Liaison: Techniques of Association and Dissociation
Once a claim has been identified through use of the starting points, the claim can be systematically developed by liaison. The concept of liaison is characterized by the creation of association or dissociation among premises. Perelman emphasizes that "[t]he two techniques are complementary and are always at work at the same time; but the argumentation . . . can stress the association or the dissociation which it is promoting without making explicit the complementary aspect."43
"By processes of association we understand schemes which bring separate elements together and allow us to establish a unity among them, which aims either at organizing them or at evaluating them, positively or negatively, by means of one another."44 According to Perelman, three techniques are used to create association: quasi-logical argument, argument based on the structure of reality, and argument based on establishing the structure of reality.45
Techniques for creating liaison frequently overlap with others. In legal argument, inference can make a liaison between facts and a conclusion of law, as illustrated by the following example. Assume that the victim of an automobile accident consults a lawyer about a possible lawsuit against the driver of the other car. He explains that a witness to the accident observed that the other driver was tilting his head back to drink a beverage immediately before the collision. Using the technique of liaison, the lawyer can infer that the driver was not observing the road and was therefore negligent, and can create an argument of succession (of cause and effect). In addition, this argument also suggests an association of coexistence, as it establishes a bond between an act (of looking away from the road) and an essence (of negligence).
While arguments by association create successive or coexistent links between the starting point and proposition, the technique of dissociation seeks to drive a wedge between ideas. Usually arguments by dissociation divide a concept into two parts in order to resolve an incompatibility. "This dissociation into phenomenal reality (reality as it appears) and into noumenal reality (of things in themselves) is a typical instance of using the pair appearance/reality . . . ."46 In the following illustration, Perelman clarifies:
At first sight, appearance is nothing but a manifestation of reality: it is reality as it appears, as it presents itself to immediate experience. But when appearances are incompatible—when, for example, the oar is plunged into the water and appears broken to our sight and straight when we touch it—they cannot represent reality as it is, since reality is governed by the principle of noncontradiction and cannot simultaneously, and in the same relationship, have and not have a given property. It is therefore essential to distinguish between appearances which correspond to reality and those which do not and are deceptive.47
The process of dissociation is often invoked in arguments of statutory interpretation, where the literal text of a statute is asserted to be incompatible with its legislative purpose. Consider for instance a possible argument for a client who has been charged with violating a statute that reads: "No vehicle may be driven on the curb of a sidewalk." Assume that the legislative purpose behind the statute was to insure pedestrian safety. Assume further that the client drove her vehicle onto the curb to avoid hitting a child who had dashed into the street. While the client has violated the text of the statute, the argument can be made that its purpose was not violated because pedestrian safety was actually insured by her driving over the curb. Such an argument makes a dissociation between the letter and the spirit of the law in order to urge a fair interpretation of the statute and to justify a finding of no liability.
The technique of dissociation offers a mechanism for understanding and resolving incompatibilities between notions of reality.48 It is useful in training students to analyze and construct arguments where two competing but tenable interpretations of reality exist. That reality may involve either an interpretation of a rule or an interpretation of a set of facts. In Cardozo's words: "The reconciliation of the irreconcilable, the merger of antitheses, the synthesis of opposites, these are the great problems of the law."49 As Perelman explains:
The effort to resolve incompatibilities is carried on at every level of legal activity. It is pursued by the legislator, the legal theorist, and the judge. When a judge encounters a juridical antinomy in a case he is hearing, he cannot entirely neglect one of the two rules at the expense of the other. He must justify his course of action by delimiting the sphere of application of each rule through interpretations that restore coherence to the juridical system. He will introduce distinctions for the purpose of reconciling what, without them, would be irreconcilable.50
Presence
In justifying a claim, the arguer must determine how to give significance to the premises and relationships expressed in the argument. Choosing to single out or to emphasize certain characteristics in an argument draws the attention of the audience to those characteristics and thereby gives them a presence that prevents them from being overlooked. Presence acts directly on the sensibility of the audience through the selection of features for both inclusion and exclusion in an argument. Presence has a positive as well as a negative dimension: the deemphasis of information can also be used strategically.51 In the context of the law, presence can be exhibited in the forms of proof introduced into evidence at trial and in the statement-of-facts section of a brief.
