Artigo Científico - Sobota, Katharina. The Rhetorical construction of law

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International Journal for the Semiotics of Law V/13 [1992] 
THE RHETORICAL CONSTRUCTION OF LAW* 
by 
KATHARINA SOBOTA 
(Johannes Gutenberg-Universittit Mainz) 
I. Sometimes it is helpful to summarize the results at hand and 
integrate them into a more general view. This broader perspective 
is usually achieved by concepts such as "the Law", "the legal dis- 
course", o r - the prevailing term in Continental theory - "'the 
legal system". 
The risks connected with these abstract entities are well known; 1 
however, if one uses the term "system" as a mere auxiliary supposi- 
tion, and if one takes into account the Wittgensteinian intention of 
forgetting the concept after one has used it, one has a chance to es- 
cape the usual dangers of holism and systematisation. 
A good way to maintain scepticism towards one's own concepts is 
intentionally to replace them with ambiguous metaphors. Such a 
trope could be the image of the "web": while the term "system" is 
able to captivate us with its clear, simple and scientific sound for 
ever, the metaphor "web" lead us into a sphere of delicate order, in 
which concepts have no fixed meaning and thus can never provide 
orientation for truth-seeking scientists. 
The idea of conceiving human worlds as "webs" has a certain 
tradition behind it. Above all, one is reminded of a thought of 
Friedrich Nietzsche, who compared the human world of concepts 
with a "construction of cobwebs. "2 
This essay is based on a paper presented on the 7th Conference of the 
IASL in Utrecht under the inspiring title "The Semiotic Web of Law"; it has 
profited a lot by the final discussion, and especially by Willem J. 
Witteveen's response. 
1 See the criticism of the concept of "the unity and identity of the legal 
system" by Bernard S. Jackson, Law, Fact and Narrative Coherence 
(Merseyside: Deborah Charles Publications, 1988), 131ff. 
2 Friedrich Nietzsche, tiber Wahreit und Liige im aussermoralischen 
Sinne, in Die Geburt der Tragi~die Unzeitgem~fe Betrachtungen, 
40 KATHARINA SOBOTA 
In the same context he also invents metaphors such as "scaffold- 
ing and playthings" or "timberwork and planking, "3 but he always 
returns to the image of the cobweb, which to him seems the most 
appropriate to circumscribe one of his central thoughts: namely, 
that anything we hold to be a "truth", even the most basic categories 
of our orientation, "is produced within ourselves and out of ourselves 
with the same necessity as a spider spins. "4 So we are "bui lding 
geniuses" who by far surpass the bees, since the material we use for 
our constructions is not taken from nature, as is the case with bees' 
wax, but from ourselves: it is the "far subtler stuff of concepts" which 
we apply by means of poesy and rhetoric. 5 
In other words, human certainties (as, for instance, the systems 
of science, morality or law) are self-created products. Nietzsche 
sees our convictions as webs we are constantly wea~ng, believing at 
the same time the self-spun threads to be expressions of a pre-given 
order. What we believe to be the truth are invented metaphors by 
which we constitute our personal relations. 6 We are no external 
observers, but are sitting in the centre of our star-shaped stabilizing 
web of meanings. Within this, we behave as if we were the measure 
of all thingsY 
II. With this reference to Protagoras, at the latest, it becomes 
obvious where the roots of Nietzsche's considerations are to be 
found: in that thinking of antiquity cultivated by the Sophists under 
the name of "Rhetoric", being not only regarded as a practical proce- 
dure for producing convictions, but also as an analytic discipline ex- 
ploring the patterns of these processes, s By seeking these rhetorical 
Nachgelassene Schriften, 1870-1873, Kritische Studienausgabe, ed. G. 
Colli, M. Montinari (2 Aufl., Berlin/New York: de Gruyter, 1988), 873ff., 882, 
885: "Bau aus Spinnef~iden", trans, by the author. 
3 Ibid., at 888: "Geriist und Spielzeug", "Geb/ilk und Bretterwerk." 
4 Ibid., at 885; italics by the author. 
5 /bid., at 882, 88O. 
