The evolution of judicial justification

Perelman's concept of the rational and the reasonable

Richard D. Rieke

pp. 227-244

in: James L. Golden, Joseph J. Pilotta (eds), Practical reasoning in human affairs, Berlin, Springer, 1986

Abstract

Chaim Perelman believed that justice is a prime example of a "confused notion" which like other philosophical concepts, "cannot be reduced to clarity without being distorted," and cannot be understood adequately from a perspective that is not rhetorical.¹ This essay presents an argument for using the metaphor of small group decision making as a perspective for improving our understanding of the process by which courts do justice. Small group theory is essentially rhetorical, is consistent with argumentation analyses of appellate opinions, and extends Perelman's ideas of the rational and the reasonable. The essay begins with a brief look at some approaches to legal research to set the stage for the thesis argument.

Cited authors

Perelman Chaïm