Rhetoric and Dialectic: Some Historical and Legal Perspectives

HANNS HOHMANN

Department of Communication StudiesSan José State University1 Washington SquareSan José, CA 95192-0112, U.S.A.

ABSTRACT: The thesis is defended that rhetoric is not, as is often said, a discipline whichis hierarchically subordinate to dialectic. It is argued that the modalities of the links betweenrhetoric and dialectic must be seen in a somewhat different light: rhetoric and dialectic shouldbe viewed as two complementary disciplines. On the basis of a historical survey of theviews of various authors on the links between rhetoric and dialectic, it is concluded thatefforts to establish clear boundaries or unequivocal conceptual or moral hierarchical rela-tionships between the two disciplines have failed and that therefore, they must be conceivedas being mutually dependent.

KEY WORDS: dialectic, legal argumentation, legal reasoning, persuasion, rhetoric, rhetor-ical demonstration

1

The trouble started when the names were assigned. In the first chapter ofhis Rhetoric, Aristotle put the matter succinctly: while the term ‘dialecti-cian’ refers generally to a person possessing argumentative capabilities,there is a special term ‘sophist’ for someone who uses theses capabilitiesto mislead by means of specious arguments; by contrast, the term ‘rhetor’marks both the general category of people with an aptitude for persuasivespeaking as well as those among them who misuse this aptitude to deceivetheir audiences (Aristotle, Rhetoric 1.1.14 [1355b]).

Ever since this initial terminological bifurcation, or perhaps even pre-ceding and helping to explain it, there has been a tendency to emphasizesomewhat one-sidedly the negative potentials of rhetoric and the positiveaspects of dialectic. The upshot of this is to conceive of dialectic as a ratherpure and theoretically sound method aimed at a cooperative search forcognitive truth, and of rhetoric as a seriously tainted and practically com-promised knack serving a competitive quest for persuasive success.

And even when it is conceded that rhetoric at least can be theoreticallysound and used for good, it is often assigned an auxiliary role as a kind ofhandmaiden of dialectic. The model for this intellectual class structure readinto the field of argumentation is outlined in Plato’s Phaedrus: dialectic,understood as a somewhat esoteric process of real definition proceeding by

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collection and division, uncovers the truth, which is then exotericallyimparted by means of a rhetoric which ‘gives the soul the desired beliefand virtue’ (Plato, Phaedrus 265 D ff., 270 B).

I think that some traces of these tendencies can also be found in recentwork by two of our kind hosts for this colloquium, work in which theyenlarge the scope of their pragma-dialectical analysis to encompass rhetor-ical dimensions of the argumentative process. In a paper (van Eemerenand Houtlosser, 1998) presented at last year’s ISSA Conference here inAmsterdam, Frans van Eemeren and Peter Houtlosser resist the tempta-tion to construct a neat dichotomy between rhetoric and dialectic, as wefind it posited for instance by Trudy Govier, who describes rhetoric as anapproach to argumentation in which we ‘argue to win our case,’ while indialectic we ‘argue in search of the truth;’ (Govier, 1997, p. 73) or evenby Chaïm Perelman and Lucie Olbrechts-Tyteca, who contrast, though withsome caveats, a concept of discussion, ‘considered as a sincere quest forthe truth,’ with a concept of debate, whose ‘protagonists [. . .] are chieflyconcerned with the triumph of their own viewpoint’ (Perelman andOlbrechts-Tyteca, 1969, p. 38).

By contrast, van Eemeren and Houtlosser reject ‘the sharp and infertileideological division between rhetoric and dialectic,’ and strongly insist onboth the theoretical connection between both, and on the way in which theyare linked in actual argumentative discourse (van Eemeren and Houtlosser,1998, pp. 6. 4 ff.). But they still associate dialectic, as a method of criticaldiscussion, with the objective of resolving differences of opinion, in searchof a standpoint that is defensible against doubt or criticism; and they linkrhetoric, as a method of strategic manoeuvering, with the objective ofhaving one’s own position accepted, aiming at successful persuasion (vanEemeren and Houtlosser, 1998, pp. 1 ff.) And they also propose to subor-dinate rhetoric to dialectic in their model, positing that ‘rhetorical movesare to be viewed as operating within a dialectical framework’ (van Eemerenand Houtlosser, 1998, pp. 4, 13 [n. 23]).

