Int J Semiot Law

https://doi.org/10.1007/s11196-021-09879-x

Rhetorical Construction of Legal Arguments

João Maurício Adeodato1 

Accepted: 14 December 2021

© The Author(s), under exclusive licence to Springer Nature B.V. 2021

Abstract
This study examines the concept of argumentation empirically, to correct the nor-
mative conception of argumentation adopted by most scholars since Aristotle. They
are not interested in what argumentation is, but in what it ought to be. The pre-Aris-
totelian approach is preferable, because it recognizes that argumentation, although
it includes persuasion, also embraces other eristic techniques in which the speaker
does not necessarily seek to persuade, but simply to prevail. This broader descrip-
tive and pragmatic analysis explains the different ways in which discourse actually
occurs and particular arguments succeed, leaving in a secondary place the opinion
of each author on how they should be.

Keywords  Realistic legal rhetoric · Argumentation · Eristics · Persuasion ·

Aristotle’s rhetoric

1 Summary

1. Introduction: Conceptual and methodological bases for a realistic view of legal

argumentation. 2. The types of syllogisms and a critical view of the traditional clas-
sification. 3. The age-old confrontation between the Sophistic and Aristotelian theo-
ries of argumentation. 4. Conclusion: the insertion of eristics in argumentation.

I thank my friend and colleague Mortimer Sellers, University of Baltimore, for the careful review of
the English language.

* João Maurício Adeodato

jmadeodato@gmail.com
1
Faculdade de Direito de Vitória (ES), Universidade Nove de Julho (SP), São Paulo, Brazil

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 J. M. Adeodato

2 Introduction: Conceptual and Methodological Bases for a Realistic

View of Legal Argumentation

The general objective of this article is to understand what is empirically meant

by argumentation, an activity that is widely discussed today and a word used in
several senses. The article concerns pre-Aristotelian rhetoric, in which persua-
sion was not central to what is considered to be argumentation. Most authors who
are interested in the theory of argumentation remain attached to the canons cre-
ated from Aristotle’s Rhetoric. This means taking a methodologically normative
perspective, as when in considering the theory of law, the authors discuss how
they think argumentation should take place and not how it actually occurs. This
happens with contemporary authors inspired by classical rhetoric [1, 2], language
theory and logic [3, 4] and semiotics, which intends to go beyond language and
find non-linguistic systems of signs [5, 6], besides other authors discussed below.
This raises the question whether a theory of argumentation that wants to under-
stand law in the highly complex societies of today should remain solely within this
dominant perspective, which sees argumentation and rhetoric itself exclusively
as persuasion, the “art” of persuasion. In brief, Aristotle says that persuasion can
happen through ethos (eθος), pathos (πάθος) and logos (λόγος): “the first species
depends on the personal character of the speaker; the second, on provoking a certain
mood in the auditorium; the third, on the proof, or apparent proof, which is provided
by the words of the speech itself” [7 (I, 2, 1355b), p. 595].
This already means excluding from rhetoric and argumentation any discourse
that does not proceed through these three channels, a very significant reduction.
Many contemporary authors remain faithful to this Aristotelian tripartition [8,
p. 42–64], but others, although they identify argumentation and persuasion, fur-
ther reduce its scope, considering that persuasion occurs only through the logos,
assuming as necessary the equality between parties, coherence or “rationality”.
They are even more idealistic (for instance [9, p. 120 f.; 2; 10].
This article appeals to the tradition prior to Aristotle and defends the thesis
that argumentation goes far beyond persuasion, since human discourse is also
constituted by other linguistic techniques and actions in which the speaker does
not aim to convince the participants. Methodologically, it adopts a descriptive,
that is, a non-normative posture.
In the context of contemporary debate, the idea here is akin to pragmatism, which
also has a rhetorical point of view, i. e., that the apprehension of the significance of
language does not depend on pre-existing meanings carried by the text, but on the
fact that the interlocutors are inserted in the same interpretive system, in a commu-
nity of meanings. This includes the practical circumstances, beliefs, purposes and
relevant assumptions surrounding the production and presentation of the text [11].
Persuasion is a very important and efficient argumentative procedure, no
doubt, but argumentation cannot be reduced to persuasion, as this would require
difficult and rare presuppositions to be found. A realistic theory of argumentation
seeks to explain the different ways in which discourses actually occur, leaving
each author’s opinion of how they should be in the background [12].

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Rhetorical Construction of Legal Arguments

To clarify this objective and this thesis, the discussion must begin by studying
the classic bases of argumentation, around the concept of syllogism, and propose
a classification. As the enthymeme, for Aristotle and his tradition, is the rhetori-
cal syllogism par excellence, the form of expression of persuasion, this too must
be explained, as must other types of syllogism, in order to introduce the concept of
eristic syllogism and the fundamental thesis of the text, which is that the normative
perspectives of Aristotle, and of almost all authors who dealt with legal argument,
unduly eliminated the eristic pathways of rhetoric and thus of all argumentation.
In other words, Aristotle’s authority helped idealistic proposals to be seen as
descriptions of reality. Modern rational argumentation theorists, for example, do not
make it clear that they are expressing their opinion on what argumentation should
be, suggesting what they consider to be the ideal model, but rather make it seem that
they describe how the real world, as long as it is efficient and well organized, actu-
ally works. This type of philosophy is of little value to the professional or student
of law, since it does not correspond to the empirical data with which he works or
intends to work.
The purpose of this article is, therefore, to call attention to the importance of
reinserting in the study of argumentation elements that have always been present,
such as simulation, irony, flattery, arrogance, false modesty, and lying. There is such
an extensive catalog that some of these strategies do not even have a name and there
may be some confusion between them. At the same time, careful examination sug-
gests that eristic approaches are not necessarily harmful or “bad” because they deny
the possibility of a truth: the ethical quality of an argument will depend on the con-
text rather than its truth or falsity.
In the field of law, argumentation is one of the phases of dogmatically organized
legal work; it is part of a sequence of procedures that produces a decision on a prob-
lem considered to be legally relevant [13]. The number and details of these phases
vary according to the author and the important thing is that they be understood as a
pedagogical abstraction, ideal concepts, as well as their chronological order, from
conflict to decision, passing through the “undeniability of the starting points”, inter-
pretation, argumentation, prohibition of non liquet etc. In the empirical reality, these
phases interpenetrate, there are gray zones, coming and going: in effect, they mix.
And in practice, an experienced legal professional surely imagines them simultane-
ously, when outlining her strategy for approaching a case.
However, there are differences in attitudes that can be better understood when
argumentation and interpretation are distinguished as two separate phases. Interpre-
tation can be seen as a prerequisite for argumentation, because to argue is to try to
make an interpretation prevail. Any speaker, in any argument, starts from speech
patterns that present themselves as valid in the environment of the case, chooses
those that best adapt to defend her interests and interprets them. In modern dogmatic
law, to interpret is to give meaning to a valid source (contract, will, decree, jurispru-
dence), with reference to a unique concrete situation.
Each participant tries to make their own interpretation as close as possible to
the one that will materialize in the decision of the case: the path between inter-
pretation and decision is argumentation, the procedure or set of procedures by
which differing interpretations try to prevail. Argumentation thus presupposes a

