International Journal for the Semiotics of Law V/13 [1992]

THE RHETORICAL CONSTRUCTION OF LAW*

by
KATHARINA SOBOTA
(Johannes Gutenberg-Universittit Mainz)

I. Sometimes it is helpful to summarize the results at hand and

integrate them into a more general view. This broader perspective
is usually achieved by concepts such as "the Law", "the legal dis-
c o u r s e " , o r - the prevailing term in Continental t h e o r y - "'the
legal system".
The risks connected with these abstract entities are well known; 1
however, if one uses the term "system" as a mere auxiliary supposi-
tion, and if one takes into account the Wittgensteinian intention of
forgetting the concept after one has used it, one has a chance to es-
cape the usual dangers of holism and systematisation.
A good way to maintain scepticism towards one's own concepts is
intentionally to replace them with ambiguous metaphors. Such a
trope could be the image of the "web": while the term "system" is
able to captivate us with its clear, simple and scientific sound for
ever, the metaphor "web" lead us into a sphere of delicate order, in
which concepts have no fixed meaning and thus can never provide
orientation for truth-seeking scientists.
The idea of conceiving h u m a n worlds as "webs" has a certain
tradition behind it. Above all, one is reminded of a thought of
Friedrich Nietzsche, who compared the h u m a n world of concepts
with a "construction of cobwebs. "2

This essay is based on a paper presented on the 7th Conference of the

IASL in Utrecht under the inspiring title "The Semiotic Web of Law"; it has
profited a lot by the final discussion, and especially by Willem J.
Witteveen's response.
1 See the criticism of the concept of "the unity and identity of the legal
s y s t e m " by Bernard S. Jackson, Law, Fact and Narrative Coherence
(Merseyside: Deborah Charles Publications, 1988), 131ff.
2 Friedrich Nietzsche, tiber Wahreit und Liige im aussermoralischen
Sinne, in Die Geburt der Tragi~die Unzeitgem~fe Betrachtungen,
40 KATHARINA SOBOTA

In the same context he also invents metaphors such as "scaffold-

ing and playthings" or "timberwork and planking, "3 but he always
returns to the image of the cobweb, which to him seems the most
appropriate to circumscribe one of his central thoughts: namely,
that anything we hold to be a "truth", even the most basic categories
of our orientation, "is produced within ourselves and out of ourselves
with the same necessity as a spider spins. "4 So we are " b u i l d i n g
geniuses" who by far surpass the bees, since the material we use for
our constructions is not taken from nature, as is the case with bees'
wax, but from ourselves: it is the "far subtler stuff of concepts" which
we apply by means of poesy and rhetoric.5
In other words, h u m a n certainties (as, for instance, the systems
of science, morality or law) are self-created products. Nietzsche
sees our convictions as webs we are constantly wea~ng, believing at
the same time the self-spun threads to be expressions of a pre-given
order. What we believe to be the truth are invented metaphors by
which we constitute our personal relations. 6 We are no external
observers, but are sitting in the centre of our star-shaped stabilizing
web of meanings. Within this, we behave as if we were the measure
of all thingsY
II. With this reference to Protagoras, at the latest, it becomes
obvious where the roots of Nietzsche's considerations are to be
found: in that thinking of antiquity cultivated by the Sophists under
the name of "Rhetoric", being not only regarded as a practical proce-
dure for producing convictions, but also as an analytic discipline ex-
ploring the patterns of these processes, s By seeking these rhetorical

Nachgelassene Schriften, 1870-1873, Kritische Studienausgabe, ed. G.