6 Ibid., at 880-883; cL Ottmar Ballweg, "Analytische Rhetorik als jurist- 
ische Grundlagenforschung", in R. Alexy, R. Dreier, U. Neumann (eds.), 
Rechts- und Sozialphilosophie in Deutschland heute (Stuttgart: Franz 
Steiner, 1991), 45-54 (ARSP Beiheft Nr. 44). 
7 Nietzsche, supra n.2, at 883. 
8 Cf. Ottmar Ballweg, "Analytical Rhetoric, Semiotic and Law", in R. 
THE RHETORICAL CONSTRUCTION OF LAW 41 
patterns the rhetoricians discovered that human conceptions, espe- 
dally of what is just and unjust, were "linguistic webs": they con- 
sisted of opinions based on language. They were articulated, pro- 
duced and influenced by means of signs. 
Unlike early semiotics, which was more interested in the 
structure of the "webs", rhetoric has concentrated from the beginning 
on the "process of spinning and weaving", i.e. the production of the 
semiotic webs. The product (law as a system of signs) or the producer 
(human beings) have been less important than the question "how is 
it produced?" The terms "sign" and "user of signs" (speech, speaker, 
audience) therefore are not the basic categories of analysis, but are 
introduced secondarily as a "means of persuasion. "9 The primary 
category is the rhetorical act of bringing about, changing, 
extinguishing human conceptions (as to what is just or unjusO. The 
advantage of this approach lies in its potential empirical verifica- 
tion: whether a rhetorical pattern does or does not constitute success 
can at least be "verified" approximately by the success or failure of 
the action in question (e.g. winning or losing the trial). 
III. During the last few years interest has increased in the 
rhetorical construction of our legal conceptions. Nevertheless, we 
still do not know much about the patterns of "how Law is produced". 
Of the various approaches, which all seem promising in one way or 
the other, I should like to mention only a few: the conception of 
"narrative rules" by Bernard Jackson, the empirical study of so 
called "socio-pragmatic patterns" by Pompeu Casanovas, and the 
analysis of the interactions between judges and jury by Paul 
Robertshaw. Finally, there is modern research in rhetoric, which 
has approached the subject in three ways, so far: (1) Theodor 
Viehweg, the founder of the Mainz School, and Ottmar Ballweg 
have done basic research, and have tried to show that the analysis 
of juridical actions lies within the competence of rhetoric. (2) This 
mainly theoretical work has been completed by textual analyses. 
Fundamental thereto are the studies concerning juridical argu- 
mentation by Cha'im Perelman, and the analysis of decisions of the 
Kevelson (ed.), Law and Semiotics, Vol.1 (New York: Plenum, 1987), 25-33; 
idem, "Entwurf einer analytischen Rhetorik', in H. Schanze (ed.), Rhetorik 
und Philosophie (Miinchen: Wilhelm Fink, 1989), 229-247. 
9 Aristoteles, Ars Rhetorica, L2.2-6. 
42 KATHARINA SOBOTA 
Bundesverfassungsgericht (constitutional court) by Waldemar 
Schreckenberger. (3) A third group is interested in law as a rhetori- 
cally constituted social system. This approach, which was 
initiated by BaUweg, too, will be developed further in this paper, 
taking into consideration the results of textual analysis. 
The most important success we have gained so far in this field is 
perhaps the insight that everything is much more imponderable 
and paradoxical than expected by scientific optimism. Never- 
theless, there are some results which might lead further investi- 
gations in the right direction. They still do not provide exact 
information about individual legal behaviour patterns, but they do 
represent a provisional catalogue of fundamental conditions ans- 
wering the question of when and under what circumstances the "web 
of law" continuesto be spun and weaved successfully, and when not. 
Following current terminology I will name these conditions "con- 
straints". In further discussions we might perhaps find a less mis- 
leading word without associations of "external laws" or "invincible 
coercions". At the moment, I cannot see a concept which could 
replace this traditional term. The word "constraint" prevents us 
from mistaking the development of legal patterns as arbitrary. 1° On 
the other hand, the use of "constraints" does not imply a legal 
system that is governed by axiomatic rules. It rather suggests that 
the formation of law is moulded by some fundamental functions and 
by the way the system fulfils this task; especially by the way it 
solves the problem to keep what it is: Law has to continue itself; the 
spiders have to sustain their webs. 