In my remarks today I would like to examine these characterizationsof the relationship between rhetoric and dialectic in connection with anecessarily very cursory survey of some historical moments in the evolvinginteractions between these two perspectives on argumentation, paying par-ticular attention to the way these interactions have played themselves outin the analysis of legal argumentation.1 This survey will offer strong supportfor van Eemeren and Houtlosser’s insistence on the theoretical and prac-tical links between the two disciplines, but I think this look back will alsosuggest that we should perhaps see the modalities of these links in asomewhat different light.

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2

The first way station in my survey will offer a brief look at some ofAristotle’s characterizations of the relationships between rhetoric anddialectic. To begin with, I would like to point out that in contrast to theidealization of dialectic as a tool for philosophical truth-seeking that wefind in Plato’s sketchy program for such a method, the more fully worked-out dialectic that we encounter in Aristotle’s Topica is a much more ambiva-lent pursuit. In fact the work does not only lay down elaborate ground rulesfor the dialectical question-and-answer game, but is also very much ahandbook proposing to teach a method for winning such disputes. This aimis particularly apparent in Book VIII, where Aristotle gives much adviceon how to conceal one’s argumentative goals in order to extract from one’sopponent assent to premises and concessions needed to ground one’ssuccessful argument. He does indeed also criticize as ‘not a seemly pro-ceeding’ a certain ‘debased kind of discussion,’ but the starting point forthis warning is the observation that ‘with a man who tries every means toseem to avoid defeat you are justified in using every means to obtain yourconclusion’ (Aristotle, Topica 8.14 [164b]).

Concomitantly, Aristotle does indeed throughout his Rhetoric offer muchguidance on how to win one’s case in a court of law or how to persuadeone’s audience in a civic deliberative assembly or ceremonial gathering.But he emphasizes that the ‘function [of rhetoric as a discipline] is not topersuade but to see the available means of persuasion in each case, as isalso the case in all the other arts’ (Aristotle, Rhetoric 1.1.14 [1355b]).And furthermore he warns his own audience against an exclusive focus onwinning: he emphasizes that ‘one should be able to argue persuasively oneither side of a question, just as in the use of the syllogism [i.e., as indialectic], not that we may actually do both (for one should not persuadewhat is debased), but in order that it may not escape our notice what thereal state of the case is and that we ourselves may be able to refute ifanother person uses speech unjustly’ (Aristotle, Rhetoric 1.1.12 [1355a]).

Aristotle’s characterization of rhetoric as an antistrophos to dialectic isnotoriously difficult to interpret (Green, 1990, pp. 5 ff.). But on the whole,he appears to envision a coordinate relationship here, emphasizing theparallels between the two fields: ‘dialectic and rhetoric [. . .] are equallyconcerned with opposites’ (Aristotle, Rhetoric 1.1.12 [1355a]); ‘both areconcerned with such things as are, to a certain extent, within the knowl-edge of all people and belong to no separately defined science. A result isthat all people, in some way, share in both; for all, to some extent, tryboth to test and to maintain an argument and to defend themselves andattack’ (Aristotle, Rhetoric 1.1.1 [1354a]). In his translation of the Rhetoric,George Kennedy parenthetically links the phrase ‘to test and maintain anargument’ with dialectic, and the phrase ‘to defend themselves and attack’with rhetoric (Kennedy, 1991, p. 29); but I think that such unequivocal

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references cannot be maintained, since in the Topica, dialectic is likewiseassociated with attack and defense, and Aristotle’s moral strictures aboutthe use of rhetoric also show a concern for testing arguments in the interestof ascertaining ‘what the real state of the case is.’