Colli, M. Montinari (2 Aufl., Berlin/New York: de Gruyter, 1988), 873ff., 882,
885: "Bau aus Spinnef~iden", trans, by the author.
3 Ibid.,at 888: "Geriist und Spielzeug", "Geb/ilk und Bretterwerk."
4 Ibid.,at 885; italics by the author.
5 /bid., at 882, 88O.
6 Ibid., at 880-883; cL Ottmar Ballweg, "Analytische Rhetorik als jurist-
ische Grundlagenforschung", in R. Alexy, R. Dreier, U. Neumann (eds.),
Rechts- und Sozialphilosophie in Deutschland heute (Stuttgart: Franz
Steiner, 1991), 45-54 (ARSP Beiheft Nr. 44).
7 Nietzsche, supra n.2, at 883.
8 Cf. Ottmar Ballweg, "Analytical Rhetoric, Semiotic and Law", in R.
 THE RHETORICAL CONSTRUCTION OF LAW 41

patterns the rhetoricians discovered that human conceptions, espe-

dally of what is just and unjust, were "linguistic webs": they con-
sisted of opinions based on language. They were articulated, pro-
duced and influenced by means of signs.
Unlike early semiotics, which was more interested in the
structure of the "webs", rhetoric has concentrated from the beginning
on the "process of spinning and weaving", i.e. the production of the
semiotic webs. The product (law as a system of signs) or the producer
(human beings) have been less important than the question "how is
it produced?" The terms "sign" and "user of signs" (speech, speaker,
audience) therefore are not the basic categories of analysis, but are
introduced secondarily as a "means of persuasion. "9 The primary
category is the rhetorical act of bringing about, changing,
extinguishing human conceptions (as to what is just or unjusO. The
advantage of this approach lies in its potential empirical verifica-
tion: whether a rhetorical pattern does or does not constitute success
can at least be "verified" approximately by the success or failure of
the action in question (e.g. winning or losing the trial).
III. During the last few years interest has increased in the
rhetorical construction of our legal conceptions. Nevertheless, we
still do not know much about the patterns of "how Law is produced".
Of the various approaches, which all seem promising in one way or
the other, I should like to mention only a few: the conception of
"narrative rules" by Bernard Jackson, the empirical study of so
called "socio-pragmatic patterns" by Pompeu Casanovas, and the
analysis of the interactions between judges and jury by Paul
Robertshaw. Finally, there is modern research in rhetoric, which
has approached the subject in three ways, so far: (1) Theodor
Viehweg, the founder of the Mainz School, and Ottmar Ballweg
have done basic research, and have tried to show that the analysis
of juridical actions lies within the competence of rhetoric. (2) This
mainly theoretical work has been completed by textual analyses.
Fundamental thereto are the studies concerning juridical argu-
mentation by Cha'im Perelman, and the analysis of decisions of the

Kevelson (ed.), Law and Semiotics, Vol.1 (New York: Plenum, 1987), 25-33;
idem, "Entwurf einer analytischen Rhetorik', in H. Schanze (ed.), Rhetorik
und Philosophie (Miinchen: Wilhelm Fink, 1989), 229-247.
9 Aristoteles, Ars Rhetorica, L2.2-6.
42 KATHARINA SOBOTA

Bundesverfassungsgericht (constitutional court) by Waldemar

Schreckenberger. (3) A third group is interested in law as a rhetori-
cally constituted social system. This approach, which was
initiated by BaUweg, too, will be developed further in this paper,
taking into consideration the results of textual analysis.
The most important success we have gained so far in this field is
perhaps the insight that everything is much more imponderable
and paradoxical than expected by scientific optimism. Never-
theless, there are some results which might lead further investi-
gations in the right direction. They still do not provide exact
information about individual legal behaviour patterns, but they do
represent a provisional catalogue of fundamental conditions a n s -
wering the question of when and under what circumstances the "web
of law" continues to be spun and weaved successfully, and when not.
Following current terminology I will name these conditions "con-
straints". In further discussions we might perhaps find a less mis-
leading word without associations of "external laws" or "invincible
coercions". At the moment, I cannot see a concept which could
replace this traditional term. The word "constraint" prevents us
from mistaking the development of legal patterns as arbitrary. 1 On
the other hand, the use of "constraints" does not imply a legal
system that is governed by axiomatic rules. It rather suggests that
the formation of law is moulded by some fundamental functions and
by the way the system fulfils this task; especially by the way it
solves the problem to keep what it is: Law has to continue itself; the
spiders have to sustain their webs.

