(During February, I plan to post once each day or so on this blog as I read and think through the texts on my PhD prelim exam reading list. I take the exams during the first two weeks of March. You can read about the reading list here. The post topics will vary, with some coming from each of my four topical lists.)
American lawyers, judges, and legal scholars have a complicated relationship with rhetoric. This stems in part from a lack of clarity about what is meant by ‘rhetoric.’ We can comfortably conclude that for most in the legal community, ‘rhetoric’ means ‘mere rhetoric,’ that is, a linguistic performance designed to persuade or obfuscate but with no substantive value (as substance is measured in the law). There is an awareness of ‘rhetoric as persuasion,’ echoing Aristotle’s definition of ‘rhetoric’ as “seeing the available means of persuasion in each case” (Aristotle, 2007, p. 36). This awareness is sometimes identified in texts urging legal readers to embrace the productive capacity of rhetoric. There is also a critical and evaluative movement in the law, led particularly by critical legal scholars, but also pursued by some others, that assesses the ways that legal texts constitute our society and can enact and reinforce power relationships and ‘other’ minority groups. All these things are senses of ‘rhetoric.’
What is absent, however, is an awareness that legal epistemology—the ways in which we can be said to ‘know the law’—and the very constitution of the legal system itself are deeply rhetorical. What I mean to say here is that the law is not ‘logical’ in any formal sense of the term or demonstrative (apodeictic) in the sense that Aristotle would understand it. Instead, the entire legal system embraces the contingency of time and place, or where it does not embrace such contingency, it selects presumptions and default stances that reflect not logical truths but rhetorical expediency and efficiency. This is especially true in the constitutive rules of litigation: the rules of procedure and evidence. But it is true in other respects as well.
I believe that a rhetorical theory of jurisprudence—that is a philosophy of law that is grounded in rhetorical principles—can fill the pragmatic gap in legal theory between those philosophers apparently wedded to a deductive-nomological model of legal theory and those who claim that judges (in particular) simply make decisions based on personal biases and self-interest and then write opinions to justify their decisions.
This post is the first of several where I want to consider this issue. In the balance of posts, I’ll review a number of questions: (1) what classical logic and rhetoric (particularly Aristotle and Cicero) can tell us about this problem; (2) how rhetoric is acknowledged in legal scholarship; (3) how contemporary legal theory leaves a gap between rule-skeptics and ‘legal realists’ on the one hand and advocates of logic and devotion the text on the other; (4) whether a rhetorical philosophy of law could fill that gap; and (4) whether rhetorical principles underlie the heart of contemporary legal epistemology and the structure of the American system.
You can tell that I already have a point of view here, but now I need substantiate my position, hopefully with something more than ‘mere rhetoric.’
Aristotle. (2007). On Rhetoric. (G. A. Kennedy, Trans.) (2nd ed.). New York: Oxford University Press.