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Law as Rhetoric

James Boyd White starts out by suggesting that the doing of law is not the doing of a science but of an art. Precisely the art of Rhetoric. The first question then is what does it mean to call law a "science," and what art is the art of rhetoric.

Professor White gives an answer to law as a science. Law is about determinate rules (written fixed text, legally constituted by correct procedures). This concept of law is a system which speaks of substantive rules as opposed to procedural rules, or primary rules as opposed to secondary rules. We have rules of construction which gives us a plain meaning and simply subsume facts under a given rule. The rule is a rule because it is based upon authority. Is this true??

So too, under what Professor White calls the new tradition of institutional sociology, we see law as any system of institutionally established and managed rules which need not have any particular ethical content to be called a law. The word managed is key here for it is assumed today that law serves ends by manipulating its objects -- us -- through the use of incentives or disincentives. Law becomes, in then end policy choices which the legislator makes, the court enforces or not, and the attorney indifferently defends or not, all in service of some further aim outside the law itself. be it equality, more friendly law for insurance companies, attempts to end racism, or control of reckless drivers.

Finally law as a science is said to deal with proofs of truths which of course entails an understanding of both deductive and inductive logic.
it is thought if you learn the legal science of deducing, interpreting, and finding rules, you can do law in a value free scientific kind of way.

Against this, Professor White speaks of law as the doing of rhetoric. It is, often referred to as the art of persuasion of what is probably true (and given this classic definition, you see immediately that doing rhetoric is the art of legal argumentation guided and framed by various evidence rules that deal with relevancy -- probability). It does so, it is said, by evoking the emotions of the listener and hence is a manipulative art.

Instead, Professor White speaks of rhetoric as constitutive. Law is, he says an activity, not a thing out there we look up in a book. Pause upon this. He points out that the mode of analogical thinking that allows one attorney to see the relevancy of a certain case to his case whereas the opponent discounts it shows as that law is always a creative act of argumentation with meaning being uncertain. So too, however, the attorney must always take account of opposition.

Hence she modifies her argument, includes a bit, rearranges an interpretation to accommodate objection. She "does" law. In doing this most importantly, the attorney is always speaking ethically, about what kind of community we should be for the call to some notion of the just, or right, is implicit in the language he must trust in to persuade another be it judge or jury.

It follows from the above, that we know law is always culturally situated, historically specific. The attorney tells a story (this is what happened, this is its meaning, this is its plot) which naturally refers to meanings, and implications, sensibilities, and modes of understanding prevalent in the culture and which yield the "story" its cogency. Hence the example of fishing and what it may mean. Insofar as we do this art of rhetoric, says Professor White, we are constituting ourselves, constituting a community.

Now when two come together to fish, or to argue a case, or to argue a case to a listener who will render judgment, there is an implicit question about the meaning f what they do, or say, together or as adversaries. At what point is there enough shared meaning that they can say "we"? For example, two opposing attorneys still each each other as a member in the same profession for they recognize modes of argument, of ways of dealing with each other, of informal and formal relations, that says "we"

The making up of a breach -- which the law is fundamentally about be it civil or criminal law -- is the coming into being of a shared meaning for the past and a for a common future. The attorney in the end, is acting to help resolve, to reestablish community by persuading a listener of the essential meaning of an event (or rule) which will end -- resolve -- a dispute.

There are several implications about law, some explicit and others implicit in Professor White's article. First, he reminds us that rhetorical language is concrete, for it seeks to unveil an idea or argument to the listener who it must remembered is human. This means nestled in a world of ethics, repulsions, distastes -- meaning. He is gentle in dismissing value free language.

Second, I wish to bypass his numbered suggestions for reasons I will clarify later in the course. But as to a generalization from them the most important is to ask when reading a text, or indeed listening is to attempt to comprehend what is intelligible in what is said, and why its is intelligible. What sort of world is presupposed?

Rhetoric as Art

I asked you to read the second article so you could place all of this discussion about rhetoric within the context of why you even have a law and literature class. As professor Barron again points out, there are those who see law as a science and those who see law as an art of rhetoric. Now, in the latter group you often get critical thinkers who tend to think that upon discovering that law is an art, its then all a sham and a deception. I do not hold with this. In addition she says there are those who teach law and literature who tend to see law itself as arid and thereby needing the softening hand of literature. In short, the need for emotion to be brought to the mechanical, logical and indifferent task of doing law. I also do not hold with the school of thought that see law, proper, as arid. Rather we will follow this route beginning with a couple of easy propositions:

First if Law is the doing of rhetoric and rhetoric is an art than law is art. Put differently, it may be (or as we will explore in this class), that justice is about the beauty of an argument, or an action rather than about whether it is "right or wrong." Now in theology this is an old old thought, for when we contemplate the Divine as a perfect being, we are contemplating it as a beauteous being. So too, when we attempt to reconcile perfection with "rightness" we become confused for one meaning of perfect (and hence beauty) in without exclusion. Perfection, or divinity is all, in perfect fittedness. This of course includes evil.

Now to say justice is about the beautiful is not to say that law is a sham meaning that we persuade by well spoken words that hide basically our hobbesian wants and drives and not a shred of virtue or aspiration to a concept of the good. Rather, it is to say this, our second proposition:

If justice is beauty, then it is closely connected to form (and hence all of your classes that deal with procedure or argumentation) rather than substance (or the actual bottom line rule). Now we know already that justice is about proper form rather than the substance of an action. Consider history and Sherman's march into Georgia. He may or may not have been right to fight on the side of the union. But that is not how we judge him historically. Rather the issue is how he fought -- his form. He was vicious, cruel, lacking in respect for his enemy. We judge him harshly. But so too, we know this in our profession. We do not judge a judicial opinion by its holding, but by its reasoning. Is it consistent, cogent. Does one point follow from another. Does it take account of opposing arguments and strive to reconcile perhaps divergent case law? In short we judge it by its form -- its shape -- its loveliness and elegance.

This then is the central idea this course will explore. How is it that justice partakes of beauty? (note that the just is always beautiful, but the beautiful is not always just, hence the lesson of Lucifer as the great deceiver). In answering that question keep in mind certain canons or rules of aesthetic. Proportion, harmony, composition, but most importantly the yoking together of seeming polarities into a unified whole. Hence we speak of positive and negative space in painting. Or in sculpture such as Michaelanglo's Pieta we speak of the life and movement contained in a lifeless piece of marble.

In Henry V, we will discover many polarities and the question for us is what does this text, this work of art, teach us about the nature of justice. The issue is not so much the "tale" or the right or wrong of various actions. Rather the thing is to discover the tensions, name them, and see how they are resolved. NOW, grappling with the text requires discerning the rhetorical community of Henry V's world and engaging with it. Ask yourself how this text represents constitutive rhetoric, or the doing of law, as Professor White speaks about it although (as you will see) there are no clear answers about right or wrong in any of the events that take place.