1. Constraint of Decision

On the academic level, Law sometimes appears as a never-

ending story. However, in every-day practice there are situations
which forbid endless discussions. They demand of jurists to arouse
the feeling that m finally m an answer has been found. This does
not mean that lawyers and judges have to solve a conflict, but rather
that they are often asked to conclude it) 1 This "conclusion" of con-

10 K. Sobota, "System and Hexibility in Law", Argumentation 5/1 (1991),

275-282 ("Legal Argumentation").
11 O. Ballweg, Rechtswissenschafl und Jurisprudenz (Basel: Helbing &
 THE RHETORICAL CONSTRUCTION OF LAW 43

flicts (in the guise of "solving" them) is the kind of task the law-sys-
tem is expected to fulfil within the interplay with other social
systems.
To perform this task, jurists have to transfer the chaos of ev-
e r y d a y strife into a certain order, the order of legal standardisa-
tions. They have to translate 12 an infinite problem into a finite
one. 13
They achieve this especially with the help of legal procedures,
especially by rituals with an increasing degree of strictness. How-
ever, the main means are provided by language: by the ordering
force of g r a m m a r (Nietzsche), by the expectations of coherence as
regard the content 14 and by a style characterised by a high semantic
flexibility, that helps to adapt to different concrete situations.
Another form is the art of allusion: for example, in juridical
argumentation the norm on which a conclusion is supposed to be
based is often not mentioned,is
The interplay of these contradictory tactics lures the quarreling
participants on to the tracks of legal thinking. 16 It channels every-
day conflicts into a system of certainty w a system of certainty that
is built on uncertainty ... the "flowing water" of human existence. 17

Lichtenhahn, 1970), 23, 85f., 112f. "The Conflict is not concluded by

solution, but it is solved by conclusion (Der Konflikt wird nicht durch
LSsung beendet, sondern durch Beendung gel6st)", at 105; idem, "Science,
Prudence et Philosophie du Droit", ARSP LI/4 (1965), 543ff., esp. at 554 with
reference to Art.4 Code Civil: "Le juge qui refusera de juger, sous pr~texte
du silence, de l'obscurit6 ou de l'insuffisance de la loi, pourra ~tre
poursuivi comme coupable de d6ni de justice."
12 James Boyd White, Justice as Translation. An Essay in Cultural and
Legal Criticism (Chicago: The University of Chicago Press, 1990).
13 Ballweg, supra n.6, at 50.
14 As to the concept of "legal coherence" cf. Jackson, supra n.1.
15 K. Sobota, "Don't Mention the Norm", International Journal for the
Semiotics of Law W /IO (1991), 45-60.
16 Cf. Thomas Michael Seibert, Aktenanalysen. Zur Schriflform juristi-
scher Deutung (Tiibingen: Gunter Narr Verlag, 1981).
17 Nietzsche, supra n.2, at 882.
44 KATHARINA SOBOTA

2. Constraint of Linkage

Law does not exist as a phenomenon in itself. It arises from the

w a y people behave, and it perishes when the forms of behaviour
are no longer followed. Just as the spider has to keep on weaving
daily in order to sustain its web we have to conjure the phenomenon
Law day by day in order to "sustain" it. Wherever the chain of
evocations breaks, law perishes. Only very seldom is it possible to
revive a form of law which has not been exercised for a long time,
and wherever it has proved possible, the success was d u e to an
intervention which was not a legal one, but political or academic
(e.g. recourse to written traditions).
In order to enable daily evocations of the phenomenon Law, a
society must have energy and room to do so. Both these are absent in
situations of existential misery as well as in totalitarian states
where the function of ending conflicts is not accomplished by law,
but by other systems (religion, politics, etc.).~8
The constraint of linkage demands not only that the threads of
the legal cobwebs are spun daily, but also that they cohere. 19 To
reach that aim, legal rhetoric is forced to follow a double tactic: on
the one hand, it has to be the manifest moment of legal order in the
present, on the other hand it has to refer to the future. 2 Similar to
a TV-series which satisfies the curiosity of its spectators only
partly ~ and stimulates them with a "cliff-hanger" to watch the
serial continue, legal rhetoric must take care that something re-
mains open ~ in spite of its ordering function. The perfect formula
for the calculation of justice would mean its end, once and for all.
This openness of law, necessary for dramatic reasons, is guaran-
teed best by the discrepancy between human demands and the hu-
man means to construct justice. Which law, which judgement, which
opinion should be regarded as the ultimate? In a legal system
which is built on the conception of legal contest, and in a society

