- Creating Legal Worlds: Story and Style in a Culture of Argument by Greig Henderson
Creating Legal Worlds undertakes a rhetorical analysis of selected appellate cases to illustrate how judicial discourse is crafted to persuade. It participates in what is today a fairly mature genre of rhetorical studies of law supported by scholars from communication studies, rhetoric and composition, literary studies, and legal studies. Unfortunately, scholars from these disparate fields do not always speak to each other as much as they should, and Henderson's book is no exception, relying on legal and literary sources and ignoring the robust scholarship in communication studies. That is not a great shortcoming because this book is, first and foremost, a work of criticism, and its merits rely less upon theoretical generalizations than upon the insights that Henderson's deft reading of legal texts provide.
To the uninitiated in this field, Henderson's assertions about the priority of story, style, and contingent argument in appellate cases will be illuminating: legal argument is more about strategically crafted stories than about rules, logic, or determinate causal relations; judicial opinions implicitly construct the persona of the judge; narratives are strategic in highlighting (or ignoring) facts, giving voice to some and not others, and using language to characterize actions and persons; pathos appeals in judicial opinions make victims appear sympathetic and guilty parties heinous; judicial pronouncements are performative, "bringing into being the realities they pronounce"; legal communication is dialogic, "directed towards some real or hypothetical other"; analogy is critical to legal argument, though it is challenging because no two cases are ever exactly alike. These are important points for understanding that judicial opinions are rhetorical, and this book is a handy source for coming to grips with what that entails.
For those working in this field, the value of the book is not in enumerating these insights into judicial argument, which other scholars have offered before; rather it is in the patient, thoughtful, often brilliant analyses of specific cases that illuminate these features of judicial discourse, exemplifying, concretizing, and vivifying them. Furthermore, like most good rhetorical criticism, there is more to the analysis than one can easily generalize about – notably, the rich texture of the judicial opinions which are crafted to address unique rhetorical situations with greater and lesser effectiveness. Henderson is most insightful in scrutinizing the stylistic choices of judicial opinion writers. Consider his masterful reading of a British judge's sympathetic construction of the case of an old man whose ancestral farm was taken by the bank: [End Page 281]
The terse sentences in this opening paragraph, two-thirds of which contain fewer than ten words, create a staccato effect and imitate the confusion of Old Herbert Bundy, who is being assailed by short jabs from all sides. From his perspective, events are happening too quickly to be processed, and the speedy, jerky language reflects his befuddled psychological state[and his susceptibility to being taken advantage of by the bank].
The entire book has an inferential form. Henderson dives into specific texts and then offers the lessons that can be drawn from them in the first five chapters. The last two chapters include overall lessons illuminated by the foregoing analyses in considering the relationship between rhetoric, law, and philosophy (classical and postmodernist).
One might quibble that Henderson's generalizations about judicial rhetoric draw from a narrow range of cases – especially those involving rape and torts. To demonstrate the importance of narratives in, say, technical cases involving tax or contract law could reveal their importance in less obvious places. One also might wish that he grappled with cases where it is harder to take the moral high ground, as Henderson rightly does in denouncing patriarchal arguments in rape cases; to engage cases with less moral clarity might lead his analysis to grapple with the moral ambiguities that challenge judicial writers in many cases. What Henderson does offer here is one of the most sophisticated analyses of style and narrative in judicial rhetoric I have read. His is a noteworthy contribution to scholarship in...