1. Constraint of Decision 
On the academic level, Law sometimes appears as a never- 
ending story. However, in every-day practice there are situations 
which forbid endless discussions. They demand of jurists to arouse 
the feeling that m finally m an answer has been found. This does 
not mean that lawyers and judges have to solve a conflict, but rather 
that they are often asked to conclude it) 1 This "conclusion" of con- 
10 K. Sobota, "System and Hexibility in Law", Argumentation 5/1 (1991), 
275-282 ("Legal Argumentation"). 
11 O. Ballweg, Rechtswissenschafl und Jurisprudenz (Basel: Helbing & 
THE RHETORICAL CONSTRUCTION OF LAW 43 
flicts (in the guise of "solving" them) is the kind of task the law-sys- 
tem is expected to fulfil within the interplay with other social 
systems. 
To perform this task, jurists have to transfer the chaos of ev- 
eryday strife into a certain order, the order of legal standardisa- 
tions. They have to translate 12 an infinite problem into a finite 
one. 13 
They achieve this especially with the help of legal procedures, 
especially by rituals with an increasing degree of strictness. How- 
ever, the main means are provided by language: by the ordering 
force of grammar (Nietzsche), by the expectations of coherence as 
regard the content 14 and by a style characterised by a high semantic 
flexibility, that helps to adapt to different concrete situations. 
Another form is the art of allusion: for example, in juridical 
argumentation the norm on which a conclusion is supposed to be 
based is often not mentioned, is 
The interplay of these contradictory tactics lures the quarreling 
participants on to the tracks of legal thinking. 16 It channels every- 
day conflicts into a system of certainty w a system of certainty that 
is built on uncertainty ... the "flowing water" of human existence. 17 
Lichtenhahn, 1970), 23, 85f., 112f. "The Conflict is not concluded by 
solution, but it is solved by conclusion (Der Konflikt wird nicht durch 
LSsung beendet, sondern durch Beendung gel6st)", at 105; idem, "Science, 
Prudence et Philosophie du Droit", ARSP LI/4 (1965), 543ff., esp. at 554 with 
reference to Art.4 Code Civil: "Le juge qui refusera de juger, sous pr~texte 
du silence, de l'obscurit6 ou de l'insuffisance de la loi, pourra ~tre 
poursuivi comme coupable de d6ni de justice." 
12 James Boyd White, Justice as Translation. An Essay in Cultural and 
Legal Criticism (Chicago: The University of Chicago Press, 1990). 
13 Ballweg, supra n.6, at 50. 
14 As to the concept of "legal coherence" cf. Jackson, supra n.1. 
15 K. Sobota, "Don't Mention the Norm", International Journal for the 
Semiotics of Law W /IO (1991), 45-60. 
16 Cf. Thomas Michael Seibert, Aktenanalysen. Zur Schriflform juristi- 
scher Deutung (Tiibingen: Gunter Narr Verlag, 1981). 
17 Nietzsche, supra n.2, at 882. 
44 KATHARINA SOBOTA 
2. Constraint of Linkage 
Law does not exist as a phenomenon in itself. It arises from the 
way people behave, and it perishes when the forms of behaviour 
are no longer followed. Just as the spider has to keep on weaving 
daily in order to sustain its web we have to conjure the phenomenon 
Law day by day in order to "sustain" it. Wherever the chain of 
evocations breaks, law perishes. Only very seldom is it possible to 
revive a form of law which has not been exercised for a long time, 
and wherever it has proved possible, the success was due to an 
intervention which was not a legal one, but political or academic 
(e.g. recourse to written traditions). 
