The theory of rhetoric is recognised and widely used in a number of disciplines, particularly in the social sciences. It is therefore slightly surprising that it has not gained an important footing in jurisprudence. It is often argued that rhetoric and argumentative justification are clearly different issues. However, the present paper argues that they are in fact two aspects of argumentation and that the theory of rhetoric may be used also in the context of legal reasoning.

Moral philosophy in all its contemporary forms, whether consequentialist, formalist, contractarian, utilitarian, or virtue ethicist, presumes the possibility of formulating principles of conduct that apply universally to all human beings. Standard exceptions are infants and young children, persons who are clinically insane, and persons with reduced mental capacity. These exceptions are recognized by all modern systems of morality and law. The inability to distinguish right from wrong, due to immature age, mental disorganization, or insufficient intelligence is grounds to exempt any (...) given person from moral responsibility and moral agency.Human beings not bound by such conditions are distinguished by their capacity .. (shrink)