Rhetoric and Persuasive Strategies in High Courts’ Decisions: Some Remarks on the Recent Decisions of the Portuguese Tribunal Constitutional and the Italian Corte Costituzionale on Same-Sex Marriage

Abstract

Legal argumentation is usually considered the more formal kind of practical argumentation, thanks to the long tradition of “legal syllogism” as its formal instrument, but also to its legal restraint. Yet, in arguments such as those used by high courts in their justifications, we may find not only strict formalism and adherence to the letter of the law, but also the attempt to resolve differences of opinion and conflicts of interest, and perhaps also the rhetorical attempt to persuade the legal community, the legislator or even public opinion of the soundness of the court’s decision. Contemporary theories of legal argumentation have let aside the idea that the analysis of legal argumentations can show the judges’ hidden ideological and political positions by resorting to traditional legal arguments. Just as an example, it may be interesting to analyze the justificatory function of argumentations contained in two decisions made by two constitutional courts, in Italy and in Portugal, on the same question. Constitutional judges, apparently, do not need to persuade anybody: there is no higher judicial authority, and their interpretation of constitutional text is definitive. For this reason, one can assume that strategic argumentation plays little role in the arguments justifying their verdicts. I hope I can show that this assumption may not, fully, reflect the reality.

Keywords: rhetorical devices in legal reasoning, natural language, argument mapping