An argument could be made on the basis of Aristotle’s observation thatrhetorical demonstration (apodeixis) proceeds by means of the enthymeme,that ‘the enthymeme is a kind of syllogism,’ and that furthermore ‘it is thefunction of dialectic, either as a whole or one of its parts, to see about everysyllogism equally’ (Aristotle, Rhetoric 1.1.11 [1355a]), that he sees rhetoric,at least insofar as it deals with enthymematic arguments, as a part of, andthus as theoretically subordinated to dialectic, which deals with all syllo-gisms, including the rhetorical syllogism of the enthymeme. But then againin the Topica, dialectic is identified as relying on premises that are ‘acceptedopinions’ (endoxa), which are further defined as ‘those that commend them-selves to all or the majority of the wise – that is, to all of the wise or tothe majority or to the most famous and distinguished of them’ (Aristotle,Topica 1.1 [100b]).2 And this characterization of the basis of dialecticalarguments lends itself in turn to the contention that in this respect dialecticis a special case of, and insofar conceptually subordinated to rhetoric, sincerhetoric deals generally with arguments based on premises acceptable towhatever audience is at hand, while dialectic relies particularly on premisesacceptable to a special limited kind of audience.

3

Not surprisingly, Cicero as the most famous rhetor of antiquity tends totreat dialectic in both his philosophical and rhetorical writings as a toolfor the rhetorician; as a tool that is certainly important, but whose impor-tance is nevertheless limited. For one thing, in his Topica he identifiesdialectic (dialektike) as being exclusively concerned with the judgment ofthe validity of arguments, treating topics (topike), the art of inventing argu-ments that in his view ‘is both more useful and certainly prior in the orderof nature,’ as a coordinated second branch of the systematic study of argu-mentation, rather than as a part of dialectic as well as of rhetoric (Cicero,Topica 6). By contrast, the latter approach, treating topics as part of dialecticas well as of rhetoric, had been Aristotle’s, who provided partially over-lapping catalogues of dialectical and rhetorical topics in the Topica and inthe Rhetoric respectively (Aristotle, Topica 2–7 [108b ff.]; and Aristotle,Rhetoric 2.23 [1397a ff.]). That Cicero’s instrumental view of dialectic wasnot a mere personal idiosyncracy is shown by the fact that in Roman edu-cation dialectic was treated as a propaedeutic subject, following the basicstudy of grammar in the trivium, but followed by the more advanced pursuitof rhetorical training. This instrumental view does, however, not entirelypreclude considerable respect for dialectic, which is expressed in Cicero’s

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observation in his De finibus, a slightly earlier work than the Topica, thatdialectic ‘encompasses at once the entire science of discerning the essenceof a thing, and of judging the qualities of a thing, by means of rationalargument and disputation’ (dialecticam [. . .] quae una continet omnem etperspiciendi quid in quaque re sit scientiam et iudicandi quale quidque sitet ratione ac via disputandi) (Cicero, De finibus 2.18).3 The same passagealso includes a reference to the differentiation between rhetoric and dialecticproposed by Zeno the Stoic, much quoted throughout succeeding centuriesas well, ‘that rhetoric was like the palm of the hand, dialectic like the closedfist; because rhetoricians employ an expansive style, and dialecticians onethat is more compressed.’ However, it should be noted that Cicero does notendorse Zeno’s view that continuous discourse in a more expansive veinis not appropriate for philosophers, but rather proposes to employ for philo-sophical inquiry a rhetoric more subtle than that used in the law-courts(Cicero, De finibus 2.17). And furthermore it should not be overlooked thata compressed dialectical style may well be deployed rhetorically topersuade certain audiences by its authoritative logical impressiveness.

Cicero used a somewhat dialectical approach to the systematic analysisof legal argumentation in his Topica, aiming at ordering patterns of juristicreasoning according to a more concise and general set of formal categories,rather than the more substantively oriented topics found in the frameworkof the rhetorical status system. On the whole, however, the orientation ofthis book is rhetorical, a fact later emphasized by Boethius, who pointedout that Cicero was not interested in the logical properties of the dialec-tical topics (such as genus and species, similarity and dissimilarity), but inthe application of these topics in the search for arguments to be used indiscussing legal problems and individual cases (Stump, 1978, p. 95).

