The rhetorical syllogism (Enthymeme) in judicial argumentation

Abstract

The thesis here expounded can be divided in three parts: in the first place, it is supposed that the syllogism is not the rhetorical way, and less still the logical way, indeed used to reach the decision in the legal proceedings monopolized by the modern State. At the most, it can be seen as a form of presenting a decision that has already been reached by other means. It sure constitutes a highly functional procedure, effective and legitimating. It is generally not a conscious strategy on the part of the so called official legal agents (judges, prosecutors, state attorneys, lawyers, plaintiffs), which seem to believe that the decision before the concrete case is in fact produced by the previous general norm enunciated by the system. If there would be a chronological order, the general norm comes afterwards. In the second place, the judicial discursive structure seems to be rather enthymematic than syllogistic, because not all the effectively used norms are revealed, many of them staying not only out of question but also hidden. Finally, it is suggested that, in the atmosphere of faking dogmatic law in which acts the underdeveloped State, those implicit norms are not just presupposed as evident, but they are also uncertain, being rendered to manipulation