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@inproceedings{1316879,
author = {Klusoňová, Markéta},
address = {Brno},
booktitle = {Argumentation 2015 : international conference on alternative methods of argumentation in law},
editor = {KLUSOŇOVÁ, Markéta, Michal MALANÍK, Monika STACHOŇOVÁ a Martin ŠKOP},
keywords = {Communion; Communitas; Rhetoric; Judicial Reasoning; Law and Literature},
howpublished = {tištěná verze "print"},
language = {eng},
location = {Brno},
isbn = {978-80-210-7970-0},
pages = {103-120},
publisher = {Masaryk University},
title = {Communitas, Communion and the Judicial Reasoning},
year = {2015}
}
TY - JOUR
ID - 1316879
AU - Klusoňová, Markéta
PY - 2015
TI - Communitas, Communion and the Judicial Reasoning
PB - Masaryk University
CY - Brno
SN - 9788021079700
KW - Communion
KW - Communitas
KW - Rhetoric
KW - Judicial Reasoning
KW - Law and Literature
N2 - Understanding of acceptability of various rhetorical tools in legal reasoning has a pivotal role in the field of legal argumentation. Previous studies (as the most influential of them New Rhetoric written by Chaim Perelman and Lucie OlbrechtsTyteca) have reported that rhetorical approach has much to offer to legal discourse. Though, one of its greatest challenges still remains the same: to prove that rhetorical approach to legal argumentation is reasonable and proper. Still, at least in the civil law systems to date there has been little agreement on which tools of rhetoric are useful way of legal convincing and which serves just as mere rhetorical ornaments. In this paper, I argue that the use of citation of literary fiction in legal reasoning is useful and admissible tool of legal reasoning in any legal system due to its rhetorical and performative character. This paper attempts to show that the way how these citations are used in reasoning of legal decisions may be and should be properly understood in terms of legal rhetoric, especially of the New Rhetoric introduced by Perelman and Olbrechts-Tyteca. The central thesis of this paper is that use of citation of literary fiction in legal reasoning is the way of creating communion between speaker and his audience which serves as a necessary basis of creation of communitas within the audience and this communitas works as one of the tools of legitimization of the legal system. In the pages that follow, it will be argued that performance studies and rhetoric provide necessary answers on possibilities of legal reasoning. The aim of this paper is to explore the relationship between rhetorical aspects of legal reasoning and legitimacy of judicial decision in the context of citation of literary fiction in legal discourse.
ER -
KLUSOŇOVÁ, Markéta. Communitas, Communion and the Judicial Reasoning. In KLUSOŇOVÁ, Markéta, Michal MALANÍK, Monika STACHOŇOVÁ a Martin ŠKOP. \textit{Argumentation 2015 : international conference on alternative methods of argumentation in law}. Brno: Masaryk University, 2015, s.~103-120. ISBN~978-80-210-7970-0.
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