, also known as a means of making believable or convincing, is (viewed in terms of success) everything that proves a factual assertion to be true or at least probable or credible, and also what makes the judgment about the facts plausible. Aristotle makes a dichotomy (which, however, has nothing to do with the modern epistemological separation between empirical statements and value judgments): Means of persuasion are either available, i.e. are not first established through rhetoric (átechnoi písteis), or they can be "created by methodical guidance and by ourselves" (éntechnoi písteis) (Aristotle, Rhetoric I, 2, 2). Cicero (De oratore II, 116) and Quintilian (V, 1, 1) continue the distinction: they have "acquired almost general recognition".
(1) Aristotle names five “atechnical” pieces of evidence that “peculiarly belong to the court speech”: “Laws, witnesses, contracts, torture, oaths” (Rhetoric I, 15, 1). Cicero extends this list of the genus inartificiale probationum: Everything that is "not found out by the speaker but presented to him" belongs here, e.g. also previous judicial decisions or legal opinions (De oratore II, 116). Quintilian urgently warns of an apparently not uncommon misunderstanding: Although all of this is available “in itself”, one can nevertheless “use means of art to weaken and break the power of such things” (Quintilian V, 1, 2). Or on the contrary, in order to develop the potential of what already exists: court rulings (praeiudicia), which occurred in similar cases, are suitable as examples (exempla) and therefore as material for “rhetorical induction” (V, 11, 1 f.), that is, “transference”. On the one hand, testimonies can be directed through questions, on the other hand they provoke a dispute about the credibility of the witness (V, 7, 8). Finally, laws and documents only appear as texts; the speaker has to interpret them, the interpretation checks the "wording and intent" of the regulation and resolves contradictions between different regulations (VII, 5, 5 f., VII, 6 and VII, 7). For Quintilian (V, 4), the torture contained in the list was more of a threat where unconditional truth was required, but it was of dubious probative value in general.
(2) The manageable collection of given evidence contrasts with an abundance of what rhetoric teaches the speaker to seek, find and apply “within his art”. Aristotle creates a first (incomplete) overview by forming three groups: arguments based on ethos, which are based on "the character of the speaker"; Proving credibility with the help of pathos, which “puts the listener in a certain mood”; Finally, evidence through the logos, namely through strictly applied, but above all through rhetorically modified logical conclusions (rhetoric I, 2, 3 and 8). Cicero and Quintilian also carry on this classification; the field of "internal technical" evidence is called for them genus artificial probationum.
10. The evidence ethos and pathos:
(1) Aristotle explains why ethos (which can be translated as “character”, “sense”, “morality”) is conclusive: “We believe the virtuous better and faster”; therefore, “the speaker's moral way of life” supports his credibility (Rhetoric I, 2, 4). Character-forming factors, however, are also the “type” of a person (e.g. man or old man) and the “way of life” (e.g. as a farmer or, in contrast, as a speechwriter); Those who choose their words according to their own living conditions are more credible than someone who (in modern terms) falls out of place (Rhetoric III, 7, 6 f.). While Aristotle has such recommendations in mind the speaker who appears on his own behalf, with Cicero it depends on the ethos of several parties involved in the process: on the characteristics of the party and its lawyer, but also, for the search for points of attack, on ethical deficiencies on the other side Cicero, De oratore II, 182 ff.). Finally, Quintilian developed a demanding code of honor for speakers, which should be the basis of legitimation for their work (Quintilian XII, 1 and 2; Sprute 1991, p. 281 ff .; Seel 1987, p. 74 ff., 88).