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common space, an arena of generalized topical rules, and has a civilizing social
function, even when it does not reach persuasion, as it replaces violence [14, p.
301 f.].
Initial studies on the human faculty of argumentation are at the dawn of Greek
philosophy, both in the ontological rhetoric of Plato and Aristotle and in the sophis-
tic rhetoric of Gorgias and Protagoras. Classifying arguments based on the differ-
ences between the linguistic utterances that express them, allows us to understand
their development in the history of words and their meaning today.
The first references called these statements “syllogisms” (συλλογισμός), word
formed by “with” (σύν) and “calculus” (λογισμός). It also acquired other meanings,
such as “evaluation”, “weighting”, “rationality”, hence the word syllogism is com-
monly identified with “argument”.
Scholars today discuss graphic versions and possible corrections of texts from
modern authors such as Hobbes, Kant and Nietzsche, whose works can be con-
sulted in first editions and even in the manuscripts themselves, in the museums and
libraries where they are found. Imagine works written in Antiquity, of which not the
slightest physical trace remains, but copies of copies of copies of copies of copies,
who knows where this regress might take us. Scientific reliability seems unattain-
able for works that precede the concept of science, filtered through a series of vastly
different cultural environments, some of which cared nothing for ancient learning,
through copyists with widely varied viewpoints and abilities.
Another difficulty that adds to these factors is that the classics reach modern
times not only through transcriptions, but also through doxography, that is, more or
less reliable paraphrases by third parties engaged in commenting and criticizing the
original texts. One more problem is the fact that Greek is a dead language, which
makes it harder to contextualize.
Finally, many classic works remain fragmented today, others only in sparse
sentences, preventing an overview of the researched author or the evolution of his
thought. To give an example, doxography shows that the skeptical philosopher
Clitomachus wrote 400 books; even considering that the Greek sense of “books”
would indicate chapters, it is a vast production: absolutely nothing is left of it. And
it is enough to consult the lists of the writings of the ancient philosophers, compiled
by Diogenes Laertius, to see how much was lost.
The differences between translations reveal the difficulty in well understanding
such old works well. A good example is brought up by a phrase right at the begin-
ning of Aristotle’s Posterior Analytics, because the terms that designate the genus
“argument” and the two species “syllogism” and “induction” appear in it: ὁμοἰως
δὲ καὶ περὶ τοὺς λόγους οἵ τε διὰ συλλογισμῶν καὶ οἱ δι᾽ ἐπαγωγῆς (Αριστοτέλης,
Αναλυτικόν Υστερόν [I, 71a, 5–6].
In Portuguese, the following was chosen: “O mesmo ocorre com os argumen-
tos lógicos, quer silogísticos, quer indutivos.” [15 (I, 71a, 5–6), p. 251]. Although
λόγους was translated as “logical arguments”, adding the adjective, the note 296 just
below explains that Aristotle means λόγους for “dialectical arguments”, a different
adjective. The Encyclopaedia Britannica translates λόγους by “reasoning” and also
adds an adjective, which is “dialectical”: “…and so are the two forms of dialectical
reasoning, syllogistic and inductive;” [16 (I, 71a, 5–6), p. 97].

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Rhetorical Construction of Legal Arguments

In the Italian translation, “argumentation” is preferred and there are no adjec-

tives: “Similmente accade anche circa le argomentazioni, sia quelle che si svilup-
pano attraverso sillogismi sia quelle che procedono per induzione;” [17 (I, 71a, 5–6),
p. 843]. The German translation makes a similar choice, but prefers “deduction” to
“syllogism”: “… und ähnlich auch, was die Argumente angeht, sowohl diejenigen,
die durch Deduktion, als auch diejenigen, die durch Induktion entstehen.” [18 (I,
71a, 5–6), p. 18].
To define the syllogism, the “concept” may be taken as the unity of the phrase,
the initial element, despite its variations in meaning in the history of philosophy.
Although sometimes understood as a Platonic idea, sometimes as a “universal”,
sometimes as a symbolic expression of ideas, the concept is always expressed by a
word and joins with other concepts and words to form statements.
So the statement is expressed by the phrase or sentence and consists of a chain
of concepts: the concepts of “woman” and “mortal” are united in the statement “the
woman is mortal”, for example. A chain of statements, in turn, forms a syllogism. A
chain of syllogisms consists of an argumentation, although there may be arguments
contained in a single syllogism.
This definition is broader than the dominant one, inspired by Aristotle, which
necessarily understands syllogism as deductive reasoning; the inconsistency of plac-
ing all syllogism as a deduction is that this excludes the induction of the syllogisms’
classification, thus negating the possibility of paradigmatic enthymemes, which are
generated by inductive observation.
Studying these forms of human language as expressions of thought, the ancient
Greeks took care to classify the syllogisms and also the statements that compose
them. Although Aristotle is the fundamental author, because of what has survived
from his work, it is reasonable to conclude, and he himself mentions several precur-
sors, that a good part of the ideas debated is not his exclusive creation.
Before suggesting a classification of syllogisms, three caveats must be made.
First, there are numerous different ways and criteria to classify syllogisms, as can
be seen in the many “figures” that Aristotle attributes to them in the Prior Analytics.
Second, such old terms, loaded with high porosity, do not allow exact definition
and classification. The term (porosity) is inspired by Friedrich Waismann and his
concept of open texture of language [19, 20], but also by Nicolai Hartmann and
his Platonic concept of the irrationality of individuality [21, p. 302 f.], stating that
every real is individual, and every individual is impossible to be apprehended in its
entirety by the human reason; therefore, real events are “irrational”. Here, porosity
is a term used, more specifically, to designate the variations (ambiguity and vague-
ness) of meaning (sense and range) of words over time and space; it is, so to speak,
the history of the word.
Finally, as pointed out above, the large number of different theories of argumenta-
tion and endless debates is due to the fact that they are all normative, that is, each
author has his solution to promote. In this work, which adopts a descriptive ana-
lytical approach, a path is suggested towards understanding how the idea of argu-
mentation was formed in the history of Western thought. And so this text must be
read as a methodologically different proposal from those dominant in the study of
argumentation.