4

This observation points to Boethius’ own proposal for differentiatingdialectic and rhetoric in his work De differentiis topicis. In Book IV hedistinguishes the two fields according to their different matter (materia),use (usus), and end (finis). He contends that the matter of dialectic aretheses, i.e. general questions not involving particular circumstances, whilerhetoric deals with hypotheses, i.e. questions that do involve such indi-vidualizing circumstances, and that call for discussions of general issuesonly incidentally to the resolution of particular problem cases. The dis-tinction according to use focuses on the different types of discourse preva-lent in the two disciplines: question and answer in dialectic and continuousdiscourse in rhetoric. And he sees the different ends in dialectic’s wrestingfrom an adversary what it wants, and in rhetoric’s persuading a judge otherthan the adversary (Stump, 1978, p. 79 f.).

It may be observed that this definition of dialectic would limit its matter

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to philosophical issues and would deny the label ‘dialectical’ to the myriadpractically-oriented disputes that are a major focus of pragma-dialecticalanalysis. It would also exclude, according to the criterion of use, from therealm of dialectic a text such as William the Silent’s Apologia, a longunbroken discourse with which van Eemeren and Houtlosser illustratedthe incorporation of rhetorical considerations into the pragma-dialecticalframework (van Eemeren and Houtlosser, 1998b). And the criterion of endas formulated by Boethius ascribes competitive rather than cooperativepurposes to both rhetoric and dialectic, since victory over the opponent isseen as the aim in both fields.

Boethius does reverse Cicero’s preferential hierarchy very decisively andunequivocally claims theoretical primacy for dialectic over rhetoric. But asI have pointed out elsewhere, his argument for this contention is highlyproblematic. He claims this primacy by pointing out that ‘the rhetoricianalways proceeds from dialectical topics, but the dialectician can be contentwith his own topics’ (Stump, 1978, p. 79 f.). In other words, the rhetoricaltopics are merely particular applications of the more general patternsrepresented by the dialectical topics, and thus conceptually subordinated tothe latter. But when Boethius claims further that the rhetorical topics derivetheir persuasiveness from the dialectical ones, I think he clearly overstateshis case. The persuasiveness, if any, of the use of a general topic such as‘where the genus is absent, the species must also be absent’ in order torefute the charge that someone was drunk by arguing that he had neverbefore been dissipated, would come not from the logical relationshipbetween genus and species expressed in the dialectical topical maxim, butfrom the empirical belief, presumably based on inductive observation, thatdrunkenness only occurs if their have been prior instances of other formsof dissipation. Such appeals to common experience and probabilities,however, are the stock-in-trade of the rhetorician rather than the dialecti-cian (Hohmann, 1998a, pp. 45 ff.).

5

Boethius was instrumental in reviving the study of dialectic and logic, andthe heightened prestige which this study gained in subsequent centurieswas indicated by the fact that in the Middle Ages, rhetoric moved intosecond place in the trivium after grammar, vacating the third and final stagein these studies to a logically-oriented dialectic of increasing complexity.At the same time, investigations of legal argumentation took on an increas-ingly dialectical cast in their choice of conceptual frameworks. This trendbecomes quite pronounced from the thirteenth century on in a group ofworks that we may refer to collectively as the Modi arguendi in iure(Caprioli, 1963, 1965); they compile legal arguments from the sources ofRoman law that had become the subject of intense study again since the

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turn from the eleventh to the twelfth century, and they arrange them incategories that are primarily derived from dialectical topics as they hadbeen transmitted to the Middle Ages especially by Boethius’ De differen-tiis topicis. Thus many of these categories refer to formal relationshipsbetween propositions in an argument, such as e contrario, a simili, or afortiori; but we also find more substantive terms such as ad inconvenienssive absurdum that explicitly point to the value judgments underlying thelogical operations of legal argumentation. Even more important for ourdiscussion at this colloquium is the fact that the declared aim of such worksis to help the advocate win his case; by offering advice on how to argueon both sides of any given legal issue, they facilitate conflict at least asmuch as they help to resolve legal disputes, further confirming the ethicalambivalence of dialectic as well as rhetoric (Hohmann, 1998a, pp. 47 ff.).