(2) Pathos is supposed to support the speaker by “putting the listener into affect” (Aristotle, Rhetorik I, 2, 5); Affects are “emotions of the mind” (such as anger, pity, “just unwillingness” etc.) that influence a person's decisions (rhetoric II, 1, 8 f. And II, 2 to 11). The doctrine of affects constitutes a core area in Aristotle's rhetoric (III. 5. above). Cicero attaches no less importance to this counterpart to the idiom of ethos (De oratore II, 185); it shows how much sensitivity the speaker has to go to work in order to dispose of the bench as desired (De oratore II, 186 ff.). Quintilian summarizes ethos (in the narrower sense for him) as evidence and pathos as handling of affects in a chapter on the division and arousal of “emotional effects” (VI, 2). How different the two instruments can be used, Cicero had vividly described: The first “is pleasant and attractive, created to gain benevolence”; the other "violent, fiery, passionate: it can knock everything out of the hand of the opponent" (Orator 128). Dealing with pathos, however, is always a question of “appropriateness”, the key concept for stylization and delivery of the speech (13 below).
11. “Logos” is the key word under which rhetoric has been looking for links to “dialectics” (logic) since Aristotle in order to use logical final procedures without the flexibility of practice-oriented Prudentia having to suffer as a result. Aristotle translates the syllogism and induction into "rhetorical inferences".
(1) The syllogism is a combination of major clause (ScP, subject S contains predicate P), minor clause (XcS) and final clause (also XcP). If two of these sentences are given, the third follows necessarily. The logical-formal mechanism works conclusively in terms of content if the empirical statements used are verified and the value judgments used are undisputed (see VI.3. (1) below). Aristotle calls the rhetorical parallel to the logical procedure "Enthymem" (Rhetoric I, 2, 8). Since the speaker does not only find "necessary" (certain) prerequisites from which the desired result can be derived, he has to be content with conclusions "from probability" (Aristotle, Rhetorik I, 2, 14 f .; II, 22 and 23; Wörner 1982, pp. 73 ff .; Rapp, Kraus, van Zantwijk 2011). Premises that are probable or plausible pass on something of their quality through the path of the syllogism. The speaker benefits from the fact that he adheres to a thought pattern that communicates stringency. - Cicero treats the conclusion under the name ratiocinatio (De inventione I, 67 ff .; Quintilian V, 10, 6). The conclusion from the upper and lower clauses (“antecedents”) can be drawn in three ways: by means of an explanatory “presentation”, by means of a “simple conclusion” (per simplicem conclusionem), thus syllogistic, or by “summary” at the end of a proof (Cicero, De inventione I, 44 f.). The evidence is basically in five parts, since the relevant evidence has to be added to the pre-clauses; Exception: such a sentence establishes something indisputably necessary (not refutable) (De inventione I, 59 ff.). In the final form, depending on the evidential value of the premises, mandatory or merely credible results can be achieved (De inventione I, 43 f.). Cicero expects the perfect speaker to also master the whole field of dialectical methods, that is, compelling conclusions (Orator 115); he recommends that the argument should be concluded with a comprehensive syllogism (Orator 137). - For Quintilian (V, 10, 1-8), logical as well as rhetorical conclusions are naturally part of the "evidence". He mentions terminological disputes with a slight amusement: "Some have called the enthymeme a rhetorical ending, others an incomplete ending (imperfectum syllogismum), because the sentences are not clearly separated and not used in full, which of course is not necessarily required of the speaker ”(V, 10, 3).
