The Rhetoric of Law

Antirrhesis: Polemical Structures of Common Law Thought

Antirrhesis: Polemical Structures of Common Law Thought Peter Goodrich There is the future, in that past which you never wanted. -Luce Irigaray, Marine Lover The call for a return to the method, style, and goals of rhetoric within contemporary legal studies has been marked by a certain conformity of purpose. While rhetoric is appropriately and variously understood to be a discipline concerned with argumentation (dialectic), persuasion , and action, its practical value to the study of law is almost universally perceived to be resident in its capacity to produce agreement . For Chaim Perelman, the pioneer of the new rhetorics of law, the function of the revival of the study of oratory was to facilitate communication, to identify specific messages, and to align legal orator and legal audience.1 More recent studies vary little in their reformative I am happy to record my thanks here to a number of perceptive commentators on earlier versions of this article. David Caudill, Neil Duxbury, Yifat Hachamovitch, Alan Hunt, Lester Mazor, Tim Murphy, Austin Sarat, Jeanne Schroeder, and Marty Slaughter all took me to task in varying degrees for overexpansive claims. I have benefited from their sobriety. I have also benefited financially from the support of the Nuffield Foundation and the British Academy who funded differing stages of the research upon which this paper is based. 1. Chaim Perelman and Obrechts Tyteca, The New Rhetoric: A Treatise on Argumentation (Notre Dame, Ind.: Notre Dame University Press, 1969) formulates the goal of rhetorically successful speech in terms of "intellectual contact" that II establishes a sense of communion centred around particular values recognised by the audience" and held in common by them (14). See also Chaim Perelman, Logique 57 58 THE RHETORIC OF LAW goals. Rhetoric will return language to nature,2 eloquence to the institution,3 and community to law.4 Rhetoric will not only save law from the specter of nihilistic indeterminacies of interpretationS but will equally return the art of judgment to its proper ethical parameters as a genre of civic speech.6 In its latter formulation, rhetoric not only Juridique, Nouvelle Rhetorique (Paris: Dalloz, 1976), where the reciprocal desire of speech is formulated in terms of l1 a desire to realise and maintain contact of minds; a desire, in the head (chef) of the orator to persuade, and in that of the audience, a willingness to listen" (108). For analysis of Perelman's work, see Peter Goodrich, "Rhetoric as Jurisprudence: An Introduction to the Politics of Legal Language," Oxford Journal of Legal Studies 4 (1984):122. 2. This claim, which is found classically in Isocrates and Longinus particularly, is made most stridently in Brian Vickers, In Defence of Rhetoric (Oxford: Oxford University Press, 1988) as for example: "the lore of rhetorical figures [can] be seen as deriving originally from life. It was mimetic, an attempt to classify emotional states and their resulting speech forms ... the eloquence of rhetoric is merely a systematisation of natural eloquence" (296). For discussion and criticism of that view, see Ernesto Grassi, Rhetoric as Philosophy (Philadelphia: University of Pennsylvania Press, 1980), chaps. 1-2; Thomas Cole, The Origins of Rhetoric in Ancient Greece (Baltimore: Johns Hopkins University Press, 1991), chap. 2; Peter Goodrich, "We Orators," Modern Law Review 53 (1990):546. For criticism, in broader terms, that links the nature in rhetoric to the heliotropism of Western metaphysics, see Jacques Derrida, Margins of Philosophy (Brighton: Harvester Press, 1983), 207ff. 3. See Kenneth Burke, A Rhetoric of Motives (Berkeley and Los Angeles: University of California Press, 1969), 90-102; James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1990), chap. 3; Vickers, In Defence of Rhetoric, 7-9, 236-38. 4. White, Heracles' Bow: Essays on the Rhetoric and Poetics of Law (Madison: University of Wisconsin Press, 1985), chap. 3; White, Justice as Translation, 36: "Part of maintaining a community is maintaining the agreement not to speak or ask about the ways in which its language means differently for different members"; or "to speak and act like a lawyer, as one learns to do at law school, is to commit oneself to a certain community and discourse, to enact a view of language and the world that entails an ethics and politics of its own, even to give oneself a certain character" (215). 5. See, for example, Gerald Frug, IIArgument as Character," Stanford Law Review 40 (1988):869, 871-72: "I reject the notion that the only alternative to finding a way...