6

The tendency to present the functional equivalents of ancient rhetoricaltreatments of legal argumentation in utramque partem in works of aconceptually dialectical cast continues in the Renaissance, where suchbooks also begin to take on titles referring to dialectic (Gambari, 1507;Hegendorff, 1547; Vigelius, 1573). One author who explicitly addressesthe relationship between dialectic and rhetoric in the context of legal argu-mentation is Christoph Hegendorff, who published both a Dialectica legalis(1534) and a Rhetorica legalis (1541); on the whole he emphasizes the linksrather than the differences between the two fields.

In the earlier book, he characterizes dialectic by its reliance on terse for-mulations in dealing with its subjects, while rhetoric is seen as also a kindof dialectic, but one that varies the naked surface of its dialectical materialby means of varied patterns of words and things. However, he emphasizesthat this is by no means a matter of vain display, but of presenting mattersin an more popular and clearer style, to make them accessible to a broaderpublic. Ultimately he echoes Cicero’s echo of Zeno in calling dialectic aconcentrated and as it were tightened eloquence (contracta et quasiadstricta eloquentia), and rhetoric an expanded dialectic (dilatata dialec-tica) (Hegendorff, 1547, p. 8r).

In the later work, he elaborates this further by pointing out that dialecticteaches us how to discuss any matter according to a certain order and securemethod (ordine quodam et certa methodo), while rhetoric also provideslinguistic ornamentation and highlights of words and things (ornamentaorationis at lumina verborum et rerum), by means of which naked facts(res nudae) are decorated as well as clarified (et exornari et illustrari)(Hegendorff, 1541, p. 4r). That this distinction is not meant to reducerhetoric to considerations of style rather than substance, in the later Ramistmanner, is shown by the fact that Hegendorff includes a full treatment of

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legal argumentation in his Rhetorica legalis as well as in his Dialecticalegalis. What rhetoric adds to dialectic in his view is a concern for prag-matic effectiveness, but rhetoric is not limited to that concern. The differ-ence between the two fields here appears to be rather one of differentaudiences: rhetoric deals with discourses addressed to a broader public,while dialectic focuses on the more limited sphere of expert discussions.

7

But later works on legal argumentation initially tended to move away fromboth rhetoric and dialectic, since the emphasis of both on controversialdiscussions of subjects not lending themselves to demonstrable certaintieswas at odds with growing political concerns about the effective control ofdiscretion of judges by legislation (Hohmann, 1998b). These concernsexpressed themselves in efforts to codify the law ever more comprehen-sively, and they provided an increasingly urgent impetus to characterizethe foundation of legal reasoning in terms of accurately interpreting thesovereign will as expressed in such codifications. Earlier works on legalinterpretation, such as Stephanus de Federicis’ De interpretatione legum(1495), had freely acknowledged their indebtedness to rhetorical theory,especially to the ancient status legales. These sources are still in evidencein seventeenth-century works discussing legal interpretation, such as inHugo Grotius’ De iure belli ac pacis (1625, revised 1631), and even morecopiously in Samuel Pufendorf ’s De iure naturae et gentium (1672), butthese authors purport to replace the rhetorical quest for conflicting argu-ments that can serve opposing advocates with a secure method for findingthe uniquely correct interpretation of legal norms. To that end, they developa hierarchy of interpretive methods that arranges the possible interpretiveapproaches in a sequence, such that one is permitted to move to thenext level of interpretation only if no clear result has been obtained on thepreceding level. However, it soon becomes apparent that what matters isnot only whether the result is clear, but even more so whether it is satis-factory from a normative perspective indicated by concepts such as ‘equity’(equitas) and ‘natural reason’ (ratio naturalis) (Grotius, 1853, pp. 174 ff.).Such concepts are clearly not amenable to unequivocal application, butthe subversive implications of this fact for the project of determining apostulated singular ‘genuine meaning’ (genuinus sensus) for any legal norm(Pufendorf, 1759, p. 809) is not acknowledged in these and later efforts tomove towards a ‘science of interpretation’. And in the course of the eigh-teenth and nineteenth centuries, the links of legal argumentation with bothrhetoric and dialectic are in theory ever more pushed into the backgroundin favor of a focus on hermeneutics that ever renews the ever unfulfilledpromise of replacing the clash of opposing legal arguments in controver-sial discussions with solitary scientific determinations of legal meanings.