(2) The second parallel to a logical conclusion is the “rhetorical induction” (Aristotle, Rhetoric I, 2, 8; II, 20, 1 and 9). The starting point is a “paradigm” - from the Latin authors exemplum - The example mentioned, which is not generalized, but is intended to serve as a model for solving a current case: a conclusion from something similar to something similar (Rhetoric I, 2, 19). The addressee of the speech will “approve of any questionable matter because of the similarity to the things to which he agrees” (Cicero, De inventione I, 51). However, the similarity between two events cannot simply be used like a given formula. Cicero explains that a similarity can be established by selecting suitable and recognizable elements (De inventione I, 54). Conversely, the opponent will “seek refuge in some unequal point in the case” (Quintilian V, 2, 3 and V, 11). Example can also be “a similar right”; the analogy is not an independent type of inference (Quintilian V, 11, 32 ff.). - Circumstantial evidence must be distinguished from working with examples. With him, as an interpretation of “signs”, it is about the relationship between the particular and the general (Aristotle, Rhetorik I, 2, 16). Clues are brought to the speaker “with the case itself”, he has to recognize their meaning (Quintilian V, 9, 1). Either they are “of a necessary nature”: something that happens inevitably (a woman “gives milk”, so she gave birth) (Aristotle, Rhetorik, I, 2, 17 f., Quintilian V, 9, 3 ff.). Or the sign is not compelling, its interpretation refutable ("he was breathing quickly, so he had a fever"), it is not suitable as evidence (Aristotle, Rhetorik, I, 2, 18). In the end, however, several non-mandatory signs can “make the suspicious circumstances appear certain” through their representable interaction (Quintilian, V, 9, 8 ff.).
12. The most important aid for the demonstration in practice is the topic. The role, if not the way of life, of the rhetorician demands that he constantly look for reasons that help an opinion he represents to gain recognition and success. It is not enough to master the thought steps of the logos or the art of appropriate pathos when the content of the speech hits the point badly. The topic shows the way to convincing evidence and strong arguments.
(1) The topic begins - not yet under this name, which Aristotle will give it - as a collection of rules of life (gnómai, Singular gnome), which a speaker can refer to for purposes of evidence (Anaximenes, Ars Rhetorika 38 and 48; Gast 2009, 1119). Aristotle characterizes the gnomes, called “sentence” in the translations, as a general statement about “what to choose or to avoid when acting” (Rhetoric II, 21, 2). It is either known and accepted by the audience (éndoxos); or surprise her (parádoxos), but can be justified briefly and succinctly (Anaximenes, Ars Rhetorika 49 f.). Both types can be used as premises in the enthymeme (Aristotle, Rhetorik II, 20, 1). The sentences are among the tópoi (Singular tópos, the place); They only make up a small proportion in the fundus of the topic. For Aristotle topoi are “general points of view in relation to law, nature, politics and many other things”; we have “general points of view for making the argument possible about every kind of useful and necessary” (Rhetoric I, 2, 21; II, 22, 16). According to this, a topos can prove something itself, such as the sentence, but above all it should play a decisive role in the development of conclusive sentences. Aristotle had compiled a few hundred topoi in his earlier work “Ta Topika” without explicitly defining “topos”; His interest there was determined by the fundamental question of how one “can come to conclusions from probable sentences” (Topika I, 1). In his “rhetoric” one finds different collections of material, partly with methodological-formal, partly with content-related (ethical, anthropological) topoi; some of them are applicable to all three types of speech (3. above), others only to one genre. - The Latin rhetoric adopts the name "Topica", translated topos literally with locus and give the proof argumentum. Cicero defines the topic as a procedure to find arguments "according to plan" without any wrong path (topic 2). Finding hidden things is easy "if the place (locus) is shown and marked “where they hide; Arguments are therefore sought where they "have their seats (sedes)" to have. The goal of the effort, the argument, is “a means that gives credibility to a disputed matter” (Cicero, Topica 7 f.). The same description of the topic is given by Quintilian (V, 20, 10). In addition, he clearly defines “argument” by purpose and use: An argument is “a sensible consideration that provides evidence to the argument, whereby something is inferred by something else and something doubtful is confirmed in its certainty by something indubitable” (V, 10, 11 ).