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 J. M. Adeodato

3 The Types of Syllogisms and a Critical View of the Traditional

Classification

The apodictic syllogism (ἀποδεικτικός) is that which is logically evident, which

supposedly cannot be contested by human “reason” (understood as logos). It com-
pels, forces its acceptance. It is also sometimes called apophantic (ἀποφαντικός),
because both concepts have the same component of being necessary syllogisms,
whether true, such as “the woman is an animal”, or false, such as “the human
being is invertebrate”. This is not strictly correct, however.
Apophantic syllogisms must be distinguished from contingents, of which
it makes no sense to say whether they are true or false, such as “it is better to
be married than single”. The logically necessary character of apophantic syllo-
gisms leads directly to the idea of truth, which provokes the imprecise metonymy
of identifying apodictic and apophantic syllogisms. To be faithful to Aristotle,
apophantic syllogisms, which allow separating the true from the false, form the
genus, of which the apodictic syllogisms, that are evident, alongside the demon-
strative ones, verifiable by calculation, constitute the two species.
Apodictic syllogisms are evident, in the sense that they impose themselves
immediately, without the need to proceed with any form of proof or justification;
they are the result of an intellectual intuition common to all human beings, such
as the simplest mathematical and logical statements (“2 + 2 = 4” or “if a > b and
b > c, then a > c”).
A syllogism is demonstrative if it starts from true premises, based on the first
principles of the knowledge sought, and is capable of arriving at truth, produc-
ing science. The premises of the demonstrative syllogism must be: (1) true, (2)
the causes of the conclusion, (3) better known than it and (4) prior to it. If the
demonstration is an inference of necessary premises, that what is accidental or
contingent, cannot be known demonstratively. The premises of demonstrative syl-
logisms are then apodictic utterances, because if they needed to be demonstrated
there would be a return to infinity and the demonstration would never come to an
end [16 (I, 71b, 15–30), p. 98].
Although starting from apodictic syllogisms, demonstrative syllogisms require
time and calculation, hence they need common knowledges between speaker and
listener, because their conclusions are intended to be true, but they are not evi-
dent. Knowing whether the square of the hypotenuse is equal to the sum of the
square of the legs (catheti) in a right triangle or knowing which day of the week
will fall on March 12, 2056 are problems that have no obvious answers and there-
fore need to be demonstrated.
Aristotle goes so far as to say that persuasion – which he considers to be the
object of rhetoric, “is clearly a form of demonstration, as we are more completely
persuaded when we consider something as demonstrated” and mentions “demon-
strative conditions”, different from “refutative”, which increases the difficulty of
defining his classification criteria [7 (I, 1, 1355a and II, 23, 1400b), p. 594 and
p. 649]. He seems to mean that some enthymemes are more effective because
they are based on demonstrations, although they shall not be identified with them,

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Rhetorical Construction of Legal Arguments

because not all the premises relied upon are apodictic. In a rigorous classification,
it does not make sense to say that a syllogism is both enthymematic and demon-
strative, since the enthymeme is based on opinion and demonstration on evidence.
The so-called dialectical syllogism is even more difficult to define, due to dif-
ferences in the understanding of the various thinkers who dedicated themselves to
the meaning of the expression “dialectic” (διαλεκτική). Even in the same author, as
again in Aristotle, the word is used with complex meanings, difficult to reconcile,
and the translations make it even harder, as mentioned above.
To begin with, as induction is another kind of dialectical way of thinking, in addi-
tion to (deductive) syllogism, it should not be accurate to speak of dialectical syl-
logism. Aristotle states that “rhetoric is the counterpart of dialectic” and a few lines
later he asserts that “rhetoric can be seen as a branch of dialectic” [7 (I, 1, 1354a),
p. 593]. Here, there is another difficulty concerning the relation gender/species, con-
tains/is contained in the philosopher’s text.
When applied to philosophy and science, which seek the truth, dialectical rea-
soning may be used in an inductive way, from the particular to the general, or in
a deductive way, in the opposite direction; and only the latter conforms to the dia-
lectical syllogism. When applied to rhetorical argumentation, which seeks to make
an opinion prevail, dialectical reasoning may be expressed, respectively, through
the example, which is a type of induction, and the enthymeme, which is a type of
deduction. In other words, strictly speaking, Aristotle’s dialectic is a way of think-
ing, a method, and not another species in the classification of syllogisms. Dialectical
reasoning can be inductive or deductive, both in science and in rhetoric: induction
in science is equivalent to example in rhetoric; and deduction is equivalent to the
enthymeme.
While the demonstrative syllogism starts from apodictic statements, the enthy-
meme is not based on truth, but on opinions generally accepted by all, by the major-
ity or by the wisest [22 (I, 1, 100b, 25), p. 143]. But they are both syllogisms, since
they fit the definition: “a discourse in which, certain things being stated, something
other than what is stated follows of necessity from their being so” [23 (I, 1, 24b, 20),
p. 39].1 In another work, Aristotle applies practically the same definition to the con-
cept of “reasoning”, also in the same edition of the Great Books’ translation: “For
reasoning rests on certain statements such that they involve necessarily the assertion
of something other than what has been stated, through what has been stated…” [24
(I, 165a, 1–5), p. 227].

1
  Where Aristotle himself refers his Topics [100a29, 104a8], 1990c. It should be noticed that he empha-
sizes the dialectical syllogism in the Topics and the enthymeme in the Rhetoric. This could help to
explain the apparent contradiction.