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Somewhat paradoxically, the concern for the political legitimacy ofadjudication thus promotes for highly rhetorical reasons a denial of therhetoricity of legal argumentation, and for the same reasons dialectic ismade to deny its dialogical and probabilistic origins in favor of a mono-logical conception of logic emphasizing certainty. That legal practiceremains somewhat unaffected by such theoretical trends is shown by recur-ring scholarly complaints about the ‘arbitrary’ use that practitioners makeof the instrumentarium of legal hermeneutics (Thibaut, 1806, p. 28; Lang,1857, p. XI f.).

8

In our own now ending century, the affinities of argumentation in generaland legal argumentation in particular with dialectic and rhetoric have againbeen increasingly acknowledged in theoretical treatments of the subjectas well. What has not emerged from these discussions, however, is anunequivocal definition of the characteristics of and relationships betweenlegal rhetoric and legal dialectic. Thus we find works such as those ofTheodor Viehweg and Chaïm Perelman that declare their commitment toa rhetorical perspective, but share with the logically-oriented dialecticaltradition a strong focus on philosophical and analytical interests (Viehweg,1974; Perelman, 1979; see also Ballweg and Seibert, 1982). When it comesto books with a more pedagogical and practical orientation that is more inline with the mainstream of the rhetorical handbook tradition, it may benoted that somewhat ironically it is Wolfgang Gast’s Juristische Rhetorikthat emphasizes the role of rhetoric in reaching consensus (Gast, 1992,p. 1), paralleling the cooperation-minded concerns of pragma-dialectics,while it is Edward Ott in his Juristische Dialektik who promises his readersin his subtitle ‘fifty dialectical ways of arguing and devices for winninglegal disputes’, echoing the promises of sophistic rhetoric (Ott, 1995).

At the same time, Ott insists on differentiating such success-oriented tricks from a postulated ‘systematic methodology’ (systematischeMethodenlehre) of law which alone and in contradistinction to legal rhetoricis supposed to constitute a scientific perspective aimed at objective truth’(Ott, 1995, pp. 22, 27). On a more sophisticated level, such long-standingworries about the perceived tension between rhetoric and truth have foundexpression in concerns about the legitimation deficit of legal rhetoric, itsfailure to provide any guarantee of the validity of discussion outcomesbeyond the mere fact of acceptance. Thus Gerhard Otte has called for anargumentation theory that is ‘somehow comparable to the rules of thedialectical practice dispute’ (Otte, 1970, p. 190 f.) and Robert Alexy hastried to develop a theory of legal argumentation that specifies in a set ofrules the requirements and conditions of a discussion capable of legiti-mating the results of that discussion (Alexy, 1996). But of course such

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dialectical rules can only shift the focus of controversial discussionsinvoking rhetorical topoi, rather than replacing them.