(2) Extensive, systematically ordered topoi / loci lists are provided by Cicero (Topica 11, passim) and Quintilian (V, 10, 20-99). - First of all, the speaker explores places "in the subject itself (in eo ipso), which is at stake ”(Cicero, Topica 8). First and foremost, the persons involved in a case are a source of evidence: descent, age, upbringing and training, social position, "character", occupation, biography, etc. provide argumenta a persona (Quintilian V, 10, 23 ff.); the ethos works in the same way (10 (1) above). But like so many facts, these loci are also ambivalent: the opponent counters, if possible, with attacks on the person, argumenta ad personam. - Not only properties, but also activities are associated with people; one thus gains evidence “from the reasons of past or future actions” as well as from place and time (Quintilian V, 10, 32 ff., 36 ff., 42 ff.). - The controversy draws attention to "facts that have a certain relationship to the subject of the investigation" (Cicero, Topica 10 f.). So the point of view "similarity" ensures (argumentum a simile) to build a bridge to an example (exemplum) or for a conclusion by analogy (above 11 (2); Cicero, Topica 41 f., 50 f .; Quintilian V, 10, 73 ff.). "Opposed to the previous one in the highest degree" is the point of view "difference" (differentia); whoever finds something similar will discover something dissimilar with the same effort of thought (Cicero, Topica 46; Quintilian V, 11, 13). From here it is only one step to reverse the conclusion (argumentum e contrario) (Cicero, Topica 47). The work with comparisons can be even more productive: "Additional or comparative evidence (adposita vel comparativa) are called those who want smaller things out of larger things (minora ex maioribus), Bigger from smaller (maiora ex minoribus), Like from like (paria ex paribus) prove ”(Quintilian V, 10, 87 ff .; Cicero, Topica 68). - Once the subject of dispute has been exhausted, the speaker is Loci "from the outside (extrinsecus) "(Cicero, Topika 8). He is advised to adhere to everything that has “authority”, i.e. to the argumentum ex auctoritate leads (Cicero, Topica 24 and 72 f .; Quintilian I, 6, 42). - Every list of topoi / loci has its paradox, lamented by Quintilian: “on the one hand to teach too much and on the other hand not the whole” (V, 10, 100). The speaker's creativity for independent searching and finding of evidence is therefore always required. The same applies to judgment, which, depending on the type of investigation (individual case or general dispute) or the speech situation, avoids mistakes when selecting the evidence (Cicero, Topica 79 ff.).
(3) If evidence has been accumulated with the help of the topic, the problem remains of its optimal use (Quintilian V, 12). The speaker must develop a flair to recognize the quality (strength or weakness) of an argument and the courage to forego inferior or even double-edged arguments (Cicero, De oratore 308 f.). The following rule applies to the effective sequence within a line of argument: At the beginning belongs the most effective, or at least one of the strongest means of persuasion; what is "of moderate importance will be thrown onto the huddle in the middle"; the conclusion brings, rounding off and / or summarizing, again strong arguments (Cicero, De oratore 314).
13. The third component of the doctrine of speech according to Inventio and Dispositio is Elocutio (above 2.), the doctrine of linguistic expression. It goes without saying that it is part of the foundations of rhetoric alongside finding, arranging and proving statements: not because it is about the use of language, but because the appearance of a thing also depends on how it is talked about (Aristotle, Rhetoric III, 1, 2). The style of speaking helps to make the matter appear "in the right light"; where the plurality of points of view is the philosophical (epistemological) premise of rhetoric. The classic textbooks devote a great deal of space to questions of style. In the third book of his “Rhetoric”, Aristotle addresses almost all aspects of style that his Roman successors will systematically develop. In the third book, “De oratore”, Cicero discusses the correct use of the word and adds “Orator”, a monograph on the style of the speaker and the speech. Quintilian's presentation of the stylistic devices (Books VIII to XI, 2 and XII, 10) is more extensive than that of the evidence. - The aim is the “perfection of linguistic expression”: it is “clear” and “neither low nor excessive, but appropriate” (Aristotle, Rhetorik III, 2, 1). A formulation is appropriate if it "expresses affect and character and is in the right relation to the underlying facts"; “Character” means the “right relation” to known living conditions of the speaker (Aristotle, Rhetoric III, 7, 1 and 7). The requirement for appropriateness (Greek prepon, Latin aptum, decorum, proprietas) runs as a red thread through the rhetorical style. Cicero rejects oratory tearing apart the matter (res) and word meaning (verb) (De oratore III, 19). In the “Orator” he determines the full range of the concept of style: “The style of speaking is evident in the presentation and in the use of language (in agendo et in eloquendo) "; the lecture is "physical eloquence" in so far as it is based on voice and movement as well as on the appearance of the speaker (Orator 54 f., 60 f.). Quintilian considers the elocutio to be the most difficult part in the theory and practice of the speech (VIII, Preface , 13).
