The Notion of an Ideal Audience in Legal Argument

As the dedication ofthis book suggests, the genesis ofthis book arises from my association with Cha'im Perelman. Because I was one of the few Americans to comment on his TraUe de l' argumentation: la nouvelle rhetorique, before it was translated into English, I was invited to a conference celebrating the translation ofthat monumental work into English that was held in August 1970 in Santa Barbara, Califomia at the Center for the Study ofDemocratic Institutions, which was then under the directorship of the late Robert M. Hutchins. From that beginning, Professor Perelman and I developed a strong and warm friendship which was cemented when Professor Perelman and his wife, Fela, came to North Carolina in 1979 as a fellow at the National Humanities Center. I enjoyed the occasions on which I was able to participate in the activities of the Centre National de Recherehes de Logique which had been established, under Professor Perelman's aegis, in Belgium. A trip to Brussels was always somethingto which I looked forward. Since Professor Perelman's sudden and untimely death in January 1984, shortly after he had been singularly honored by being made a baron by King Baudouin, I have benefited greatly from my participation in the programs of the Perelman Foundation which was established through the generosity and efforts ofBaronne Fela Perelman; a remarkable woman in her own right who has now sadly also passed away.

Zusammenfassung
Since Professor Perelman's sudden and untimely death in January 1984, shortly after he had been singularly honored by being made a baron by King Baudouin, I have benefited greatly from my participation in the programs of the Perelman Foundation which was established through the generosity and efforts ofBaronne Fela Perelman;

Inhalt

1. Introduction.- 2. The Notion of an Ideal Audience as an Analytical Tool.- A. A General Philosophical ExampleIlluminating the Power of Rhetoric.- B. An Example from Legal TheoryIs a Predictive Theory of Law Logically Possible?.- 3. What Are the Constraints that Can Be Imposed on Arguments Addressed to an Ideal Audience?.- 4. Some Universal Features of Ideal Audiences in Legal Contexts.- 5. Different Conceptions of the Ideal AudienceA First Look.- 6. Accounting for Differences in Perceptions of the Ideal AudienceSome Preliminary Observations.- A. Competing Visions of the Way the State Should Be Organized.- B. Conflicting Views as to the Purpose of the State.- 7. Choosing Between Competing Visions of the Goodthe Case of Necessity.- A. The Need to Choose.- B. Choosing to Sacrifice the Property of Others.- C. Sacrificing the Life of an Innocent Person to Save the Lives of a Greater Number of Innocent Persons.- 8. The Conflict Between the General and the ParticularSome Legal Background.- A. Some Historical Background and Examples.- B. The Scope of the Modern Tort of Negligence.- 9. The Conflict Between the General and the ParticularTheoretical Perspectives.- A. The Case for General Principles Put Forth by Dworkin.- B. Additional Factors Prompting the Search for General Principles.- C. Counter-Arguments.- 10. Ambivalent Attitudes with Regard to Discretion.- A. Introduction.- B. An Analytical Framework.- C. The Irresistible Urge to Narrow the Scope of Discretion.- D. Structural and Ideological Factors Behind the Urge to Broaden the Scope of Discretion.- 11. Toleration of Diverse and Even Inconsistent Outcomes.- 12. Conclusion.- Cases Cited.