Legal controversies arise precisely because rules are perceived asunclear, and it is thus inherently improbable that such difficulties could beresolved by referring the disputants to yet another set of rules. Norms suchas ‘no speaker may contradict himself ’ or ‘each speaker may assert onlywhat he himself believes’ (Alexy, 1996, p. 234) appear to be clear on thesurface, but they are likely to engender great difficulties in application.These difficulties can only be addressed by topically informed argumentsabout the question what constitutes a credible and acceptable differentia-tion between apparently contradictory assertions, or the question whichcircumstances support with sufficient probability the contention thatsomeone does or does not believe an assertion he or she has made. Thusconcepts such as ‘self-contradiction’ or ‘truthfulness’ point to rhetoricalcontroversies rather than leading away from them to a firm ground ofscientifically determinable and applicable rules of rational consensus.

While an interest in rules of discussion is also characteristic of thepragma-dialectical approach, securing presumptively correct and thusreliably legitimating discussion outcomes is apparently not the dominantmotivation behind pragma-dialectical analyses of argumentation. This isshown also and in particular by the work on legal argumentation under-taken by representatives of this approach, such as by Eveline Feteris inher recent book on Fundamentals of Legal Argumentation. There we findthat the soundness of a discussion aimed at the resolution of a legal disputeis not specifically associated with the claim that the outcome of the disputewill constitute a uniquely correct legal result (Feteris, 1999, pp. 163 ff.).Nevertheless it cannot be overlooked that Feteris, while less anxious thanAlexy to dissociate herself from rhetorical approaches to legal argumen-tation, still criticizes them for their lack of standards for the evaluation ofthe soundness of legal arguments, standards which the pragma-dialecticalapproach sets out to supply (Feteris, 1999, p. 61). She thus presents pragma-dialectic as an ultimately more appropriate approach to the analysis of legalargumentation than that provided by topical-rhetorical theories (Feteris,1999, p. 192).

9

Here it may be helpful to remind ourselves briefly that Boethius’ ground-breaking analysis of the foundations of dialectic clearly assigned practicalargumentation in general and legal argumentation in particular to the fieldof rhetoric, and also denied that dialectical argumentation could lay claimto certainty, a point on which he agreed with Aristotle (Hohmann, 1998a,p. 43 f.). Any evaluation of arguments to be provided on the basis of dialec-tical rules will not be able to escape this limitation. The consideration of

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such rules may point beyond rhetorical considerations, but as I have arguedabove, ultimately the very application of such rules will require discussionsleading us back onto rhetorical grounds. I think that remaining vestiges ofa thinking that tries to demarcate rhetorical and dialectical considerationsin terms of territorial claims could be eliminated even more decisively bytreating dialectical and rhetorical aspects of argumentation analysis ascomplementary rather than asserting primacy of one over the other. Suchcomplementarity appears to me to be borne out by the failure of efforts toestablish either clear boundaries or unequivocal conceptual or moral hier-archical relationships between rhetoric and dialectic. I hope to have shownin my brief survey that such efforts repeatedly eventuated in paradoxicalimpasse rather than promoting enlightening analysis.

Returning to the beginning of this sketch we can observe that the mutualdependence of dialectic and rhetoric on each other is shown nowhere moreclearly than in Aristotle’s pioneering analysis of the rhetorical foundationof dialectical reasoning in the audience acceptance of its premises, andof the dialectical justification of rhetoric by the corrective interplay ofopposing viewpoints. It is surely no accident that the faith in the criticalworkings of this argumentative interplay also lies at the root of our confi-dence, however circumscribed, in the proper working of the legal adver-sarial system, and that legal argumentation perhaps more clearly than otherforms of reasoning highlights the need to link dialectical soundness andrhetorical acceptability in the analysis and design of good arguments.4

NOTES

1 For a broad overview of the historical development of legal rhetoric see Hohmann, 1998c.2 E. S. Forster translates endoxa as ‘generally accepted opinions,’ but I think that in viewof Aristotle’s subsequent definition of the term, this translation is potentially misleading,since the point of the definition is to insist on the special qualifications of a necessarilylimited rather than general audience.3 My translation.4 It may be an encouraging sign when C. L. Hamblin, an author strongly associated witha dialectical perspective on argumentation, acknowledges that a strict differentiation betweencriterial validity and audience acceptance cannot successfully be maintained (Hamblin, 1970,pp. 242 ff.).

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