In order to enable daily evocations of the phenomenon Law, a 
society must have energy and room to do so. Both these are absent in 
situations of existential misery as well as in totalitarian states 
where the function of ending conflicts is not accomplished by law, 
but by other systems (religion, politics, etc.). ~8 
The constraint of linkage demands not only that the threads of 
the legal cobwebs are spun daily, but also that they cohere. 19 To 
reach that aim, legal rhetoric is forced to follow a double tactic: on 
the one hand, it has to be the manifest moment of legal order in the 
present, on the other hand it has to refer to the future. 2° Similar to 
a TV-series which satisfies the curiosity of its spectators only 
partly ~ and stimulates them with a "cliff-hanger" to watch the 
serial continue, legal rhetoric must take care that something re- 
mains open ~ in spite of its ordering function. The perfect formula 
for the calculation of justice would mean its end, once and for all. 
This openness of law, necessary for dramatic reasons, is guaran- 
teed best by the discrepancy between human demands and the hu- 
man means to construct justice. Which law, which judgement, which 
opinion should be regarded as the ultimate? In a legal system 
which is built on the conception of legal contest, and in a society 
18 K. Sobota, "Geburt und Tod fiktiver Welten", in M. Heuser, W. 
Schmidt (eds.), Gestalt. Gestalwerdung- Gestaltzer all (Hannover: Duphar, 
1990), 45-53. 
19 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen 
Theor/e (Frankfurt a.M.: Suhrkamp, 1984), 62, 158. 
20 Cf. Luhmann, ibid., at 157f. 
THE RHETORICAL CONSTRUCTION OF LAW 45 
which is open to criticism and sometimes interested in improve- 
ments, parts of the legal order seem always bound to revision and 
thereby stimulate participation in the legal discourse. 
Those critics articulating their views with means immanent to 
the system are the ones who create the tension without which the 
rhetoric of law could no longer exist. Part of these dynamic factors 
are not only revisions of judgements and alterations of laws, but also 
academic discussions with their utopias and insoluble conceptional 
oppositions (e.g. geometrical or arithmetical justice? 21 Individual or 
community? Positivism or natural Law?) 22 How intense criticism can 
be in order to be productive depends on the actual demand for order. 
A bored society loves the critic better than a society shaken by 
alarming events. In times of irritation legal rhetoric must stress its 
ordering aspect, its "completeness": that law is a "universal, con- 
tinuing entity." 
As judicature, administration and legislature permanently face 
new problems, and these problems are solved by means of a per- 
manently altering understanding of Law, it is not at all apparent 
that this fiction should be accepted. Why should the mere contigu- 
ity of totally different actions of individuals be experienced as "the 
same"? What art must rhetoric apply to make out of "numerous 
drops" the "self-same river" (Heraklites)? This question is not only 
important in order to understand how the constraint of linkage is ful- 
filled, but also in order to comprehend how the system of law can 
establish itself and maintain its existence. As the next but one 
section will show, a solution to this problem is sought in the context 
which is described by the catchword "self-reference". As self- 
reference seems to be a central conditionof legal rhetoric, it will be 
dealt with separately as the fourth condition of the system of legal 
rhetoric. 
3. Constraint of Invention 
The sphere in which Law exists as an entity is language. 
With the help of language we can construct a "second" reality w 
21 Aristoteles, Nicomachean Ethics, V.7. 
22 Cf. K. Sobota, "Stimmigkeit als Rechtsstruktur', Archiv far Rechts- und 
Sozialphilosophie LXXVII/2 (1991), 243-256. 
46 KATHARINA SOBOTA 
a reality which seems not to be a sequence of singular and transitory 
actions, but a realm of being entities. Actions pass; concepts stay. 
In order to invite people to "live in language", words do not only 
have appeal to brains but also to hearts. The task of attracting 
hearts is fulfilled by rhetorical figures and tropes. An empirical 
method ("rhetorical seismogram"), that was recently developed, 
shows the high intensity of rhetorical figures in juridical texts. 23 
4. Constraint of Self-Reference 
Although a conceptual language can claim an ever-lasting 
reality, and rhetorical figures can invite people to live in this real- 
ity, Law needs devices to reproduce this reality in a sufficiently 
similar way. These devices are self-references. 
The phenomenon of self-reference is based on an artificial pre- 
supposition: in the same way that one needs a mirror for a self- 
reflection, self-reference demands a "second level", a sphere some- 
what "above" the dimension of simple actions. This second sphere, 
23 K. Sobota, "Rhetorisches Seismogramm. Eine neue Methode in der 
Rechtswissenschaft",Juristenzeitung (1991), in press. 