18 K. Sobota, "Geburt und Tod fiktiver Welten", in M. Heuser, W.

Schmidt (eds.), Gestalt. Gestalwerdung- Gestaltzer all (Hannover: Duphar,
1990), 45-53.
19 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen
Theor/e (Frankfurt a.M.: Suhrkamp, 1984), 62, 158.
20 Cf. Luhmann, ibid., at 157f.
 THE RHETORICAL CONSTRUCTION OF LAW 45

which is open to criticism and sometimes interested in improve-

ments, parts of the legal order seem always bound to revision and
thereby stimulate participation in the legal discourse.
Those critics articulating their views with means immanent to
the system are the ones who create the tension without which the
rhetoric of law could no longer exist. Part of these dynamic factors
are not only revisions of judgements and alterations of laws, but also
academic discussions with their utopias and insoluble conceptional
oppositions (e.g. geometrical or arithmetical justice?21 Individual or
community? Positivism or natural Law?)22 How intense criticism can
be in order to be productive depends on the actual demand for order.
A bored society loves the critic better than a society shaken by
alarming events. In times of irritation legal rhetoric must stress its
ordering aspect, its "completeness": that law is a "universal, con-
tinuing entity."
As judicature, administration and legislature permanently face
new problems, and these problems are solved by means of a per-
manently altering understanding of Law, it is not at all apparent
that this fiction should be accepted. Why should the mere contigu-
ity of totally different actions of individuals be experienced as "the
same"? What art must rhetoric apply to make out of " n u m e r o u s
drops" the "self-same river" (Heraklites)? This question is not only
important in order to understand how the constraint of linkage is ful-
filled, but also in order to comprehend how the system of law can
establish itself and maintain its existence. As the next but one
section will show, a solution to this problem is sought in the context
which is described by the catchword "self-reference". As self-
reference seems to be a central condition of legal rhetoric, it will be
dealt with separately as the fourth condition of the system of legal
rhetoric.

3. Constraint of Invention

The sphere in which Law exists as an entity is language.

With the help of language we can construct a "second" reality w

21 Aristoteles, Nicomachean Ethics, V.7.

22 Cf. K. Sobota, "Stimmigkeit als Rechtsstruktur', Archiv far Rechts- und
Sozialphilosophie LXXVII/2 (1991), 243-256.
46 KATHARINA SOBOTA

a reality which seems not to be a sequence of singular and transitory

actions, but a realm of being entities. Actions pass; concepts stay.
In order to invite people to "live in language", words do not only
have appeal to brains but also to hearts. The task of attracting
hearts is fulfilled by rhetorical figures and tropes. An empirical
method ("rhetorical seismogram"), that was recently developed,
shows the high intensity of rhetorical figures in juridical texts.23

4. Constraint of Self-Reference

Although a conceptual language can claim an ever-lasting

reality, and rhetorical figures can invite people to live in this real-
ity, Law needs devices to reproduce this reality in a sufficiently
similar way. These devices are self-references.