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 J. M. Adeodato

Inducve (in Science or Philosophy) / Example (in Rhetoric)

Dialeccal

Reasoning

Deducve or Syllogisc (in Science or Philosophy) / Enthymeme

(in Rhetoric)

Note also that it is not the formal rigor of the syllogism that guarantees the truth
of the statement. Only if the premises are true and the deductive procedure is rig-
orous, will the conclusive statement also be true. If the premises are opinionated
and the character of the truth cannot be attributed to them, even with an absolutely
coherent deduction, the concluding statement will also constitute an opinion. There
is an incompatibility between truth and opinion, a mutual exclusion. The dominant
opinion (ενδοξόν) is one of the most common foundations of the enthymeme, so
the conclusion of this type of premise will necessarily be opinionative. Recalling
that éndoxon differs from doxa (δόξα) because this is individual, while the former is
accepted by many and prevails in the social environment.
On the other hand, the formal linking of the parts of the syllogism may be neces-
sary, logically correct, without its premises or conclusion being true. This formally
perfect syllogism is called “protasis” and is important because it shows the differ-
ence between truth and logical coherence. For example: Every man is immortal;
Socrates is a man; therefore, Socrates is immortal.
From a rhetorical perspective, an adequate criterion for classifying the syllogisms
in Aristotle’s work may be the possibility or not of intending to arrive at the truth:

Apodicc

Truth

(Apophanc) Demonstrave

Enthymemac

No Truth

Erisc

Aristotle admits that starting from true premises would be ideal, but this is not
always possible. There are important issues, such as politics and ethics in general,

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Rhetorical Construction of Legal Arguments

that do not allow the classification of true or false. For example: it makes no sense
to ask whether it is truer to have the profession of blacksmith or potter, teacher or
trader. For that, there are only opinions, such as saying that one should choose the
profession that suits him best, the profession that is best paid or the profession with
the most social prestige. To this type of situation, there are enthymematic and eristic
syllogisms and the need to study them.
Faced with disagreements about the content of the enthymeme, many authors
came to prefer a formal concept, which ended up becoming very widespread: the
enthymeme is a syllogism that silences one or even two of its three sentences (major
premise, minor premise and conclusion). Quintilian calls it “imperfect syllogism”
[25, p. 653].2
For Aristotle, this formal definition is insufficient, as silence only works if there
is an agreement on content premises, which indicate certain decisions to the detri-
ment of others. The enthymeme, which the philosopher calls rhetorical syllogism,
needs to say which behaviors should be preferred to the detriment of others. It has
to transmit ethical content. Aristotle then suggests that enthymematic syllogisms are
driven by probabilities, whose premises are expressions of the éndoxon. He argues,
therefore, that the content of the enthymemes, the probability, is directed in three
ways: the diffuse commonplaces in the social milieu (τόποι), the past examples
(παράδειγμα) and the indications (‘ενδειξη).
The shrewdness of these more than 2000-year-old observations can be confirmed
by trivial experience: if subject A committed a crime and recidivated and the same
happened with subjects B and C, the inference that every criminal (or “almost” all)
relapses in criminality is immediate. The paradigmatic enthymeme is based on the
empirical observation that people generally believe that the examples of the past are
repeated. And soon their conclusion that every convicted criminal will become a
repeat offender becomes a commonplace in that milieu, constitutes a topical enthy-
meme, which gives rise to new enthymemes, such as that ex-convicts should be sus-
pected first or that recidivism should be more drastically punished. But this cannot
be called a “truth”.
If someone is seen holding a pistol next to a bloody corpse, that person is prob-
ably the killer, even if it is a case of suicide. The enthymeme by indication is sup-
ported by the mental habit of associating phenomena that have been observed before
with a permanent and inexorable law of cause and effect. Nobody stops and thinks
that not all smoke really means there is a fire. In this example, the major premise
“every armed person found next to a corpse is the perpetrator of the murder” is
assumed without further consideration.
The sphere of silence, emphasized by the formal concept of enthymeme men-
tioned above, is effective when assumptions are not called into question. It is pre-
cisely in these presuppositions about which everyone remains silent that the strength
of the argument resides, because it will be up to each recipient of the message to
insert the missing sentence or meaning in the speaker’s syllogism. This sphere of

2
  “…habet enim rationem et propositionem, non habet conclusionem: ita est ille inperfectus syllogis-
mus.”.

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 J. M. Adeodato

silence may be totally hidden or be suggested by imprecise expressions, both strate-

gies designed to make the listener fill the gaps. There may be any sentence (major
premise, minor premise, conclusion), which does not express anything concretely,
such as “the basic principles of justice must be obeyed”. Conversely, sentences with
less ambiguity and vagueness tend to cause more disagreement.
Hence, the spontaneous tendency and need, in human discourse, to find vague
and ambiguous terms to reach agreements, however inconsistent and momentary
they may be. In written law, it is enough to observe constitutions, international trea-
ties, laws, contracts, etc., whose texts clearly show this strategy, even if it has been
used unconsciously. Terms such as “dignity”, “privacy”, “moderation” abound, as
each person or group thinks that the meaning they give to these abstract expressions,
and even to words in general, is the correct meaning or the only possible one.
For that, silence can be even more efficient, for it starts from the assumption that
what would be expressed is evident, that it is or not opportune or that, even with-
out being obvious, it is already known and agreed by the recipient of the message.
Again: in the face of ambiguous and vague terms, the strategy is to make the listener
fill in the meanings of the words as he sees fit. In the face of silence, without the
limits imposed by the word, the task and the consequent agreement are even easier.
For this reason, the formal (syllogism in which one or two statements are missing)
and material concepts (probabilities based on topoi catalogs, paradigms or indica-
tions) are not mutually excluded and can be efficiently reconciled.
This implies that the enthymematic syllogism, although it does not require great
knowledge or time available, unlike the demonstrative, requires some agreement
between the speaker and the listener, a somewhat pre-assumed coincidence of opin-
ions on the subject. When these common points do not exist, which happens very
often, the argumentation makes use of eristics, as this paper argues.
Strictly speaking, apodictic and demonstrative syllogisms, considered in isola-
tion, do not constitute arguments, as they aim at the truth and not at persuasion.
However, they become important to understand argumentation because they are
often used to support stricto sensu arguments (enthymemes and erisms), which go
far beyond the evidence and demonstrations on which they are supposedly based.
People normally argue interweaving and entangling demonstrative syllogisms, such
as: “A person cannot be in two places at the same time > So-and-so was a thousand
kilometers away from the scene at the time of the crime > Therefore So-and-so is
not the author”, with enthymematic syllogisms such as: “Most criminals go back to
crime > So-and-so has already served time > Therefore So-and-so will go back (or
has already gone back) to crime” or “Every witness tells the truth > This witness
says the defendant is innocent > Therefore, the defendant did not practice the crime.”
In his Rhetoric, Aristotle classifies what he calls positive and negative lines of
proof, in order to provide a catalog of those that support enthymematic arguments
and lists 28 of them. These proofs are topoi, commonplaces generally accepted in
the discursive environment, very important in persuasive argumentation.
Some consist of technical arguments used by legal hermeneutic, such as the a
fortiori argument: if not even the gods are omniscient, certainly human beings are
not. Others are guided by pure and simple induction, as, in the example of Aristo-
tle, one should not hand over the care of one’s own horses to people who treated