THE RHETORICAL CONSTRUCTION OF LAW 47 
which we can also call "observer", "memory" or "order of a higher 
degree" , might be identical with the first sphere so far as its 
"material" is concerned; 24 it is of a different quality, however, so far 
as "information" is concerned. 2s This different quality is the result 
of a paradoxical concurrence of difference and identity: on the one 
hand the reflected image of the object is different from the object 
proper, on the other hand it is identical insofar as the object proper 
sees itself represented by the image. There is another constitutive 
aspect besides the features of difference and identity: this self- 
referential representation is not descriptive but prescriptive. It is 
not its task to "describe", "observe" or "represent" passively, but it is 
used to prescribe action. 
An exemplification of such a self-referential representation 
could be the rhythm of a dance: the rhythm represents the dance in 
an acoustic, non-melodic dimension - - it provides a kind of abstract 
of the dance- and at the same time it moves us, the dancers, to go 
on and repeat the steps which constitute the dance itself. 
As we learn from recent biology, any form of life is dependent on 
such paradoxical duplications. The individual action is singular 
and transitory; the synchronic moving self-referential represen- 
tation produces the blue-prints which enable reproduction and com- 
plex coordination. 26 The organisation of social life is, as far as this 
point is concerned, similar to the biological mechanisms of con- 
struction: here, too, we need "higher" levels of signs representing the 
simple action for the purpose of repetition, coordination and in- 
24 In these cases the "materials" are letters or neurons. 
25 The auxiliary concepts "materials" and "information" are supposed to 
express a relation only; it goes without saying that both elements are 
inseparable irt living systems. 
26 E.g. Manfred Eigen, Peter Schuster, The Hypercycle. A Principle of 
Natural Self Organisation (Berlin: Springer, 1979); Hermann Haken, 
Information and Self-Organisation (Berlin: Springer, 1988); Humberto R. 
Maturana, Francisco J. Varela, Autopoiesis and Cognition (Boston: Reidel, 
1979, Boston Studies in the Philosophy of Science); H.R. Maturana, 
"Autopoiesis", in M. Zeleny (ed.), Autopoiesis: A Theory of Living 
Organisation (New York/Oxford: Elsevier Science Publisher B.V., 1981), 
21ff., 25, 32; idem, Erkennen. Die Organisation und Verk~rperung yon 
Wirklichkeit, ausgew. Arbeiten zur biologischen Epistemologie, 
(Braunschweig/Wiesbaden: Vieweg, 1982), 21, 39, 47ff., 73ff. 
48 KATHARINA SOBOTA 
tegration. The dimension to be employed for this, alongside the non- 
verbal systems of signs, 27 is human language. 
With the help of this very special way of self-reflection (and 
here at last the parallel between biological and social systems finds 
its end) we succeed in inventing a "'second" level, besides the "first", 
in which man's social interactions can be represented in a different 
and prescriptive way. 28 
What is astonishing about juridical self-references is that they 
obviously exist in two versions: there are "genuine self-references" 
and "'pseudo-self-references". 
The "genuine self-references" are operatively apt means for the 
continuing tradition of law as a system. They are "the rhythm". 
Amongst them are to be numbered the forensic rituals, the techniques 
of rhetoric, the mechanisms of unofficial teaching by older and more 
experienced people, and the selection of recruits by means of 
restricted admission. It is striking that this kind of reference is m in 
spite of its importance m communicated only unofficially. Thus, 
they could also be called "crypto-references". How "top-secret" 
these crypto-references are becomes obvious if one takes into account 
that (at least in Germany) even students of law hardly ever learn 
anything about them. Therefore the techniques which keep law to- 
gether have to be learnt by non-conscious imitations. 
The second type of self-references, the pseudo-references, des- 
cribe juridical decision-making in a manner which is quite improper 
27 E.g., dance, gestures, models, numbers. 
28 Fundamental besides Nietzsche: Immanuel Kant and his concept of 
the "regulativen Prinzipien": Kritik der reinen Vernunfl (Stuttgart: Reclam, 
1966), 599, 673ff; Hans Vaihinger, Die Philosophie des Als Ob. System der 
theoretischen, praktischen und religi~sen Fiktionen der Menschheit auf 
Grund eines idealistischen Positivismus (Leipzig: Felix Meiner, 1924, 2 
Aufl.), 4, 14ff.; Ludwig Wittgenstein, Philosophische Untersuchungen, Nr. 