The material facts in the trial of a lawsuit are determined by various forms of proof presented to the trier of fact. One form of proof, known as real proof, is specifically directed to the senses and perceptions of the fact finder as a basis for reaching a conclusion. For instance, the exhibition of a photograph of the victim's body in a murder prosecution, or the child in a paternity suit, or the plaintiff's disfigured limb in a personal injury action, can effectively create a presence that moves the finder of fact.
Similarly, the techniques of presentation can be used to create presence in the statement of the facts in a brief to the court. Although the court will ultimately decide the case on the basis of the law, the statement of the facts can engender a sense of fairness or sympathy about which party ought to prevail. The careful choice of descriptive terms, the arrangement of words and dependent clauses, the use of active and passive voice, and the degree of detail and abstraction can lend presence to facts that are favorable to a client's position. For example, the statements "Plaintiff was injured while using the machine" and "The defendant was in possession of less than an ounce of a controlled substance" are imbued with a presence that is different from that effected by the statements "Plaintiff injured himself while using the machine" and "Twenty-five grams of crack cocaine was discovered on the defendant's person." As these examples suggest, the impact and connotation of facts can be enhanced by characterization and arrangement that is mindful of the element of presence.
Although this article has barely sketched Perelman's complex theory, it should be clear that the new rhetoric offers an expansive audience-based theory of argument and a taxonomy for understanding legal argument.52
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Legal argument is a practical argumentation which takes place within the context of a legal dispute and which depends on the evidence and available legal authority to justify the acceptance of a claim by the judge or jury.53 The theories of Stephen Toulmin and Chaim Perelman suggest heuristics for use in legal argumentation. Their heuristics are field-invariant: they can be used in any area of doctrinal law. Toulmin's layout of argument incorporates the components of a complete argument and provides a basic structure on which to build a legal argument. Perelman's new rhetoric furnishes a set of tools and a taxonomy for use in building the argument. Together, their theories may be particularly useful in clinical and advanced courses in trial and appellate advocacy, where the focus is on case building, fact analysis, and the construction and use of proof.54 Most important, however, the theories of Toulmin and Perelman offer a conceptual framework for making the study of legal argumentation explicit and systematic to students.
43 Perelman & Olbrechts-Tyteca, supra note 22, at 190.
44 Id.
45 Id. at 191. The first technique for creating liaison, quasi-logical argument, draws upon logical and mathematical relations—contradictions, identity, whole–part associations—that are not formal demonstrations. Quasi-logical arguments are patterned after the processes of formal logic without the presumption of intrinsic validity. The second technique, argument based on the structure of reality, includes associations of succession and coexistence. Associations of succession refer to arguments of cause and effect, or antecedent and consequent, whereas associations of coexistence rely on making a link between a person and an act, or between an act and an essence. For example, arguments of authority are arguments of coexistence which establish a bond between the individual and the act. The third technique of liaison, argument based on establishing the structure of reality, involves two classes: (1) arguments by example, illustration, and model; and (2) arguments by analogy and metaphor. Id. at 193-95.
46 Perelman, supra note 23, at 126.
47 Id. at 126-27.
48 See Perelman & Olbrechts-Tyteca, supra note 22, at 4. The technique of dissociation is not limited to distinctions between appearance and reality. The technique can also be used to distinguish between other philosophical pairs, including act and person, theory and practice, individual and universal, and subjective and objective. For further discussion, see id. at 420-26.
49 Benjamin N. Cardozo, The Paradoxes of Legal Science 4 (New York, 1928).
50 Perelman & Olbrechts-Tyteca, supra note 22, at 414-15.
51 Perelman, supra note 23, at 35.
52 For additional applications of Perelman's model to legal argumentation, see, e.g., Edgar Bodenheimer, Perelman's Contribution to Legal Methodology, 12 N. Ky. L Rev. 391 (1985) (demonstrating Perelman's concept of reasoned justification in law); David N. Haynes, The Language and Logic of Law: A Case Study, 35 U. Miami L. Rev. 183 (1981) (using Perelman's theory to analyze Supreme Court opinions); Donald H. J. Hermann, Legal Reasoning as Argumentation, 12 N. Ky. L. Rev. 467 (1985) (using Perelman's model to study function of argument in three court opinions).
53 Perelman, supra note 1, at 120-21.
54 See also Levine & Saunders, supra note 2, at 121-22.