The phenomenon of self-reference is based on an artificial pre-

supposition: in the same way that one needs a mirror for a self-
reflection, self-reference demands a "second level", a sphere some-
what "above" the dimension of simple actions. This second sphere,

23 K. Sobota, "Rhetorisches Seismogramm. Eine neue Methode in der

Rechtswissenschaft",Juristenzeitung (1991),in press.
 THE RHETORICAL CONSTRUCTION OF LAW 47

which we can also call "observer", " m e m o r y " or "order of a higher

d e g r e e " , might be identical with the first sphere so far as its
"material" is concerned;24 it is of a different quality, however, so far
as "information" is concerned.2s This different quality is the result
of a paradoxical concurrence of difference and identity: on the one
hand the reflected image of the object is different from the object
proper, on the other hand it is identical insofar as the object proper
sees itself represented by the image. There is another constitutive
aspect besides the features of difference and identity: this self-
referential representation is not descriptive but prescriptive. It is
not its task to "describe", "observe" or "represent" passively, but it is
used to prescribe action.
A n exemplification of such a self-referential representation
could be the rhythm of a dance: the rhythm represents the dance in
an acoustic, non-melodic dimension - - it provides a kind of abstract
of the d a n c e - and at the same time it moves us, the dancers, to go
on and repeat the steps which constitute the dance itself.
As we learn from recent biology, any form of life is dependent on
such paradoxical duplications. The individual action is singular
and transitory; the synchronic moving self-referential represen-
tation produces the blue-prints which enable reproduction and com-
plex coordination. 26 The organisation of social life is, as far as this
point is concerned, similar to the biological mechanisms of con-
struction: here, too, we need "higher" levels of signs representing the
simple action for the purpose of repetition, coordination and in-

24 In these cases the "materials" are letters or neurons.

25 The auxiliary concepts "materials" and "information" are supposed to
express a relation only; it goes without saying that both elements are
inseparable irt living systems.
26 E.g. Manfred Eigen, Peter Schuster, The Hypercycle. A Principle of
Natural Self Organisation (Berlin: Springer, 1979); Hermann Haken,
Information and Self-Organisation (Berlin: Springer, 1988); Humberto R.
Maturana, Francisco J. Varela, Autopoiesis and Cognition (Boston: Reidel,
1979, Boston Studies in the Philosophy of Science); H.R. Maturana,
"Autopoiesis", in M. Zeleny (ed.), Autopoiesis: A Theory of Living
Organisation (New York/Oxford: Elsevier Science Publisher B.V., 1981),
21ff., 25, 32; idem, Erkennen. Die Organisation und Verk~rperung yon
Wirklichkeit, ausgew. Arbeiten zur biologischen Epistemologie,
(Braunschweig/Wiesbaden: Vieweg, 1982), 21, 39, 47ff., 73ff.
48 KATHARINA SOBOTA

tegration. The dimension to be employed for this, alongside the non-

verbal systems of signs,27 is human language.
With the help of this very special way of self-reflection (and
here at last the parallel between biological and social systems finds
its end) we succeed in inventing a "'second" level, besides the "first",
in which man's social interactions can be represented in a different
and prescriptive way. 28
What is astonishing about juridical self-references is that they
obviously exist in two versions: there are "genuine self-references"
and "'pseudo-self-references".
The "genuine self-references" are operatively apt means for the
continuing tradition of law as a system. They are "the rhythm".
Amongst them are to be numbered the forensic rituals, the techniques
of rhetoric, the mechanisms of unofficial teaching by older and more
experienced people, and the selection of recruits by means of
restricted admission. It is striking that this kind of reference is m in
spite of its importance m communicated only unofficially. Thus,
they could also be called "crypto-references". How "top-secret"
these crypto-references are becomes obvious if one takes into account
that (at least in Germany) even students of law hardly ever learn
anything about them. Therefore the techniques which keep law to-
gether have to be learnt by non-conscious imitations.
The second type of self-references, the pseudo-references, des-
cribe juridical decision-making in a manner which is quite improper