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Rhetorical Construction of Legal Arguments

other people’s horses badly or yield the care of one’s safety to those who failed to
guarantee the safety of other people. Still other proofs ponder consequences consid-
ered good or bad and are related to the speaker’s interests: education leads to both
wisdom and unpopularity and thus the topoi confront each other “it is not desirable
to be educated because it is bad to be unpopular” and “it is good to be educated
because it’s good to be wise”. And so on [7 (II, 23, 1397a-1400b), p. 645–649].
Aristotle distinguishes opinions that are accepted because they are defended by
the majority, the wisest or most upright, from the statements that only appear to
have the recognition of opinion, without having it. Thus, he seeks to distinguish the
enthymeme from the eristic syllogism, imputed to the sophistical practice.
He states that a person must be defined as a “sophist” according to his (bad) moral
purposes, whereas he is defined as “dialectic” not because of his moral purposes, but
because of his argumentative faculties [7 (I, 1, 1355b), p. 595]. This means that one
can argue in a dialectical and eristic way at the same time and that is why one should
not only understand dialectical reasoning as a kind of syllogism. It also shows how
the distinction between eristic syllogisms and the others, for Aristotle, is rooted in a
claim for ethical correction.
In the origin of eristics (ἐριστικὴ) is the word Éris (Ἔρις), name of the goddess
of discord and disputes. Eristic designates the art of participating in debates with
the pragmatic objective of overcoming those who disagree, that is, victory is the
main objective and the appeals to facts and to an eventual truth are only strategies
in this direction. The speaker takes advantage of any means, such as the ignorance
or technical unpreparedness of opponents and listeners, to ensnare them in contra-
dictory, untrustworthy or simply false statements. Because of Aristotle’s work On
sophistical refutations, translated into Latin as De sophistiscis elenchis, eristics is
also called elenctics [26, p. 700].3
Eristics was taught and practiced by sophists, so erisms are sometimes presented
as synonyms for sophisms, as well as for paralogisms (παραλογισμός). However,
there are authors who distinguish these last terms under the criteria of the speaker’s
intention, understanding sophistry as a syllogism purposely constructed to deceive
(ethical defect), whereas paralogism would simply be result of mistakes because of
defects in reasoning (incompetence or technical failure).
In a more technical sense, eristics consists of the art of arguing for or against any
thesis, regardless of its content, and was an important part of the education of young
people for public debate and politics in classical Greece. It also intended to lead to a
critical distance from one’s own and others’ convictions. Empirically speaking, the
statements may be consciously false, that is, the speaker may know that he is lying,
but this does not necessarily have to happen for a syllogism to be called eristic. Eris-
tics thus also encompasses paralogisms.
But the problem with talking about an objectively false syllogism is that it
requires a belief in the truth. For those who refuse the certainty of truths, only
subjective intention, sincerity, can guarantee the distinction between eristic
and enthymematic syllogisms intended by Aristotle. So the enthymeme is only

3
  FERRATER MORA says that this work is considered an appendix of the Topics.

13
 J. M. Adeodato

possible when the speaker believes in what he says, which has nothing to do with
truth.
The meaning of those concepts varies with the author, needless to say. Plato,
for example, considers eristics as the opposite of dialectic and accuses sophists
like Euthydemus of confusing the two types of discourse, with the aim of giv-
ing eristics philosophical dignity. But eristics, unlike dialectics, is not capable of
leading to knowledge. Schopenhauer, on the other hand, considers eristics a type
of dialectic and understands dialectics practically as synonymous with rhetoric
[27, p. 6 f.].
A final form of syllogism is abduction (άπαγωγή), brought by Charles Sanders
Peirce and his disciples to modern linguistics as a new kind of syllogism, in addition
to the inductive and deductive ones expressly classified by Aristotle [1, p. 49–70].
This type of argument is also called abductive inference, retroduction or simply pre-
sumption, since it is based on conjectures.
If induction starts from the case (minor premise) and from the result (conclusion)
to arrive at the rule (major premise) and the deduction goes from the rule (major
premise) and from the case (minor premise) to the result (conclusion), by simple
combinatorial analysis there is a third possibility: going from the rule (major prem-
ise) to the result (conclusion) and from there to the case (minor premise), which
constitutes the abductive syllogism, which at first Peirce simply called “hypothesis”,
in his famous text [28].
Despite common points, for pragmatism induction and abduction are not to be
confused. Induction goes from the similarity between the particulars to the general.
It does not lead to the same certainty as deduction, but abduction is intended to be
even less rigorous than induction, as it seeks only the best possible solution, not
knowledge.
Among the criteria for choosing this “best” solution is, for example, the so-called
“Occam razor”, a respected way of thinking among jurists, suggested in the four-
teenth century by William of Occam. According to this criterion, the simplest or
least extraordinary solution should be chosen, in view of those that present them-
selves as plausible. Also called law of economics and law of parsimony [26, p. 786
f.].
At this point, the issue is not just separating abduction from deduction, but also
abduction from enthymeme. The distinction is important to separate the possible
from the probable, concepts that are often naively confused or used by one another
as a strategy to confuse unwary interlocutors. And, it must be insisted, probability is
the basis of the enthymeme.
Abductive reasoning, guided by this rule of parsimony or simplicity, would be
the method to choose when a complete set of observations is not available – which
is almost always the case in human conflicts – and it is necessary to proceed to a
solution.
Its importance to law is obvious. When jurors hear evidence in a criminal case,
they must consider whether the prosecution or defense offers the most plausible
solution to the problems raised by the data posed. While there is no certainty about
their verdict, as there may be additional evidence that was not admitted in the case,
they make their best guess based on what they think they know.

