I promised some time back that I would “post once a day or so during February” while I prepared for my PhD prelims. HA! I posted once after that promise… This morning, I finished the last of my prelims. I do want to post some of the thinking I went through during that process, though, and this is the first of a series of excerpts from the answer I gave for my “law, logic, and language” specialty exam. For the balance of these posts on law and rhetoric, I’m favoring a definition of ‘rhetoric’ that is closer to Aristotle’s (2007) or Perelman and Olbrechts-Tyteca’s (1969) than Kenneth Burke’s or I.A. Richards’; namely, that is it concerned with how a speaker/writer persuades and convinces an audience. Please be charitable if you are reading these posts. I’m only lightly editing them as I cut them from the exam I wrote in a hurried 24 hours.
Rhetoric and law are, and always have been, in a close embrace. Classical texts on rhetoric always associate it with adjudication; whether they also associate it with deliberation and epideictic varies. (See, for example, Aristotle’s Rhetoric; Plato’s Gorgias; Nadeau (1964); for a an accessible overview of rhetoric in the classical world, see Pernot, 2005). By contrast, when Aristotle speaks of logic, he does not use examples from the judicial or deliberative realms. (Aristotle, 1989; 2010). (Citations are to works on my reading list, though it’s possible I may have overlooked a couple external cites. Sorry.)
Of course, there are those for whom that embrace constitutes an illicit or at least secret affair, who believe the only lawful marriage is between law and logic. On the other hand are those who view law as exclusively or principally rhetorical. Even those, like Hasian et al. (1996), who claim to steer a middle course, tend to favor one view over the other.
Hasian et al. (1996) claim that the United States Supreme Court exists in a “rhetorical culture” and that conceiving of it that way permits them to navigate a middle course between what they style as “classical legal theory” and “critical legal studies,” the latter being a movement they select as exemplary from among various postmodernist, critical, and feminist approaches to legal theory. They characterize the classical or “scientific” view of law by claiming that it portrays the ways “a community of legal specialists supposedly ‘discover’ the correct legal decisions in complex cases because they are guided by non-political rules and logics that operate outside of the context of individual interests and human discretion” (p. 325). They contrast critical legal scholars, who they claim “frequently conclude that the law is merely an ideology, and as such it represents an illegitimate exercise of coercive power…. [and] that ‘the rule of law’ is little more than a means of hiding and legitimizing the maldistributions of wealth and power in society” (p. 326; emphasis mine). The view Hasian et al. put forward is that law (at least Supreme Court jurisprudence) is “part of an evolving rhetorical culture” (p. 326). They continue:
Rhetorical cultures evolve by adapting to changing social, political, and economic exigencies, and the law is an inevitable branch of such a culture. From this perspective, then, the law is neither an immutable, foundational principle, nor a relentlessly overdetermined dominant ideology, but one component in the organic evolution of a social order that continually (re)constitutes itself through public discourse. (p. 327)
In my view, their “middle way” between scientific formalism and radical critical theory grants too much to the latter at the expense of the former; while what Hasian et al. says seems to me to be true, it is only part of the picture.
My own view is that rhetoric plays an important constitutive role in legal theory, that it licenses certain approaches to legal inquiry and addresses the contingencies of time and place, but that logic plays an important regulatory role, a “field-independent” basis for regulating the activities of players in the legal community and for laypeople outside the community to evaluate its works. These are positive aspects on the legal system, but there are certainly negative ones as well. Legal theory and the rhetoric that accompanies it are conservative, and they therefore advocate for the retention of modes and methods of reasoning and argument that may no longer be justified or that favor incumbent power- and money-wielding groups.
I’ll talk more about legal theory in another post, but of course it’s unfair to characterize all of legal theory based on the limited texts on my list, which tend to focus on legal argumentation. My personal experiences as a lawyer support some tentative effort to generalize the observations I make about these texts, but further textual and empirical research will tell whether I’m right. Nevertheless, I do want to be able to make distinctions between the major movements of legal theory represented in these posts. Hasian et al. discussed two movements: the first they called the “scientific” or “classical” view, which is often referred to in law as “formalism,” and under which “justified legal reasoning consists of deduction of particular results from valid legal norms arranged into a Euclidean abstract axiomatic system” (Brewer, 1996, p. 93); second was critical legal studies. There are many other models, of course. Two important ones for the discussion below are “legal realism” and “pragmatism.” Jerome Frank represents legal realism on my list; he attacks both the notion that the rules of law constitute a sort of coherent system (a stance he calls “rule skepticism”) and that courts are suited for truth- or fact-finding (a stance he calls “fact skepticism”). His view instead is that judges (and juries) make decisions based largely or purely their prejudices, biases, emotional states, etc. Finally, Richard Posner (and to some extent Weinreb, Priel, and Brewer) represent (a kind of) pragmatism. This movement might best be summed up by saying that it aspires to principled decision-making, but it acknowledges the difficulties of achieving that standard in any particular time or place. Its adherents value logico-deductive thinking, but they generally acknowledge the need to reach outside that sort of thinking to make decisions.
In the next post, I’ll offer an example of a question addressed by legal theorists: exemplary or analogical reasoning. Future posts will consider legal theory’s stance toward rhetoric, taking account of legal theory’s uncertain place as normative or explanatory, rhetoric’s constitutive role in legal theory, the relation of rhetoric and logic in legal theory, and the ways that judicial opinions straddle “rhetorical cultures.” In the last post, I’ll discuss some thoughts based on my own experience and suggest directions for research to address concerns raised earlier in this essay.