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In this book we have examined how our concept of the ideal or universal audience profoundly affects the style, form and substance of legal argumentation. That each person constructs a vision of an ideal audience is indisputable. It is also indisputable that for most people this ideal audience is, to use Perelman’s term that has also been adopted by Habermas,1 a universal audience. One of the themes of this book is that these visions of an ideal universal audience are widely shared. That is, it is not merely the case that we, as individuals, conceive the ideal audience as a universal audience, but that our individual visions of the ideal audience coincide with the visions of others. Some of these visions are shared among people belonging to a certain culture. Other visions are shared by people who, although belonging to different cultures, attribute certain universal characteristics to certain forms of human endeavor. Finally, we have seen that some visions of an ideal audience are coming to be accepted as truly universal and applicable to all types of human endeavor.
KeywordsDemocratic Society International Criminal Court European Convention Legal Argumentation Legal Culture
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- 1.See Chapter 3, supra, at p. 27.Google Scholar
- 2.See Chapter 4, supra.Google Scholar
- 3.See Chapter 5, supra.Google Scholar
- 4.Consider the willingness of the German Constitutional Court to recognize judicially enforced welfare rights in contrast to the refusal of the United States Supreme Court to do so. See Chapter 5, supra, at pp. 59–60. Unlike the United States and German constitutions, many modern constitutions expressly recognize welfare rights. See, e.g., Articles 21 and 22 of the Greek Constitution of 1975. To what extent such rights are judicially enforceable against the state is another matter.Google Scholar
- 5.It would be almost impossible to overestimate the importance of Brown v. Board of Education, 347 U.S. 483 (1954) and the subsequent federal civil rights legislation in bringing about a fundamental change in the attitude of most Americans on racial questions.Google Scholar
- 6.See Chapter 11, supra, at pp. 183–86. Id. at 188–89.Google Scholar
- 8.The principal enumeration of personal rights is contained in the Canadian Charter of Rights and Freedoms, Schedule B, Part 1, § 2 of the Constitution Act, 1982, but the rights enumerated in that and other sections are subject to the general statement in § 1, that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”Google Scholar
- 9.Constitution of the Republic of Poland, 1997, art. 31.Google Scholar
- 10.Constitution of the Republic of South Africa, 1996, art. 36.Google Scholar
- 11.Constitution of the Federal Republic of Nigeria, 1989, § 43.Google Scholar
- 12.Although the reluctance of American courts to countenance any prior restraints of the press are well known, many Justices have refused to rule out the possibility that an injunction might be available in wartime to restrain publication of the date upon which a convoy would sail. See e.g., New York Times Co. v. United States, 403 U.S. 713 (1971), at 725 (Brennan, J., concurring); id. at 742 ( Marshall, J., concurring ). This was the famous Pentagon Papers case.Google Scholar
- 13.It should not be forgotten that the Fourth Amendment was adopted against a background of resistance to the British Government’s use of searches, pursuant to general warrants, to suppress political dissent. See e.g., Entick v. Carrington, 95 Eng. Rep. 807 (K.B. 1765), cited and relied upon in Boyd v. United States, 116 U.S. 616, 626 (1886). That is, it was adopted to prevent reasons of state from being used to justify searches and seizures.Google Scholar