Perelman's Theory of Argumentation and Natural Law

Posted on SSRN by Francis Joseph Mootz III, William S. Boyd School of Law, UNLV

His abstract, quoted:
Abstract:
Chaim Perelman and Lucie Olbrechts-Tyteca published "The New Rhetoric" fifty years ago, renewing interest in the rhetorical tradition and generating a diverse body of scholarship. This article draws from a plenary talk delivered at the international conference, "The Promise of Reason," held at the University of Oregon to mark the publication anniversary. I argue that Perelman's insistence on the absence of certainties and the need for argumentation in matters relating to law and justice has interesting, even if surprising, connections to the natural law tradition. I contend that there are at least three points of convergence: (1) natural law claims are important, and perhaps unavoidable, commonplaces in legal practice; (2) natural law claims can be viewed as invoking Perelman's famous, and often misunderstood, idea of a universal audience; and (3) the natural law tradition can be reconceived by "naturalizing rhetoric," by which I mean recognizing that human nature is rhetorical. A naturalized rhetoric embraces the paradox that non-essentialism is essential to our being, and that we can find a foundation for reflection in anti-foundationalism. I conclude that Perelman's theory of argumentation provides a way to resuscitate natural law theorizing while moving beyond the false certainties that Perelman understood only impede our quest for justice.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266139