13
Rhetorical Construction of Legal Arguments

While induction requires that the evidence supporting the argument be reason-
ably defined and confirm or reject the hypothesis, abductive reasoning is char-
acterized by lacunae and silences, be it in the arguments, in the empirical data
on which they are based, or both. A patient may be unconscious or fail to report
some of his symptoms, for example, resulting in incomplete evidence, and her
doctor may arrive at a conclusion that does not explain some reported aspects, but
it is necessary to arrive at the most likely diagnosis. The lawyer and the judge act
similarly, for the case has to be decided.
A gun is known to kill people (rule) > This person killed the victim (conclu-
sion) > Because this person has a smoking gun in his hand and is next to the vic-
tim (case). It turns out that other explanations are viable: the person picked up the
revolver lying on the floor after the killer escaped; the murderer kidnapped the
person’s child to compel him to assume the crime; the victim committed suicide,
etc. However, the simplest option is abducted from the observed data.
What we see is the efficiency of adopting abduction as a complementary route
to induction, when this one leads to different results and uncertainty. Therefore,
abduction would be a final phase of induction and not a third independent way of
argument. According to this thesis, abduction is only one of the topical founda-
tions, already classified by Aristotle, or even a synonym for traditional induction.
In any case, a distinction by formal criterion can be applied, as in the following
examples:

Deduction
Rule: all the people present here are philosophers.
Or: Murder is the unlawful killing of a human being with malice afore-
thought (Title 18 U.S. Code § 1111 – Murder).
Case: these people are present here.
Or: Doe killed John unlawfully with malice aforethought.
Result: these people are philosophers.
Or: Doe is condemned for murder.

Induction
Case: these people are present here.
Or: Doe killed John unlawfully with malice aforethought.
Result: these people are philosophers.
Or: Doe is condemned for murder.
Rule: all the people present here are philosophers.
Or: Murder is the unlawful killing of a human being with malice afore-
thought (Title 18 U.S. Code § 1111 – Murder).

13
 J. M. Adeodato

Abduction
Rule: all the people present here are philosophers.
Or: Murder is the unlawful killing of a human being with malice aforethought
(Title 18 U.S. Code § 1111 – Murder).
Result: these people are philosophers.
Or: Doe is condemned for murder.
Case: these people are present here.
Or: Doe killed John unlawfully with malice aforethought.
In the attempt made now to separate and carefully define these concepts and types
of syllogisms, it is possible to perceive their ambiguity and vagueness, with the
great variations of meaning over time and with the diverse perspectives on the part
of the scholars who have studied the topic. Basically, this rhetorical arsenal of rules
and reasoning are all components of what ancient wisdom called “prudence”, as in
the word jurisprudence, because it is in this universe that the wise human being, and
then the competent jurist, has to think and walk.
Remember: all these studies done by Aristotle focus on persuasion, which he con-
siders the sole purpose of argumentation, leaving out the old eristic tradition, always
linked to advocacy and law in general.

4 The Age‑old Confrontation Between the Sophistic and Aristotelian

Theories of Argumentation

It was stated above that, before Aristotle, rhetoric comprised all kinds of arguments,
regardless of ethical positions, consisted of studying and learning the ways to make
a speech prevail in a debate. These paths had many nuances and shades. The masters
of rhetoric were the sophists, against whom the tradition inaugurated by Plato and
Aristotle would arise.
To that end, Plato clearly separates rhetoric and philosophy: knowledge is the
truth, the nourishment of the soul; the seduction of sophistry only removes rigor in
method. Socrates, eloquent as he is, goes so far as to say that it is shameful to be a
sophist and that eloquence is a danger. Protagoras replies that his profession is not
truth, but to teach the art of politics and make men good citizens [29, p. 40 and 43].
Aristotle agrees that rhetoric lacks the dignity of philosophy, but recognizes the rel-
evance of its study to the point of writing his own Rhetoric.
It reduces the scope that the sophists had of rhetoric to suggest that it belongs
only to the field of persuasion. Discursive strategies in which there is no sincere
confluence of information are not part of the rhetoric, but of the eristic. However,
it is crucial to note that the insertion of ethics is not in the initial definition that
Aristotle himself gives of rhetoric: “Let it be admitted that rhetoric is the power to
observe, on any subject, what is likely to generate convincing” (ἔστω δὴ ἡ ῥητορικὴ

13
Rhetorical Construction of Legal Arguments

δύναμις περὶ ἕκαστον τοῦ θεωρῆσαι τὸ ἐνδεχόμενον πιθανόν) [7 (I, 2, 1355b), p.

