The argumentative turn
a. From Dupréel to Perelman
The second period of the Brussels School is marked by the argumentative turn and the revival of rhetoric. This movement draws on the work of Eugène Dupréel, one of the leading figures of Brussels philosophy and sociology. Introduced to pragmatism by his teacher René Berthelot and a regular contributor to the work of the Institut de Sociologie Solvay, Dupréel undertook in two major works to rehabilitate the thought of the sophists, denounced and disparaged throughout the history of philosophy since Plato. Moreover, readily claiming the influence of Protagoras, whose thought he considered steeped in “the sociological point of view”, Dupréel developed a pluralist moral philosophy centred on convention and agreement. His “philosophy of values” gives particular prominence to confused notions, which play a central role in agreement between minds. His influential and controversial work provided an impetus for a revival of rhetorical studies.
His pupil Chaïm Perelman, a jurist and philosopher, continued his teacher’s work in his own way. Passionate about logic, he became particularly interested in the question of justice from 1945 onwards. The Second World War had deeply affected members of the Brussels School, who were involved in resistance to the occupying forces. It required a fundamental rethinking of the relationship between law and justice. The School then drew on its anti-formalist tradition, focused on judges, to challenge both Hans Kelsen’s dominant normativist theory and Herbert Hart’s analytical theory.
In 1950, Perelman co-founded the Centre national de recherche de logique. With Paul Foriers, Henri Buch and René Dekkers, he established its legal section in 1953. In 1967, it became the Centre de philosophie du droit, now known as the Centre Perelman de philosophie du droit. The team, composed of Belgian and foreign professors and legal practitioners, studied non-formal reasoning through the reasons given in judicial decisions. In this way, they renewed the study of major questions in legal logic, including Le fait et le droit (1961), Les antinomies (1965), Les lacunes (1968), La règle de droit (1971), La motivation (1978) and La preuve (1981).
Building on this legal research, Perelman thoroughly renewed the study of rhetoric and made a fundamental contribution to the argumentative turn. In 1958, together with Lucie Olbrechts-Tyteca, he published his celebrated Traité de l’argumentation. Translated into many languages, the work achieved international and multidisciplinary recognition. It gave rise to what is known as the “New Rhetoric” and to a pragmatic model of interpretation. Perelman’s work in the philosophy of argumentation was continued by his pupils, notably Michel Meyer, who developed problematology in particular.
b. Achievements in positive law
Like their predecessors, this new generation of Brussels School jurists actively contributed to the evolution of law. Recognition that, beyond the formal sources of positive law such as legislation and regulations, there are general principles of law that must be recognised as an integral and binding part of law was an emblematic victory for the School’s anti-normativist ideas and a product of its activism. Paul Foriers, Perelman’s friend and deputy, had opened the way in a 1967 study. In 1970, Ganshof Van Der Meersch, a constitutional-law professor at ULB and Procurator General at the Court of Cassation, devoted his celebrated mercuriale (opening address) to the subject. That same year, the Court followed his recommendations, admitting an appeal in cassation alleging a breach of a general principle of law not embodied in a specific legislative provision. Law was now officially recognised as existing outside and beyond legislation.
Foriers’s ideas on “positive natural law” also found expression in criminal case law through recognition of the doctrine of necessity and, more broadly, grounds of justification. Robert Legros, a ULB professor of criminal law, author of an important draft reform of the Criminal Code, First President of the Court of Cassation and active member of Perelman’s circle, devoted his talent and energy to their development.
Brussels School jurists also made particularly notable contributions to private law. In the law of obligations, where Pierre Van Ommeslaghe succeeded De Page, the School accompanied the transition from a voluntarist conception towards a pragmatic theory recognising the legitimate expectations of others. It did so through the formulation and recognition of doctrines concerning cause, appearance, good faith and lapse, among others. In the law of property, the Court of Cassation recognised strict liability for abnormal neighbourhood disturbances, as formulated by Dekkers. Jean Van Ryn, together with Jacques Heenen, established the principles of commercial law through pragmatic observation of different areas of business life. Over several generations, the School worked to construct the law of the enterprise. It succeeded in advancing a broad conception of the corporate interest, reflected in practice in the supremacy of the board of directors over the general meeting, anticipating by several decades current debates on corporate governance and corporate social responsibility.
The Brussels School also maintained its engagement at European and international levels during this period. Henri Rolin, the first president of ULB’s Centre de droit international, founded in 1964, and Ganshof Van Der Meersch, who founded ULB’s Institut d’Études Européennes (IEE) in 1963, became respectively President and Vice-President of the European Court of Human Rights. Again through Ganshof Van Der Meersch’s impetus, the School secured recognition of domestic judges’ power to review the conformity of domestic rules with international and European norms, including the case law of the European Court of Human Rights, significantly transforming legal practice. Under Jean Salmon, a pupil of Perelman and also a member of the Reims critical school, the Centre de droit international developed a critical approach to positive international law and distinguished itself through its engagement, notably in litigation before the International Court of Justice.
Quoted expressions are translated from the French for this page.