14. From the stock of stylistic devices - these are tropes (forms of "word substitution", e.g. metaphors), rhetorical figures ("sentence conversion"), rhythm and other word decorations (ornatus) - a speaker can use himself according to his wishes and abilities. Which usage constitutes the "perfect" style of speech, Cicero explains in the "Orator" on the basis of three types of speech (genera dicendi) or three types of speakers (Orator 20 f., 76 ff.). Type 1 is the "high-pitched" speaker (grandiloqui), who wants to work with the “massive structure of his sentences and the dignity of his words”. Type 2 embody "those speakers who are simple and precise in expression", who provide all-round information and make everything plausible. Type 3 is “a kind of balanced kind inserted in the middle between them”. - Type 2, called the “Attic” speaker, relies on a rhetorical minimum; he cultivates the art of artlessness (Orator 76). His speech is free of rhythm, unadorned, at most it contains the usual metaphors, the expression is clear and precise and appropriateness takes precedence over everything else; the purist allows himself only “a grain of salt” (Orator 77-79, 81, 85, 87). Even the speaker of the “middle style” (variant 3) lets the speech “slide along calmly and calmly”, but does not disdain decorative tropes and figures, tends to be scholarly broad; in the forum he is "despised by the speakers of the simple style, rejected by those of the high" (Orator 92-96). Finally, the orator of high style, verbose, eloquent, and unrestrained in the use of jewelry: Cicero admits that he appeared so even in major state affairs, but could not respect anyone who could only master grandeur (Orator 97-102). Sometimes it is necessary to “mix and change styles” (Orator 103). As Demosthenes did, whom Cicero proves to be a perfect speaker, describing himself in his self-perception: a speaker “who speaks in the forum and in civil trials in such a way that he proves, entertains, influences (ut probes, ut delectet, ut flecat). To prove is a matter of necessity ... but to influence means victory ”(Orator 23:69).
1. Since the 1950s, rhetoric has been gaining ground in the humanities. A strong impetus for this came from the Brussels-based “Nouvelle Rhétorique” (Perelman / Olbrechts-Tyteca, 1958; 3rd edition 1976). For philosophy, whose “linguistic essence” is often denied and against all reality, Th. W. Adorno states: “In philosophy, rhetoric represents what cannot be thought other than in language” (Adorno 1966, p. 63 f .); meanwhile this is no longer an outsider position there (see Rhetorik Jahrbuch 1999). Perelman also emphasizes the close connection between rhetoric and jurisprudence (Perelman 1979 and 1980).
2. “Rhetorical legal theory” stands for the attempt, inspired by Th. Viehweg and driven since the 1960s, to reduce legal practice, legal doctrine (“dogmatics”), legal philosophy and, first and foremost, legal methodology to their rhetorical basis (Schlieffen 2007, 197 f. ); by which less the historical reconstruction is meant than a restitution in the ancestral reality.
