The Rhetoric of Law

Editorial Introduction

Editorial Introduction Austin Sarat and Thomas R. Kearns Dealing in words is dangerous business.... Dealing in long, vague, fuzzy-meaning words is even more dangerous business and most of the words The Law deals in are long, vague and fuzzy. - Fred Rodell The legal process is always the same, an open, though bounded, forum where forensic battles are contingently and temporarily won. -Stanley Fish Oratory serves to produce the kind of conviction needed in courts of law and the subject of this kind of conviction is right and wrong. -Gorgias IILaw;' Gerald Wetlaufer claims, lIis the very profession of rhetoric:'l It is lI a profession of words:'2 Once uttered, these descriptions of law seem commonplace. They conjure up familiar images of obscure legal jargon and Dickensian evocations of law's sometimes absurd preoccupation with form over substance. At the same time, however, they unsettle and arouse anxiety among some mainstream social scientists, traditional jurisprudes, and conventional legal scholars.3 They remind all of us that law can never escape the intricacies and imprecisions, We are grateful for the helpful comments of Adam Thurschwell. 1. See IIRhetoric and Its Denial in Legal Discourse," Virginia Law Review 76 (1990): 1545, 1555· 2. David Mellinkoff, The Language of the Law (Boston: Little, Brown, 1963), vi. 3. See Fred Rodell, Woe unto You, Lawyers (Berkeley and Los Angeles: University of California Press, 1980), 39. 2 THE RHETORIC OF LAW as well as the promise and power, of language itself.4 Such observations about law's rhetoric seem to let law off too easily by displacing the question of justice. Shouldn't law after all be a IIprofession of justice"? And while law may be a profession of words and of rhetoric, lithe particular rhetoric embraced by law operates through the systematic denial that it is rhetoric."5 It appears, then, that to insist on the importance of the rhetoric of law is to highlight an opposition with law's conception of itself. Talking about law as a IIprofession of rhetoric" would seem, at first glance, to stand in stark contrast to the view that law is a profession of power, the command of the sovereign backed by sanction ,6 or that law is a profession of rules.7 Yet both of these ideas themselves depend on language, on verbal or written utterances. Commands and rules, though distinct in many different ways,8 each is signaled by words-for example, must, should, ought to-that purport to require particular forms of conduct. But recognizing law as a IIprofession of rhetoric" means more than noting that it characteristically directs us through language and that its use of language is calculated to be persuasive. Law is not only profuse in its verbosity; in addition, it celebrates, and dogmatically insists on, the proper and precise formulation of human desires in words.9 It calls on us to keep in mind the dramatic consequences that often accompany law's peculiar linguistic formulations. As Robert Cover put it, ilLegal interpretation plays on a field of pain and death:'lo Law, then, is a stage for the display of verbal skill, linguistic virtuosity, and persuasive argument in which words take on a seriousness virtually unparalleled in any other domain of human experience. To focus on law's language instead of the serious business with which law is everyday engaged will seem to some frivolous at best 4. See Stanley Fish, "Fish v. Fiss," Stanford Law Review 36 (1984): 1325. 5. Wetlaufer, "Rhetoric and Its Denial," 1554. See also Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis (New York: St. Martin 's, 1987). 6. John Austin, "Law as the Sovereign's Command," in The Nature of Law: Readings in Legal Philosophy, ed. M. P. Golding (New York: Random House, 1966), 77-98. 7. H. L. A. Hart, The Concept of Law (Oxford: Clarendon, 1961). 8. Ibid., chaps. 2 and 4. 9. For a dramatic instance of such insistence see Trident Center v. Connecticut General Life Insurance, 847 F. 2d 564 (9th Cir. 1988). 10. nViolence and the Word," Yale Law Journal 95 (1986): 1601. EDITORIAL INTRODUCTION 3 and dangerous at worst. It arouses anxiety among law's adherents and its defenders by drawing attention to the unscrupulous, unattractive ways legal processes can be manipulated, for example, by the lawyer who artfully mesmerizes an audience with the sound rather than the substance of his words.ll...