The Evolution of Judicial Justification: Perelman’s Concept of the Rational and the Reasonable

Rieke, Richard D.

doi:10.1007/978-94-009-4674-3_12

Cited by 10 publications

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“…In a series of previous essays, I have suggested that courts be viewed from the perspective of an evolving group interaction (Werling and Rieke, 1985;Newell and Rieke, 1986;Rieke, 1986Rieke, , 1987. Briefly, I have claimed that courts are open systems, receiving energy (information, rhetoric, etc.)…”

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“…If the case presents a novel issue such as the application of copyright laws to home videotape recorders; if the case will necessarily result in an innovative position such as returning responsibility for regulation of abortions to the states; if the case is considered within a context of urgency such as affirmative action policy, the court will probably experience quite a different type of dialogue than occurs with cases lacking these features. I have described this difference between the rational and the reasonable in Perelman's terms elsewhere (Rieke, 1986).…”

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The judicial dialogue

Rieke

1991

Argumentation

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A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/ rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage in a continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically.

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confidence: 99%