(1) The treatise "Topik und Jurisprudenz" (1953; 1974), which acts as a program script, names three pillars on which Viehweg bases its system-critical concept. It is based on the contrast between “problem thinking” and “system thinking” (Viehweg 1974, pp. 31-34). The key category for a rhetorical understanding of law is “the problem”, to be defined as “a question that apparently allows more than one answer”. This requires so much relevant prior understanding of a situation that something about it seems questionable and requires an answer. For the search for the solution, “the problem itself must be assumed as given and always leading” (1974, p. 32). If one now wanted to transfer the solution to a system with fixed terms and derivation contexts, it would have to be decided beforehand whether the problem would be understood as such and accepted as a solution, or whether it would be rejected as a pseudo-problem (1974, p. 33) - while that is the law immanent non-liquet prohibition (Ballweg 1970, p. 109) excludes such a refusal to work. Conditions under which an answer is guaranteed come up with Viehweg's second key term; Instead of a logical and scientifically structured system, they are fulfilled by a reality-oriented jurisprudence (Viehweg 1974, p. 87 ff.). Thirdly, their main work tool is Topik (1974, pp. 88 ff.). It provides “points of view” (Aristotle, above IV.12. (1)) from which a problem can be solved discursively, while weighing up opposing arguments. Viehweg attaches importance to the fact that topics as a field of rhetorical evidence should not be "unsystematic" in the sense of arbitrary or chaotic. In legal work, “systematic unity in the legal field is by and large anticipated” (1974, p. 87), i. H. both presupposed and strived for (1974, p. 34). A kind of latent system, then; Or to put it more comprehensibly: It is the framework from which the professionally acting lawyer, guided by the judiciary, does not want to fall out.
(2) O. Ballweg examined the characteristics of jurisprudence (and prudence in general) in the context of modern action theories. What is essential for Prudentien is that “by means of unquestioned structures of opinion (dogmatics) in different situations, under changing perspectives and changing social conditions, in flexible value areas Decidability of problems ”(Ballweg 1970, p. 72). In order to be stable and flexible, the mutual relationships between the “subsystems” of social reality, legal reality, legal practice and legal doctrine require an “openness”, as guaranteed by the topic, without giving freedom to decisionism (Ballweg 1970, p. 100-132). With this it is implicitly said that with a closed axiomatized deductive system (p. 117) such a goal can only be achieved through inconsistency. In his study on Topik (1971, pp. 64-70), G. Struck presented examples and even strategies of such inconsistencies.
(3) On the topic, Struck has created a “study” that does not fall back on classical rhetoric (from there, however, brings with it a preliminary understanding), but on material from legal practice and methodology mainly from the 1960s. From this material, especially from the language used in it, the author develops the definition and structural features of the topoi. According to this, a topos is a “standard argument” (Struck 1971, pp. 18 f., 20) and is characterized by the following properties: It is convincing (probably because it radiates a glimmer of reasonableness and justice); The more abstract it is formulated, the more so (p. 38 f.). He has a history of effectiveness and continues to have "assertiveness" (p. 39 ff.). He has so much vagueness that it is still possible to justify exceptions and deviations from his maxim (p. 46 f.). It is characterized by argumentative usefulness, thanks to which it "allows penetration through the veil of tendentious concept formations" (p. 58). There is no hierarchy in the relationship of the topoi to one another, but there are “mutual interpenetration” (p. 55). As a result of the critical-analytical part of his study, Struck offers a guideline (not a scheme) for problem definition and problem solving in case processing (pp. 76-103).
(4) Even early on, the interest of rhetorical legal theory in the usability and modes of use of language went further and deeper than was sufficient for classical elocutio (above IV. 13.). Modern semiotics is used, which provides a model for analyzing language material (syntactics and semantics), speaking habits and speaking situations (pragmatics). W. Schreckenberger, “Juristische Semiotik” (1978), has discovered examples of topological application of the constitution through semiotic analyzes of Articles 1 and 2 of the Basic Law and the arguments of the Federal Constitutional Court. Syntactic deficiencies and semantic contradictions in extremely abstractly formulated legal bases (Schreckenberger 1978, e.g. pp. 97 f., 105, 131 f.) Lead to the (hermeneutically unattainable) case solution on the pragmatic level with the help of a wide-ranging "topoir repertoire" (P. 317 ff., 365 ff.) Takes place; a way of working that is not mentioned in the judicial justifications, but is practiced. - Semiotic pragmatics, which ties in with the respective situation of language use and analyzes the reality of decisions, is presented by H. Rodingen (1977). - Th.-M. As a scientifically reflective semiotics and professional judge, Seibert has collected topoi for a virtual textbook “Semiotics of Law” in “Aktenanalyse”, 1981, and “zeichen, Prozess ”, 1996, Prolegomena or, to stay with the profession, (1996, p 7).
