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Legal semiotics and types of arguments in human rights cases in Russia
Legal theory suggests a variety of approaches to investigation of interpretative techniques and types of arguments used by judges in the process of decision-making. Legal academics are analyzing mountains of cases in trying to identify the argumentative strategies that would enable to evaluate the judicial reasoning in terms of validity, reasonableness, correctness, predictability and compliance with the rule-of-law principle, while legal practitioners are looking for the answers how the arguments and counter-arguments can be found, how the courts would assess their strength or weakness and how the judicial choice would be finally made. The methodology of research, consequently, depends on the primary task, which one seeks to accomplish: to find an “objective” meaning of a legal rule, or to interpret a rule in the interests of a client, or to comprehend the process of legal reasoning as such, or to single out the types of arguments most suitable for certain types of cases, or to investigate the use of arguments for justification of the decision made on grounds other than the legal ones.
The classical theoretical approach, associated most frequently with Savigny, concentrates primarily on grammatical, logical, historical and systematic canons of interpretation, which are employed to find the ‘right’ or ‘objective’ meaning of a legal rule, while rhetoricians and semioticians put the process of interpretation into pragmatic context and investigate how the language of statutes is adjusted through a set of interpretations and reinterpretations to practical needs in a given historical moment. For them, the interpretation of legal rules turns into a search for arguments in favour or against the most desirable outcome of a legal dispute. From this viewpoint, interpretation and argumentation are considered as two sides of a coin: a legal argument may be employed for manipulative and instrumental purposes to support the interpretation which better fits the intention of a judge to adjudicate a case in a certain manner.
As distinct from the approaches based on logics and legal dogmatics, which concentrate on the mechanics of subsumption, that is on the process of application of a norm to a fact, which leads to the only right solution, the semiotic approach deals with the multiplicity of possible outcomes and also with “the choice between two definitions of an ambiguous rule, or between two possible solutions to a gap between rules, or between two conflicting rules.” It closely correlates with the topical approach which takes its origins in ancient rhetoric and consists in finding the variety of arguments pro and contra in search for the best solution of a legal problem. Though Theodor Viehweg stresses that the aim of topical approach is to invent the arguments based on the premises that would be shared by disputing parties as generally accepted, relevant, permissible, and defensible, it should be noted that the rhetorical invention may be used with the same success for legitimizing the decisions in cases when it is needed to overcome the existing legal rules which work against the desirable outcome. It may so happen, because the arguments in legal reasoning are not logical, but dialectical onesor quasi-logical – they are based not on rules of formal logic and true premises, but on premises that are probable and “derive their persuasive strength” from their similarity with logical modes of reasoning, while staying, as distinct from them, approximate and imperfect.
If not supported by rhetorical ethics, which was, according to ancient rhetoricians, an integral part of a rhetorical action and contributed to definition of rhetoric as “something which creates an informed appetition for the good”, the judicial invention may easily distance itself from the acceptance of arguments by public, legal professionals or the arguing parties. In such cases the legitimization of the decisions will flow not from the topical idea of general acceptance, but from the authority of the court as a political institution, which decisions are obligatory whether we agree or disagree with the reasoning.
Semiotic and rhetorical approaches allow to identify the argumentative strategies which are used by courts, to find fallacies in argumentation and to investigate the use of arguments for eristic purposes. Rhetorical doctrine of topoi assists in finding a wide variety of arguments, but it cannot exist without rhetorical ethics which imposes restrictions on freedom of interpreter. The search for arguments may pursue different tasks: to find the best solution of a legal problem or to justify a decision made on grounds outside the realm of law. This point is exemplified by analysis of arguments used by Russian courts in human rights cases. Rhetorical topica allows the courts to find arguments in support of fundamental rights even when the literal interpretation of a statute dictate otherwise.
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