27 E.g., dance, gestures, models, numbers.

28 Fundamental besides Nietzsche: Immanuel Kant and his concept of
the "regulativen Prinzipien": Kritik der reinen Vernunfl (Stuttgart: Reclam,
1966), 599, 673ff; Hans Vaihinger, Die Philosophie des Als Ob. System der
theoretischen, praktischen und religi~sen Fiktionen der Menschheit auf
Grund eines idealistischen Positivismus (Leipzig: Felix Meiner, 1924, 2
Aufl.), 4, 14ff.; Ludwig Wittgenstein, Philosophische Untersuchungen, Nr.
114f., in Werkausgabe, Bd.1 (Frankfurt: a.M.: Suhrkamp, 1970), 343; idem,
~ber GewiJ~heit Werkausgabe, Bcl. 8 (Frankfurt a.M.: Suhrkamp, 1989), 10,
33f., 94f. (Nr.7, 94ff., 357ff.). As to the actual discussion: Peter L. Berger,
Thomas Luckmann, The Social Construction of Reality (New York:
Doubleday, 1966); Stephan Wolff, Der rhetorische Charakter sozialer
Ordnung (Berlin: Dunker & Humblot, 1976), 77ff.; Niklas Luhmann,
Soziale Systeme, supra n.19, at 25, 51, 61, 63f., 79, 227ff.; Hans Blumenberg,
"Anthropologische Ann/iherung an die Aktualit/it der Rhetorik", in:
Wirklichkeiten, in denen wir leben (Stuttgart: Reclam, 1981), 104ff., 132ff.
 THE RHETORICAL CONSTRUCTION OF LAW 49

from an operational point of view. They describe the making of a

juridical decision differently from how it was really made. They do
not describe the true genesis but give a creative, fictitious "pre-
sentation of the genesis". These presentations have no operative
function but only a rhetorical one. In cooperation with the invention
of concepts and propositions they help to produce the fact that a
juridical text reads as "prescriptive" by itself. As I showed on
another occasion, 29 all jurists support their decisions with such
pseudo-references to the genesis of the decision (etiology). While
rhetorical figures attract the heart, these pseudo self-references
attract the brain, referring to the dominant ideas of good and justice.
Pseudo-references occur in various forms: they can be explicit or
implicit, past-related or present-related. Moreover, they differ in
their inner form, i.e. in the contents of the story with which they
describe the alleged genesis. In German juridical texts there would,
at first sight, seem to be three types of genesis-descriptive stories:
(1) A pre-rational etiology, which reduces the text to magic or
other predominantly emotionally experienceable contexts
(such as a divine dictate).
(2) A rational etiology, which presents the juridical decision as
a logical apperception of objective facts (e.g. via "recognition
of facts" or "cognizance of the legal situation").
(3) A rational-reflexive etiology, which describes all legal pro-
ceedings as expressions of the human will (e.g. "contract",
"consensus of the majority").
The pre-rational presentations (1) activate some emotions
which are, in evolutionary terms, old, and which organised the
community at a time when there was no rhetorically elaborated ju-
risprudence. Juridical texts preferring a rational etiology (2) appear
to be matter-of-fact. They present their propositions as if the con-
cepts used represented real things and as if the arrangement of con-
cepts corresponded to the order of the real world. To use philosoph-
ical categories: they assume that juridical propositions are held to
have the character of ontological propositions. The rational-
reflexive (3) presentations modify this statement in a way which
takes into account the modern ideology of the individual and his

29 K. Sobota, Sachlichkeit, Rhetorische Kunst der Juristen (Frankfurt

a.M.: Peter I~ng, 1990).
50 KATHARINA SOBOTA

freedom of will.
All these self-references are able to produce conceptions which
have to be regarded as legends, myths or pseudo-problems. One can
never produce the phenomenon Law by executing "divine dictate",
one can never weave the web of Law by "application of norms" or
"logical deduction". Even the concepts of "justification", "interpre-
tation" or the "compulsion to establish norms" do not seem to be real
constraints of Law-construction; 3 they are constraints only in the
sense that they have to be part of a special occidental style of
presenting legal decisions.