(5) The protagonists of the rhetorical legal theory understand their scientific work primarily as basic legal research, in addition, each differently pronounced as methodological offers in legal doctrine and practice. The relationship to classical rhetoric is similarly different; some consider it an indispensable basis, while others are less geared towards a renaissance than more towards modernization. In the research of K. Sobota, now Countess von Schlieffen, classical categories provide the benchmark for investigations into legal methodology and legal practice. The starting point is the grid provided by the Aristotelian triad “Ethos, Logos, Pathos” (Sobota, Rhetorik Jahrbuch 1996, p. 120 ff.). A key concept in the jurists' self-image and professional style, “objectivity”, breaks down into a palette of logos and pathos moments in rhetorical analysis (Sobota 1990). The syllogism comes from the area of the logos, and in technical use it dissolves into the variants of the enthymem (Sobota 1990, pp. 47-80 and 91-100; Schlieffen, Rechtsstheorie 2011, pp. 601 ff.). Attempts to derive, as it were, a reassurance in the “essence” of law from epistemological ontologies that have long been untenable from an epistemological point of view (exemplary: theories of natural law) are considered pathos (Sobota 1990, pp. 123-143). Court decisions as treasure troves for tropes, characters and other stylistic devices of affective communication attest to the rhetorical richness of current legal practice (Schlieffen 2006, pp. 49-62, and 2005, pp. 405-448; Sobota, Rhetorik Jahrbuch 1996, pp. 122 ff.). The reciprocal relationship between logos and pathos, which has been confirmed again and again, is not surprising: the more logos, namely plausible arguments on the matter, the less pathos; and vice versa.
3. In 1982 an anthology “Rhetorical Legal Theory” (Ballweg / Seibert 1982) was published, which covers a wide range of topics and introduces 18 members or friends of the “Mainz School” (see Schlieffen 2007, 198, 201). In the methodological discourse of jurisprudence, “rhetoric” had meanwhile risen to become a stimulus and the rhetorical legal theory was established in the position of the enemy. The polemic against Viehweg's school and rhetoric in general (presented in Weirauch 2005, p. 21 ff.) Can be reminiscent of Plato's dealings with the Sophists, and also of Cicero's remark with regard to “Gorgias”, in which he admires Plato “most in that, while mocking the speakers, he himself seemed to be the most eminent speaker ”(De Oratore I, 47).Because power relations are part of the scientific community, at least for two generations of the “Mainz School”, their own science turned out to be a “career poison” (Schlieffen 2006, p. 43). - The situation has changed to such an extent that one can speak of a certain coexistence between the parties, which Ballweg contrasted in his book title "Jurisprudence and Jurisprudence", which he can read as an alternative. However, the “mainstream” is still the one that distinguishes itself from rhetoric, if not distant. (On “main and counter-currents” in the legal methodology of Krawietz 2011.) It is true that the truism of “justification through argumentation” can be found in probably every legal methodology today; but a thoroughly Platonic belief that it is the logical and hermeneutical elements that guarantee the legal working methods a guarantee of correct content asserts itself to a large extent against the “purely formal”, basically “arbitrary” topic. - Viehweg and Ballweg have further developed implications and aspects of rhetorical legal theory in many contributions (Viehweg, Kleine Schriften 1995; Ballweg 2009).
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