Perelman's Theory of Argumentation and Natural Law

Chaïm Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman's argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled "Perelman's Theory of Argumentation as a Rejection of Natural Law."

However, my thesis is precisely that Perelman's theory of argumentation connects to the natural law tradition in interesting and productive ways. Perelman referred to natural law in a number of his essays as an example of the excessively rational focus that he sought to correct with his theory of argumentation, but he also noted the power of natural law claims in legal argumentation. To my knowledge, he never offered a detailed account of the connections between his theory of argumentation and natural law. However, Perelman's deep and abiding concern with justice suggests that he could not help but be interested in lines of argumentation that challenge positive laws from some other standpoint—that, in some manner, he must embrace some elements of the natural law tradition.

I wish to outline the ways that a natural law account can fit with Perelman's theory of argumentation in order to address an ontological crisis that grips contemporary legal theory. Steven Smith (2004) has persuasively described "law's quandary" now that legal practice purports to be divorced from the natural law contexts in which it developed. Smith provocatively contends that there is "at least a strong prima facie case that modern legal discourse is operating in a sort of 'ontological gap' that divides our explicit or owned ontological commitments (which preclude us from recognizing the reality of 'the law' [that stands distinct from empirical legal practices]) from the ontological assumptions not only implicit in but essential to our discourse and practice (which seem to presuppose the reality of 'the law')" (1994, 63).¹ In a similar vein, Peter Goodrich describes the plight of contemporary legal theory with concise accuracy, observing that we have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure (1996, 160–61).

I contend that by working through a conception of natural law that fits with Perelman's philosophy of argumentation we can find a promising way to address law's ontological crisis. The philosophy of the new rhetoric is a rich resource for describing the ontological space in which law operates and also for providing normative guidance to those engaged in legal practice.

The Natural Law Tradition

The term "natural law" generally calls to mind a philosophical account that bloomed in ancient Rome, was absorbed into the Christian tradition, reached full expression in Aquinas, and then was secularized and rationalized as a philosophy of natural rights. Cicero offered a succinct definition of pre-Christian natural law based on the Stoic tradition, arguing that natural law is universal, eternal, and unchanging and that these characteristics of reality follow from the fact that natural law is authored and administered by a deity.

True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting. … [W]e need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.

(1928, 3.22.33)

Cicero's account was easily accommodated to Christian principles that were embraced and propagated by the Roman Empire. Centuries later, Aquinas differentiated eternal law, natural law and...