On Logos, Pathos and Ethos in Judicial Argumentation

Abstract

The chapter endeavors to present what is known in the legal literature as a rhetorical approach to law. The contribution may be understood as a preface to a broader research agenda, which proposes a conceptual framework to analyze legal argumentation in an international context. The point of departure is that law may be considered as a rhetorical practice. The chapter will justify the theoretical premise that analytical categories from the Aristotelian rhetoric can be useful in understanding the discourse in international courts. To achieve this the paper has been divided into three main parts. In the first section, Aristotle’s rhetorical categories logos, pathos and ethos are defined in accordance with a rhetorical empirical method elaborated by the legal philosophers from the School of Mainz. In the second section, the core of this rhetorical empirical method is outlined following K. von Schlieffen’s work on the analysis of judicial decisions. Finally, as a simple illustration of the rhetorical approach, two decisions on human dignity from the International Court of Justice (ICJ) are examined, taking these two examples as a topos, which in turn, reinforces the case for problem-oriented reasoning in the practice of international law.