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Law as a System of Topoi: Sources of Arguments v. Sources of Law
In this Chapter it is argued, that from the rhetorical perspective contemporary law can be understood as a system of topoi, that is sources of arguments, rather than a closed system of legal rules, organized into a strict hierarchy. The analysis of the judicial practice shows that the courts are quite selective in the choice of legal sources they use for justification of their decisions and do not feel obliged to give priority to the sources of law in compliance with the formal legal doctrine. Hierarchy of sources does not always rule the choice of the decision, but participates in judicial choices on equal footing with other considerations, which are also constitute parts of the system of legal topoi. In addition to topoi understood as sources of arguments, there are topoi understood as values. If topoi of the first category help to find the arguments, topoi of the second category rule the choice. The judges assign the weight to the topoi of the first category on the basis of topoi from the second category, thus the weight of the same arguments may be different in different jurisdictions, for different judges (as rhetors) or for different audiences. Politics, religion, historical development, scientific advances and other considerations affect the decision-making. Thus, the system of law from the topical angle looks not like an ordered hierarchy, but rather like concentric circles, when the process of legal reasoning as a searching engine starts from the letter of law and moves from the text, which creates the core of these circles, to topoi lying outside the text, that is from the center to peripheral circles, where politics, morals, historical experience, religion, rule of law are located.