114f., in Werkausgabe, Bd.1 (Frankfurt: a.M.: Suhrkamp, 1970), 343; idem, 
~ber GewiJ~heit Werkausgabe, Bcl. 8 (Frankfurt a.M.: Suhrkamp, 1989), 10, 
33f., 94f. (Nr.7, 94ff., 357ff.). As to the actual discussion: Peter L. Berger, 
Thomas Luckmann, The Social Construction of Reality (New York: 
Doubleday, 1966); Stephan Wolff, Der rhetorische Charakter sozialer 
Ordnung (Berlin: Dunker & Humblot, 1976), 77ff.; Niklas Luhmann, 
Soziale Systeme, supra n.19, at 25, 51, 61, 63f., 79, 227ff.; Hans Blumenberg, 
"Anthropologische Ann/iherung an die Aktualit/it der Rhetorik", in: 
Wirklichkeiten, in denen wir leben (Stuttgart: Reclam, 1981), 104ff., 132ff. 
THE RHETORICAL CONSTRUCTION OF LAW 49 
from an operational point of view. They describe the making of a 
juridical decision differently from how it was really made. They do 
not describe the true genesis but give a creative, fictitious "pre- 
sentation of the genesis". These presentations have no operative 
function but only a rhetorical one. In cooperation with the invention 
of concepts and propositions they help to produce the fact that a 
juridical text reads as "prescriptive" by itself. As I showed on 
another occasion, 29 all jurists support their decisions with such 
pseudo-references to the genesis of the decision (etiology). While 
rhetorical figures attract the heart, these pseudo self-references 
attract the brain, referring to the dominant ideas of good and justice. 
Pseudo-references occur in various forms: they can be explicit or 
implicit, past-related or present-related. Moreover, they differ in 
theirinner form, i.e. in the contents of the story with which they 
describe the alleged genesis. In German juridical texts there would, 
at first sight, seem to be three types of genesis-descriptive stories: 
(1) A pre-rational etiology, which reduces the text to magic or 
other predominantly emotionally experienceable contexts 
(such as a divine dictate). 
(2) A rational etiology, which presents the juridical decision as 
a logical apperception of objective facts (e.g. via "recognition 
of facts" or "cognizance of the legal situation"). 
(3) A rational-reflexive etiology, which describes all legal pro- 
ceedings as expressions of the human will (e.g. "contract", 
"consensus of the majority"). 
The pre-rational presentations (1) activate some emotions 
which are, in evolutionary terms, old, and which organised the 
community at a time when there was no rhetorically elaborated ju- 
risprudence. Juridical texts preferring a rational etiology (2) appear 
to be matter-of-fact. They present their propositions as if the con- 
cepts used represented real things and as if the arrangement of con- 
cepts corresponded to the order of the real world. To use philosoph- 
ical categories: they assume that juridical propositions are held to 
have the character of ontological propositions. The rational- 
reflexive (3) presentations modify this statement in a way which 
takes into account the modern ideology of the individual and his 
29 K. Sobota, Sachlichkeit, Rhetorische Kunst der Juristen (Frankfurt 
a.M.: Peter I~ng, 1990). 
50 KATHARINA SOBOTA 
freedom of will. 
All these self-references are able to produce conceptions which 
have to be regarded as legends, myths or pseudo-problems. One can 
never produce the phenomenon Law by executing "divine dictate", 
one can never weave the web of Law by "application of norms" or 
"logical deduction". Even the concepts of "justification", "interpre- 
tation" or the "compulsion to establish norms" do not seem to be real 
constraints of Law-construction; 3° they are constraints only in the 
sense that they have to be part of a special occidental style of 
presenting legal decisions. 
