This post is the second in a series. The first post explains how I’ve excerpted these posts from one of my PhD prelim exams. This one might make a lot more sense if you start with that one.
Legal theory has an uneasy relationship with rhetoric. Like scientists, lawyers and judges to not like to acknowledge that the work they do is influenced by “mere rhetoric.” This section of this essay addresses several facets of legal theory and the relationship of each to rhetoric. For each facet, I attempt to identify how legal theory’s stance with regard to it is both productive and problematic. Before discussing those facets, though, I’d like to introduce a sort of exemplary problem addressed by legal theory, as it will figure frequently in the discussions that follow. As it happens, the exemplary problem relates to “exemplary reasoning” (Perelman & Olbrechtc-Tyteca, 1969) or what lawyers commonly call “reasoning by analogy.” Analogical reasoning is central to the resolution of legal disputes. Consider an example, a case that is more than 100 years old (Weinreb, 2005; Adams v. New Jersey Steamboat Co., 1896). Traveling on a steamboat, Mr. Adams locked some money in his stateroom; someone stole the money while Adams was away from the stateroom. He sued the steamboat company under the theory that the common law (at that time) provided that innkeepers “were liable as insurers for the losses of their guests” (Weinreb, 2005, p. 42). The defendant argued that the stateroom on the steamboat was more like a sleeper berth on a train, the operator of which was not held to be an insurer of passengers’ losses. New York’s highest court agreed with Adams.
The court cited the public policy of protecting travellers from the temptations that innkeepers might have to take advantage of the “extraordinary confidence” that travellers must place in them. It concluded that the same “opportunities for fraud and plunder” that obtain in an inn are available to the operator of a steamboat, and that steamboats were essentially “floating inn[s]” (Weinreb, 2005, p. 42; quoting Adams v. New Jersey Steamboat). Of course, the court could have seen steamboats as more like train cars, given that both are modes of transportation. Instead, it “disanalogized” (in Brewer’s terms) the railcar cases, offering policy justifications for their choice of the cases to analogize. Having determined that the steamboat was an inn, the court deductively applied the legal rule that innkeepers are liable as insurers to find for Adams.
The “need” for judges to position their decisions to be consistent with previous decisions arises from the legal doctrine of stare decisis, a presumption that a court should follow the same rules that previous courts did. The doctrine is related to two legal principles: first, that the law should permit citizens (or at least their lawyers) to predict outcomes—if the courts decided a case one way in the past, I should be able to rely upon that in choosing a course of action for the future; second, that the law should afford similar treatment to persons in similar circumstances—if the courts punish me for an offence, they should punish someone else guilty of the same act. (Note that legal theorists are not ignorant of the fact, known at least since Aristotle, that no two events are identical, indeed, that any two events are the same as each other and different from each other in an infinite number of ways (Brewer, 1996).) Whatever benefits, in the form of predictability and equal protection, stare decisis and its reasoning by analogy to precedents provide, it is unquestionably a conservative doctrine: it is intended to make the future as much like the past as possible. Levinson (1996) also criticizes it on grounds that it’s hierarchical: He says precedents “make their effect primarily by an appeal to hierarchy, or less elegantly, power” (p. 192).
But for legal theory, exemplary reasoning poses a problem. How can the selection of precedents to follow be justified theoretically? How can we be confident that a steamboat is more like an inn than a railcar? These are problems in legal theory. But I’d like to take them up at the same time as discussing a problem with legal theory.
Legal theory is not clearly normative or explanatory
One difficulty in assessing the role of rhetoric in legal theory is that it is unclear whether legal theory in general, and even specific instances of legal theoretical discourse, is normative or explanatory. For example, Brewer (1996) explores exemplary reasoning (of the kind introduced above) in great detail. He offers a theoretical explanation of it under which it has “rational force”: “the rational force of an argument is the degree to which the form of the argument yields a reliable judgment about the truth of its conclusion based on the assumed truth of its premises” (928). He describes a complex process by which one can use “abduction” (inference to the best explanation) to infer from precedents a rule that one can then apply deductively to the case before the court. However, he does not clearly assert that this is the method either that judges do use or that they should use. Absent evidence that he has systematically examined the practices of judges, I would take it as a normative theory.
Weinreb (2005; 2007) is clearly attempting to offer an explanatory theory when he proposes that analogical reasoning is a different than induction, deduction, and abduction (the species of inference Brewer describes), that the location of “relevant similarities” upon which to found an analogy to precedent must be a creative leap. Weinreb claims that judges probably have no conscious understanding of how they draw the analogies; he criticizes Brewer for not seeing this, but it seems clear that Brewer is not offering his theory as a cognitive description, so the criticism is misplaced. Posner (2006), joining the discussion in response to Weinreb, criticizes the latter for “mystifying” the process of analogy. Posner says with regard to analogical reasoning, he’s setting out to answer the question “what exactly is the mental operation that the term denotes?” (762). He offers an explanatory theory, claiming that judges use policy considerations to find relevant similarities between an instant case and precedents. (Of course, the example he offers is pointedly an example of economic utilitarianism, Posner’s favored policy foundation.) But he then shifts without notice to a normative mode, offering criticism of cases based on whether the judges chose good (in Posner’s view) policy bases for analogy.
This failure of legal theorists to articulate when they are offering explanatory theories and when they offer normative theories is a significant problem in legal theory because the two types of theories are likely to view rhetoric differently. I don’t want to suggest a bright-line division between explanatory and normative theories. Normative and explanatory efforts need to work together, of course. A normative theory of the desirable outcomes of legal argument can very well inform and an explanatory theory of what makes a persuasive argument, which can inform a normative theory of what makes a good argument, etc. In the case of an explanatory theory, one might expect that it will account for data about how the world is. Given that legal writing and analysis textbooks take express account of rhetorical principles when discussing how to argue cases before courts, it can hardly be doubted that practitioners of the law believe that persuasion on non-logico-deductive grounds happens. An explanatory legal theory would focus attention on operations of this persuasion, for example, the extent to which the logico-deductive ideals of the law act as a curb to appeals to pathos and ethos; here, principles of rhetoric help to explain legal phenomena. A normative theory would instead discuss ethical questions, for example, whether the logico-deductive ideals of the law represent a desirable and attainable state of affairs; here, an account must be made of the extent to which rhetorical principles can structure the modes of inquiry licensed by the law consistently with normative objectives. It is this principle of rhetoric constituting and structuring inquiry in the law that we shall take up next.