595].
In bringing this ethical requirement to separate (good) rhetoric from mere
technique to win a debate at any cost, Aristotle says that the means of persuasion
are ethos, pathos and logos. Its originality is more in the refusal of the eristic,
assuming ethical pretensions, than in the use of these three ways, which were
known to the sophists. Aristotle introduces the idea that argumentation needs to
be connected to virtue (ἀρετή) and weighting (φρόνησις), although he acknowl-
edges that there is no proper name to distinguish honest rhetoric from dishonest
[8 (I, 4, 1359a), p. 599]. This banning of eristics will fit readily centuries later in
the discourse of Christianity, one of the great forges of Western culture.
The relativistic conception of rhetoric as purely instrumental, not necessarily
connected to an ethics of good, was not new either, and Aristotle himself was
confronted by the sophists, who considered “good” as no more than a strategy to
impose the subjective moral vision of the speaker.
It can be said, in a simplified way, that the persuasion by the logos is due to
what is said, to the content of the message, regardless of the context, of the par-
ticipating people, etc.; a speech convinces by ethos when it depends on who are
the sender and the receiver in the communication; pathos is related to the strate-
gies that control the emotions involved in the dialogue, to how the messages are
transmitted.
It is noteworthy that the philosopher has inserted pathos in rhetoric, as a legiti-
mate path to persuasion, on the same plane as ethos and logos, even knowing that
the appeal to emotions was an important component of the sophistry he wanted
to combat. When comparing the three rhetorical paths, however, Aristotle always
prioritizes ethos, the personal qualities of the speaker, because “his character can
almost be called the most effective means of persuasion he has”.
Trying to define more clearly Aristotle’s criteria for separating his rhetoric from
the eristic, requires looking for the foundation of persuasion, which reveal two
related criteria that can be called sincerity, from the internal point of view, and con-
fessability, from the external point of view. In fact, for an argument to be persuasive
it is necessary that both speaker and addressee believe in the speech, this is what the
three paths (logos, ethos and pathos) have in common. This means that they need to
be revealed explicitly, not only between the parties but also before any audiences. In
other words, they are confessable ways, accepted as argumentative bases by those
involved. Aristotle only considers what actually convinces the audience, which
needs to understand the context of the message, the structure of the arguments and
sincerely accept them, sharing the speaker’s opinion.
Because they are so old, these terms that designate the Aristotelian forms of per-
suasion varied greatly in meaning in time and space, that is, they are words endowed
with great porosity, as mentioned above. The study of the variations, starting with
etymology, provides an efficient guide for understanding such pathways.
The oldest meaning of logos appears in the verb λέγειν, as the action of speak-
ing or saying, characteristic of human beings, more recently extended to the action
of thinking. In still later texts the verb is transformed in a noun and, in the form of
logos (λόγος), designates the result of these actions as well, that is, speech, thought,

13
 J. M. Adeodato

among other meanings, such as “word”, “opinion”, “reason”. Needless to say, in

addition to the changes according to the time, these different meanings depend on
who uses them, on the philosophical, political or religious context.
In a fragment of the pre-Socratic philosopher Anaxagoras the dichotomy between
logos and érgon (ἔργον) appears, expenditure of energy, as if logos were a prepara-
tion for érgon, and érgon designates the effect or result of logos. The dichotomy
reappears in the sophists and gains an ethical dimension, as they relate logos with
νόμος and érgon with Φύσις, distinguishing the normative world from the world of
nature.
Among the Pre-Socratics, also called philosophers of nature, nómos and phy-
sis are not necessarily separate spheres. Even though nómos demanded an ethical
choice on the part of a thinking mind, for authors like Heraclitus, the ethical laws
and customs that come from them are derived from divinity and therefore they are
as universal and “physical” as the laws of nature, since they are part of it. The new
generation of philosophers, the sophists, usually understand nómos and physis as
excluding spheres, the first being a human creation [30, p. 58–59]. Contrary to the
previous perception, they begin to affirm that ethics, social classes, institutions, etc.
do not exist by physis, but by nómos, inaugurating this debate that remains until
today.
So Protagoras identifies logos with the argument of each one and constructs what
he calls dissoi logoi (δισσοὶ λόγοι), his main methodological concept, consider-
ing that every topic admits divergent (dissoi) arguments (logoi). Later skeptics, like
Sextus Empiricus, also used the same idea to weigh opposite positions (ισοστενία),
which could show “equal force”.
Here the logos already appears as one of the avenues of persuasive discourse,
showing that persuasion had become part of the Sophistic rhetoric before Aristotle,
although not dissociated from the eristic. That is why “man is the measure of all
things”, as Protagoras said, and there is no objective criterion for clearly separating
the just from the unjust or the true from the false. Isocrates is another of the sophists
who will define rhetoric as the art of logos.
As he accepts this insertion of logos in rhetoric and makes it one of his persua-
sive paths, Aristotle understands that the sphere of philosophical and scientific truth,
which is opposed to rhetoric, is not within the realm of logic, but rather in the field
of what he called analytics (analytical rhetoric). Logic, for him, is the study of logos
and logos is one of the paths of persuasion in rhetoric, albeit the one closest to dem-
onstration. This current meaning of logic, like the study of the inexorable rules of
human thought, a field of apodictic and demonstrative syllogisms, will be built later
and is still controversial today. The broadest meaning of logos is still the study of
thought and its discursive expressions, including the field of argumentation [31, p.
624 f.].
Etymology also reveals that when the word ethos appears, in its classic form, it
seems to result from a fusion of two similar terms, with different meanings, which
had not yet been differentiated in ancient Greek [32, p. 23 f.]. In the sphere of érgon,
the expression ethos (έθος) meant “habit”, “custom”, individual or social, an empiri-
cal data that could be observed just like the data of nature (physis). In the sphere of
logos, extended to nómos, the spelling ěthos (ήθος) indicates “character” or “way

13
Rhetorical Construction of Legal Arguments

of thinking”, which will generate the connection between the modern meanings of
“norm” and “ethics”.
Bringing the two meanings together, as happens later, leads ethos to designate
someone’s characteristics, such as being good-natured, phlegmatic or melancholic,
a personal character, a set of psychic and genetic states that results in habit and that
also leads to certain ethical preferences and attitudes. This ethos has a meaning that
is not only empirically observable, but even physical, as it can supposedly be seen in
the physiognomic traits, in the look, in the individual’s moves [33, p. 480 and 766;
34, p. 894].
In short, the historical evolution of the word initially shows a territorial reference,
designating the environment in which the animal has the habit of living according to
its physical characteristics, as if in its natural habitat. Then, when applied to human
beings in the active sphere, ethos consists of a set of uses and customs, both for the
individual and the community. From there it evolves to a more abstract meaning,
similar to what is understood today by the character of the individual or, metaphori-
cally, of a people, that is, a disposition towards displaying certain attitudes to the
detriment of others, such as being indecisive, dreamer or pragmatic, for example. In
persuasion through the ethos, the speaker’s authority needs to be clear to all partici-
pants, as the speech convinces by the credibility of the one who speaks. If someone
else argued with the same content, saying the same things, the message would not be
as readily accepted.
Connected from the beginning to the dichotomy between physis (world of nature)
and nómos (normative world), already mentioned, the expression “ethics” takes its
course and acquires a descriptive meaning, the way people actually behave in the
real (natural) world, and another prescriptive (normative) meaning, designating the
way in which people should behave. They are fundamentally different perspectives.
That is why it is difficult for moderns to understand that the characteristics of a per-
son’s “bad character” are also ethical positions, such as defending torture, the death
penalty or eugenics. Description is confused with prescription when saying, for
example, that racism “is not ethical”, when it is meant that it is a bad ethical posture.
For many people, racism is the good and the just. To fight normatively, it is useful to
understand empirically.
The word pathos can be translated by emotion, feeling, passion and was used in
the everyday language of ancient Greece very much as we use it today. From the
sophists, it gains a meaning of control of these states of soul. It no longer designates
only the emotions, but also the talent to direct them, and use the passions and feel-
ings of the audience in order to achieve their adherence to the discourse. In other
words, in addition to designating these sensations as phenomena, pathos becomes
an attribute of the discourse that influences them, an efficient characteristic to be
sought by the speaker, who must awaken them and guide them to persuade.
At the time of Aristotle there is an increasing attention to the logos of the dis-
course, however the importance given to pathos seems to have been great in the
Sophistic tradition, since the philosopher criticizes the speakers who excessively
appeal to this way to conquer the audience. That is why it gives pathos a more pas-
sive character, present in the auditorium, which would be attracted by the speaker’s
more active ethos. He hesitates, but even so he considers pathos as one of the three