5. Constraint of Reflexivity 
The different levels of action and self-references do not run 
separately, but interact. The self-referential representation of the 
"second level" are produced by the actions of the "first level" of in- 
vention, but at the same time they re-act upon this level prescrip- 
tively. Thereby the processes which brought them about are 
changed, too, so that reflected image and "reality" are able to adjust 
to each other more and more productively. When they are at their 
best (when corresponding specialisations have formed), the repre- 
sentations "fit" the actions, and the actions "fit" the representations, 
namely insofar as both impress the listener with an intensity suf- 
ficient to keep the system going and accepted. 
As the rhetoric of law works with self-references which are 
two-fold, 31 the reflexivity is two-fold, too. The "genuine", unofficial 
feedbacks might achieve the adjustment to "outer reality" ("norma- 
tive power of facts"32); the pseudo official ones help to shape the 
ideal forms of judicial self-presentation. If a judge chooses the style 
of rationality for example, the following will happen: as he wants 
his actions to be regarded as rational he has to hide his emotions. 
30 Twenty years ago, Ballweg formulated, besides the "compulsion to 
decide", a "compulsion to justify", "to interpret" and "to establish norms", 
Rechtswissenschafl und Jurisprudenz, supra n.11, at 108ff. 
31 A circumstance which is presumably also the case with moral and 
religion. 
32 Georg Jellinek,"Normative Kraft des Faktischen",Allgemeine 
Staatslehre, 3 Aufl. (Berlin: H/iring, 1914), 337ff. 
THE RHETORICAL CONSTRUCTION OF LAW 51 
The effect is often that he calms down through the coldness of his 
rhetoric and thereby his perspective of the matter becomes more 
unbiassed. It is not only possible to talk oneself into a fury, it is also 
possible to be infected by one's own pretended matter-of-factness. 
It is in this loop of attitude and behaviour that Aristotle sees 
the central condition of all ethics: "Thus we become just by acting 
justly". 33 Where this reflexivity no longer takes place, the traces of 
production and presentation diverge. Instead of becoming more and 
more universal, instead of weaving the whole world into a net, the 
two levels separate from each other, the web of inventions is carried 
away by the wind (Nietzsche). 34 
6. Constraint of Latency 
As already mentioned, the rhetoric of law presupposes the fact 
that a "second reality" is created by linguistic processes. In this 
invented universe of signs one has to pretend that 
there are prefabricated answers to all questions, 
the dogmas of ontology are true, 
the data constructing the juridical world are actually useful 
building-blocks, 
and finally the semiotic web of law is the "real world". 
If one is inclined to do so - facing these artif icialit ies- one 
might call the whole system of law a fiction, or even a permanent 
deception. 3s Yet if one takes into consideration the view that this 
"deception" is the basis of all cultivated forms of living together, 
and thereby forms the largest part of our human reality, it seems 
33 Aristoteles, Nicomachaen Ethics, II.1. 
34 Nietzsche, supra n.2, at 882. 
35 Nietzsche, ibid.~ passim, Vaihinger, supra n.28~ Walter Strauch, Die 
Philosophie des "Als-Ob" und die haupts~chlichsten Probleme der 
Rechtswissenschafl (Mfinchen: R6sl & Cie, 1923). 
52 KATHARINA SOBOTA 
more appropriate to name it a "constructive achievement. "36 Also, 
the term "deception" neglects the circumstance that the "web of law" 
is able, in a very effective manner, to deprive those who are caught 
in it of liberty and life. Although we should take care not to estab- 
lish a sharp contrast between "reality" and "fiction", we cannot re- 
frain from pointing out the complex two-foldness without which the 
phenomenon Law cannot be constructed. As long as it is supposed to 
function in its traditional form, it is forced to hide the mechanisms 
of its actual production. Anyone who argues in the context of actual 
judicial decision-making that there are no '~things" in the 
ontological sense, that it is impossible to transfer something infinite 
into something finite, that Law is an invented semiotic system, will 
be ridiculed at first; in the long run, however, he will destroy the 
bases of Law. In this respect the art of weaving demands that the 
constructional processes should remain unknown to the public. Quite 
contrary to what nearly all theorists of Law and argumentation 
demand: latency is a prerequisite of Law in its present form. Whe- 
ther we want to accept a legal system which follows this prere- 
quisite is another question. 