5. Constraint of Reflexivity

The different levels of action and self-references do not run

separately, but interact. The self-referential representation of the
"second level" are produced by the actions of the "first level" of in-
vention, but at the same time they re-act upon this level prescrip-
tively. Thereby the processes which brought them about are
changed, too, so that reflected image and "reality" are able to adjust
to each other more and more productively. When they are at their
best (when corresponding specialisations have formed), the repre-
sentations "fit" the actions, and the actions "fit" the representations,
namely insofar as both impress the listener with an intensity suf-
ficient to keep the system going and accepted.
As the rhetoric of law works with self-references which are
two-fold,31 the reflexivity is two-fold, too. The "genuine", unofficial
feedbacks might achieve the adjustment to "outer reality" ("norma-
tive power of facts"32); the pseudo official ones help to shape the
ideal forms of judicial self-presentation. If a judge chooses the style
of rationality for example, the following will happen: as he wants
his actions to be regarded as rational he has to hide his emotions.

30 Twenty years ago, Ballweg formulated, besides the "compulsion to

decide", a "compulsion to justify", "to interpret" and "to establish norms",
Rechtswissenschafl und Jurisprudenz,supra n.11, at 108ff.
31 A circumstance which is presumably also the case with moral and
religion.
32 Georg Jellinek,"Normative Kraft des Faktischen",Allgemeine
Staatslehre, 3 Aufl. (Berlin: H/iring, 1914), 337ff.
 THE RHETORICAL CONSTRUCTION OF LAW 51

The effect is often that he calms down through the coldness of his
rhetoric and thereby his perspective of the matter becomes more
unbiassed. It is not only possible to talk oneself into a fury, it is also
possible to be infected by one's own pretended matter-of-factness.
It is in this loop of attitude and behaviour that Aristotle sees
the central condition of all ethics: "Thus we become just by acting
justly". 33 Where this reflexivity no longer takes place, the traces of
production and presentation diverge. Instead of becoming more and
more universal, instead of weaving the whole world into a net, the
two levels separate from each other, the web of inventions is carried
away by the wind (Nietzsche). 34

6. Constraint of Latency

As already mentioned, the rhetoric of law presupposes the fact

that a "second reality" is created by linguistic processes. In this
invented universe of signs one has to pretend that
there are prefabricated answers to all questions,
the dogmas of ontology are true,
the data constructing the juridical world are actually useful
building-blocks,
and finally the semiotic web of law is the "real world".

If one is inclined to do s o - facing these artificialities- one

might call the whole system of law a fiction, or even a permanent
deception. 3s Yet if one takes into consideration the view that this
"deception" is the basis of all cultivated forms of living together,
and thereby forms the largest part of our human reality, it seems

33 Aristoteles, Nicomachaen Ethics, II.1.

34 Nietzsche, supra n.2, at 882.
35 Nietzsche, ibid.~ passim, Vaihinger, supra n.28~ Walter Strauch, Die
Philosophie des "Als-Ob" und die haupts~chlichsten Probleme der
Rechtswissenschafl (Mfinchen: R6sl & Cie, 1923).
52 KATHARINA SOBOTA

more appropriate to name it a "constructive achievement. "36 Also,

the term "deception" neglects the circumstance that the "web of law"
is able, in a very effective manner, to deprive those who are caught
in it of liberty and life. Although we should take care not to estab-
lish a sharp contrast between "reality" and "fiction", we cannot re-
frain from pointing out the complex two-foldness without which the
phenomenon Law cannot be constructed. As long as it is supposed to
function in its traditional form, it is forced to hide the mechanisms
of its actual production. Anyone who argues in the context of actual
judicial decision-making that there are no '~things" in the
ontological sense, that it is impossible to transfer something infinite
into something finite, that Law is an invented semiotic system, will
be ridiculed at first; in the long run, however, he will destroy the
bases of Law. In this respect the art of weaving demands that the
constructional processes should remain unknown to the public. Quite
contrary to what nearly all theorists of Law and argumentation
demand: latency is a prerequisite of Law in its present form. Whe-
ther we want to accept a legal system which follows this prere-
quisite is another question.