13
 J. M. Adeodato

persuasive paths of rhetoric and is, at this point, closer to the sophists than contem-
poraries like Hannah Arendt and Robert Alexy, mentioned above.
Aristotle highlights the need for ethos and pathos to function in connection in the
discourse, precisely because of the possibility of uncontrolled pathos, whose predict-
ability is more fragile and can lead to unforeseeable consequences. Affections need
to be controlled by virtue of character and achieve a balance of prudence, metriopa-
thy that combats the overwhelming domain of passions: “… virtue refers to passions
and actions, in which excess is a form of failure…” [35 (II, 5–6, 1106b20–25), p.
352]. Although pathos did not necessarily designate emotional exaggerations in the
speech, it was this negative meaning that prevailed in today’s European languages,
as can be seen in the adjectives “pathological” and “pathetic”.
For Aristotle, who wants to distinguish the enthymeme (core of rhetoric) from
the eristic syllogism (core of eristic), which he calls “apparent syllogism”, the lat-
ter is characterized by being based on premises and/or reaching conclusions that
only “appear” to be plausible. Although he does not expressly equate plausibility
with truth, mutually exclusive concepts in his Rhetoric, it is clear that the basis for
the difference is the ideal distinction between appearance and reality, or falsehood
and truth, which is not accepted by the sophists, who either refuse any distinction
between enthymematic and eristic syllogisms or seek other criteria to separate them.
One of these other criteria starts from the formal structure, whereby the eristic
strategy consists of a simple change in the position of the terms of the major and
minor premises and of the conclusion. Take an example of eristic syllogism: every
snake has a tongue; Socrates has a tongue; therefore, Socrates is a snake. And com-
pare it with the apodictic syllogism put by Aristotle as an example of indisputable
evidence: every man is mortal; Socrates is a man; therefore, Socrates is mortal. For-
malizing the statements, the following is obtained, in the case of eristic syllogism:
all A (snake) is B (has a tongue); C (Socrates) is B (has a tongue); therefore, C
(Socrates) is A (snake). And in the case of apodictic syllogism: all A (man) is B
(mortal); C (Socrates) is A (man); therefore, C (Socrates) is B (mortal).

Eristic Syllogism: every A – B; C – B; therefore C – A.

Apodictic Syllogism: every A – B; C – A; therefore C – B.

In the erism, the minor premise links the third variable (C) of the argument to
the second variable (B) of the major premise and not to the first (A), unlike the apo-
dictic syllogism. Thus, the criterion is not that of an apodictic syllogism which is
“false” in content, but rather a different way of organizing the form of the argument.
For Gorgias, for example, the eristic pathways are also part of persuasion and
their effects can be beneficial from an ethical perspective, so it is not up to the phi-
losopher to teach virtue and the difference between good and evil, because what
seems true to this person will not be the same for that one [30, p. 171]. And convic-
tions give rise to intolerance, nothing more obvious.

13
Rhetorical Construction of Legal Arguments

What is observed, realistically, is that the falsity or untruth of a supposedly apo-

dictic syllogism consists of the lack of correspondence between the argument and
the facts. Now, as “fact” is an ontologized argumentative account (made “real”, “rei-
fied”), there are no strictly apodictic syllogisms about empirical data. Affirmations
from the sense organs do not rigorously admit the qualification of true or false.
In short, shown as such in isolation, these erisms seem to jump to the eye as
absurd and are likely to be unmasked as mere argumentative strategies, mere lies
concerning evidences; but that would be a superficial view. In a strategically well-
structured argument, erisms appear in the midst of enthymemes and even as new
argumentative chains based on supposedly true syllogisms, presented as apophantic.

5 Conclusion: the Insertion of Eristics in Argumentation

The analysis of the eristic arguments separately would be very interesting, but was
not done here, precisely because the objective of the paper is general: to draw atten-
tion to those strategies of human discourse that cannot be revealed without losing
their effectiveness. Unlike persuasion, whose strategies (ethos, pathos and logos) are
perceived and accepted by the participants, the decision is also influenced by hidden
techniques. It is fitting that Aristotle calls erisms “apparent” syllogisms, albeit on
other grounds, and separates the rhetoric that he considers ethical from the eristic
rhetoric. The function of argument in Aristotelian rhetoric is to convince; in eristics,
the goal is to win.
This difference between Aristotelian rhetoric and modern realistic rhetoric turns
on the importance of studying legal argument descriptively, in order to understand
law. The Aristotelian approach, believing in the truth of certain syllogisms, improp-
erly transfer this criterion to linguistic environments in which they do not fit. Neo-
Aristotelians point out that eristics does not seek persuasion, but only victory, and
that it uses logical coherence as one of its strategies only when it suits the speaker.
Those on the other side would say that no speech seeks the truth, since truth does
not exist, but only victory, the winning narrative. Persuasion is an important part
of this process, since it is obvious that it is more stable and sustainable to win by
convincing, when this is possible. Logos, ethos and pathos all play a part in rhetoric,
but they are rarely sufficient to prevail. Hence the need for contemporary decision
theory to research eristics, which, in the view of a realistic rhetoric, usually plays the
most crucial role in argumentation.

Acknowledgments  With the support of the Conselho Nacional de Desenvolvimento Científico e Tec-
nológico - CNPq.

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