7. Constraint of Appropriateness 
All the above "constraints" are of a formal nature. They require 
that certain rhetorical forms are observed; the contents, which m in 
accordance with the constraint of invent ion - have to be evoked, 
are arbitrary. 
The constraint of appropriateness, too, describes a formal con- 
dition: judicial speech has to be formed in a way, so that it may be 
accepted as appropriate by the audience. If this is not the case, the 
speaker cannot persuade; persuasion, however, is the all-embracing 
basic condition of the construction of rhetorical success. As we know 
from Aristotle, restrictions concerning content are introduced via the 
formal criterion of what is appropriate (gr. pr~pon, lat.: decorum, 
aptum): the speaker has to find those words which render him 
credible in the perspective of the audience. One who claims to be a 
36 If I am not mistaken it was Peter Goodrich who pointed out this aspect 
at the 1990 conference of theInternational Association for the Semiotics of 
Law in O~ati. 
THE RHETORICAL CONSTRUCTION OF LAW 53 
"farmer" must have a vocabulary different from an "intellectual. "37 
The same applies to the judge who- in order to give his decision 
more we ight - presents himself as independent: ~ he has to speak in 
a way the audience believes an independent judge should speak. 
Secondly, his way of expressing himself has to stand in an ap- 
propriate relation to the matter in question. 39 What this right re- 
lation is must be found out by considering the assessments of the 
audience. It is their view one has to take if one wants to know what 
is "the matter", how is it to be evaluated (e.g. trifle or tragic), and 
what propositions, in what tone, seem apt? In this way, the speaker 
has to take into account the moods and inclinations of his actual 
audience, its time, and its culture. If he wants to be successful, 
neither the style nor the content of his speech can be arbitrary. The 
tone in which he speaks, the way he arranges his thoughts, and also 
the solution-alternatives and the premises he may employ as topoi 
are all limited as to the situation. Yet the final tenor of his speech 
(guilty or not guilty?) is not restricted. There are results, however, 
which are excluded within the frame of a continually developing 
system (e.g. capital punishment or a value judgement based on 
aesthetics). 4° 
This correlation between rhetorical constraints, style, and 
content of speech leads to a result appropriate to the situation. 
Normal ly, the speaker's "will to persuade" means nothing other 
than that his speech was justifiable in the face of the respective 
body (judges, jury, public) who had to make the decision. These 
bodies, too, are put together, presupposing democratic conditions 41 in 
procedures which are subject to the constraints here discussed. In 
this way the reflexive integration of the system of law within the 
net of other social systems becomes effective: the feeling of what is 
appropriate is influenced not only by the mood of the judges, but also 
37 Aristotles, Ars Rhetoric.a, III.7.7. 
38 The speaker's "character" is one of the three means of persuasion: 
ibid., 1.2.4. 
39 Ibid., III.7.1. 
40 Jackson, supra n.1, at 28f. 
41 As to the connection between rhetoric and democracy, see O. Ballweg, 
"Rhetorik und Vertrauen', in Denninger et al. (eds.), Kritik und Vertrauen, 
Festschrifl Peter Schneider (Frankfurt/M: Anton Hain, 1990), 34-44. 
54 KATHARINA SOBOTA 
by the political and economic conditions. Thus rhetoric, if it is 
institutionalized in a living democracy, aims at an internal balance 
in a culture which is experienced as justice. This justice need not nec- 
essarily comply with the average state of opinion of all participat- 
ing audiences, and become the juridical variety of social con- 
formism. 42 Quite to the contrary, there is a possibility that - - as a 
consequence of the reflexivity of all successful presentat ions- the 
feeling for justice of the majority may become influenced by the 
refinement of a special rhetoric of law. Rhetoric is not only the 
techne teaching how to persuade for a mere moment, but also the art 
which erects a lasting construction of cobwebs on the "flowing water" 
of human existence- a second world of webs which is both "tender 
enough to be carried on by the waves", and "firm enough not to be torn 
by the wind. "43 
42 As to this problem: Jackson, supra n.1, at 189, 193. 
43 Nietzsche, supra n.2, at 882.