7. Constraint of Appropriateness

All the above "constraints" are of a formal nature. They require

that certain rhetorical forms are observed; the contents, which m in
accordance with the constraint of i n v e n t i o n - have to be evoked,
are arbitrary.
The constraint of appropriateness, too, describes a formal con-
dition: judicial speech has to be formed in a way, so that it may be
accepted as appropriate by the audience. If this is not the case, the
speaker cannot persuade; persuasion, however, is the all-embracing
basic condition of the construction of rhetorical success. As we know
from Aristotle, restrictions concerning content are introduced via the
formal criterion of what is appropriate (gr. pr~pon, lat.: decorum,
aptum): the speaker has to find those words which render him
credible in the perspective of the audience. One who claims to be a

36 If I am not mistaken it was Peter Goodrich who pointed out this aspect
at the 1990 conference of the International Association for the Semiotics of
Law in O~ati.
 THE RHETORICAL CONSTRUCTION OF LAW 53

"farmer" must have a vocabulary different from an "intellectual. "37

The same applies to the judge w h o - in order to give his decision
more w e i g h t - presents himself as independent: ~ he has to speak in
a way the audience believes an independent judge should speak.
Secondly, his w a y of expressing himself has to stand in an ap-
propriate relation to the matter in question. 39 What this right re-
lation is must be found out by considering the assessments of the
audience. It is their view one has to take if one wants to know what
is "the matter", how is it to be evaluated (e.g. trifle or tragic), and
what propositions, in what tone, seem apt? In this way, the speaker
has to take into account the moods and inclinations of his actual
a u d i e n c e , its time, and its culture. If he wants to be successful,
neither the style nor the content of his speech can be arbitrary. The
tone in which he speaks, the way he arranges his thoughts, and also
the solution-alternatives and the premises he may employ as topoi
are all limited as to the situation. Yet the final tenor of his speech
(guilty or not guilty?) is not restricted. There are results, however,
which are excluded within the frame of a continually developing
system (e.g. capital punishment or a value judgement based on
aesthetics). 4
This correlation between rhetorical constraints, style, and
content of speech leads to a result appropriate to the situation.
N o r m a l l y , the speaker's "will to persuade" means nothing other
than that his speech was justifiable in the face of the respective
b o d y (judges, jury, public) who had to make the decision. These
bodies, too, are put together, presupposing democratic conditions 41 in
procedures which are subject to the constraints here discussed. In
this w a y the reflexive integration of the system of law within the
net of other social systems becomes effective: the feeling of what is
appropriate is influenced not only by the mood of the judges, but also

37 Aristotles, Ars Rhetoric.a, III.7.7.

38 The speaker's "character" is one of the three means of persuasion:
ibid., 1.2.4.
39 Ibid., III.7.1.
40 Jackson, supra n.1, at 28f.
41 As to the connection between rhetoric and democracy, see O. Ballweg,
"Rhetorik und Vertrauen', in Denninger et al. (eds.), Kritik und Vertrauen,
Festschrifl Peter Schneider (Frankfurt/M: Anton Hain, 1990), 34-44.
54 KATHARINA SOBOTA

by the political and economic conditions. Thus rhetoric, if it is

institutionalized in a living democracy, aims at an internal balance
in a culture which is experienced as justice. This justice need not nec-
essarily comply with the average state of opinion of all participat-
ing audiences, and become the juridical variety of social con-
formism. 42 Quite to the contrary, there is a possibility t h a t - - as a
consequence of the reflexivity of all successful p r e s e n t a t i o n s - the
feeling for justice of the majority may become influenced by the
refinement of a special rhetoric of law. Rhetoric is not only the
techne teaching how to persuade for a mere moment, but also the art
which erects a lasting construction of cobwebs on the "flowing water"
of human e x i s t e n c e - a second world of webs which is both "tender
enough to be carried on by the waves", and "firm enough not to be torn
by the wind. "43

42 As to this problem: Jackson, supra n.1, at 189, 193.

43 Nietzsche, supra n.2, at 882.