The rhetorical foundations of logic: rethinking Jørgensen’s dilemma

In analytical legal philosophy Jørgensen’s Dilemma (JD) has long been considered a watershed between logic and ethics or morals. According to a common interpretation of JD (i) only apophantic sentences can count as premises for a logical inference, and (ii) only declarative sentences (in the indicative mood) are apophantic. Thus (iii) normative sentences (in the imperative mood) cannot count as premises for a logical inference. In the case of law (which largely manages normative sentences) we should then admit that it cannot be logic. But in the same place where Jørgensen establishes his “puzzle” he indirectly suggests that any definition of logic is in itself rhetorical. If so, we could explore the legal rhetorical situation (namely the judicial one) – context, language, audience, speaker, argumentative moves etc. – without fear of being inevitably non-logic. In the following lines I will first stress the relevance of common JD’s interpretations in legal philosophy (sect. 1), then I will face some preliminary possible objections on the fact that: JD were actually a dilemma (sect. 2); or rather a mere reformulation of Hume’s is-ought problem (sect. 3); not so or no longer relevant for argumentative studies (sect. 4); anyway, surpassed by contemporary other-than-deductive logics (sect. 5). Secondly, I will analyze some parts of JD’s text in Jørgensen (1937) in order to bring to light its remarkable rhetorical foundations (sect. 6), eventually addressing the issue of legal reasoning as possibly “cured” by a rhetorically-oriented interpretation of JD.