Legal concepts from the standpoint of innovation and preservation of meaning: a rhetorical perspective
| Autor | Claudia Roesler |
| Páginas | 123-140 |
Legal concepts from the standpoint of innovation and
preservation of meaning: a rhetorical perspective
Claudia Roesler
1. Introducing the topic; 2. Thinking along with Koselleck; 3. Introducing
Theodor Viehweg: dogmatics, zetetics and base theory; 4. Viehweg’s historical
examples and what they can teach us; 5. Connecting the dots
1. Introducing the topic
The current article has the cultural innovation in legal discourse as its
theme and intends to investigate it as a persistent phenomenon, explored by
looking at the rhetorical and argumentative practices of jurists. It represents
an initial approach to the subject and will certainly need to be further devel-
oped in later research. Therefore, we offer the reader an introduction to the
topic and to its possible unfolding.1
Its starting point is to think about the way jurists proceed with their tasks
with a peculiar combination of innovation and conservation, easily noticeable
if we look at legal concepts in a long-term perspective or if we compare sever-
al contemporary legal systems, preferably while representative of diverse cul-
tures. In other words, our starting point implies showing how this particular
combination is naturalized in the linguistic and operational practices of ju-
rists and only appears when we identify a socio-legal problem, contrast it with
its normative and jurisprudential regulation and denaturalize the text or, as
in this paper, when we think of law in connection with language and history.
One of the transversal topics that appear in our observation of Brazilian
argumentative practice is that of the legal culture that highlights the bound-
aries of arguments. For the purposes of this investigation, this culture is un-
derstood as the set of shared beliefs, institutions, and knowledge, which make
up for a background in which arguments of legal theory and practice of a giv-
1 This article is a revised and expanded version of the one presented at the Workshop
, held at the
, on June 17 and 18, 2019. I thank the colleagues who
contributed to it and made it possible to improve the text, especially Cristiano Paixão,
Isaac Reis and Massimo Meccarelli.
123
CLAUDIA ROESLER
124
en historical time become possible. When new social problems arise, jurists
into existing mechanisms, which are the shared and eventually disputed lex-
icon. A cultural innovation appears when the lexicon changes, encompassing
phenomena not previously covered and it does so by the corresponding pure
and simple conceptual innovation or by the evolution of the semantic content
of terms.
In order to carry out the discussion, we will start from the idea by Reinhart
Koselleck, presented in a text entitled “Repetitive structures in language and
history”2 in which the author debates the dialectic relationship between inno-
vation and the keeping of structures. From the insight offered by Koselleck,
we will be able to look at this process in a more practical way, following the
suggestions from Theodor Viehweg3 about how legal knowledge is built and
its different “layers”. The distinctions between dogmatics, zetetics and the
common substrate that Viehweg describes as a “base theory” will be explored
further in the article.
second and the third to Viehweg, presenting his main theoretical categories
and then exploring the author’s thoughts, with historical examples. Finally, it
ends with closing remarks connecting the dots addressed throughout the text.
2. Thinking along with Koselleck
Taking advantage of a beautiful image about love – the unrepeatability of
each story that involves lovers as if it was unique, and its repetition over time,
if considered humankind as a whole – Koselleck proposes his investigation
on the topic of repetitive structures as a generalization of a fact that started
from two observations: in a timeline, people and their life events, their con-
occur within pre-conditions that are repeatable and, at the same time, never
remain exactly as they were before. In other words: if everything was repeat-
ed endlessly, there would be boredom. If, on the contrary, everything was
in constant innovation, humanity would fall into some kind of “black hole”
without having a clue to where it was heading.4
2 Koselleck (2010); the text, with minimal changes, also appears in Koselleck ( 2018).
3 Viehweg (1974); also Viehweg (1995).
4 Koselleck (2010).
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