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1 HOW TO DO A RHETORICAL ANALYSIS OF ECONOMICS, AND WHY It's Not Philosophical Reading, It's Rhetorical Start with an example taken from a book with which I mostly agree, the first edition of Richard Posner's Economic Analysis of Law: Our survey of the major common law fields suggests that the common law exhibits a deep unity that is economic in character.... The common law method is to allocate responsibilities between people engaged in interacting activities in such a way as to maximize the joint value ... of the activities.... [T]he judge can hardly fail to consider whether the loss was the product of wasteful, uneconomical resource use. In culture of scarcity, this is an urgent, an inescapable question. (Posner 1972, pp. 98f.) Posner is urging us to see the common law as economically efficient. That's the philosophical way of reading the passage, seeing through. But look at the surface, the rhetoric. The argument is carried in part by the equivocal use of economic vocabulary . '~llocate," "maximize," "value," and "scarcity" are technical words in economics, with precise definitions. Here they are used also in wider senses, to evoke Scientific power, to claim precision without necessarily using it. The sweetest turn is the use of "uneconomical," which is not a technical word in economics, but encapsulates Posner's argument that in their courtrooms the judges follow economic models because to do otherwise would be "wasteful." The "economical/uneconomical " figure of speech supports the claim that economic arguments (arguments about efficiency) are pervasive in the law. The claim is hammered home by treble repetition (technically in classical rhetoric, com3 4 How to Do a Rhetorical Analysis of Economics, and Why moratio): first in this word "uneconomical"; then in the reference to a culture of scarcity (a nice echo of "a culture of poverty," that, from the other side of the tracks); and finally in the repetition of "urgent, inescapable." People involved mutually in automobile accidents or breaches of contract are said to be "engaged in interacting activities." That's on the surface of the words, yet the surface has philosophical importance. The "interaction " Posner talks about does not extend to the political or moral systems of the society. A rancher and a railroad "interact," but a judge does not "interact" with people who think that big enterprises like railroads are blameworthy or that people have inalienable rights. A vocabulary of "engaging in interacting activities" makes an appeal to the character of Scientist or Observer (technically, an "ethical" argument). Again, on the surface the passage uses the metaphor of "deepness" in unity, as do other arguments trying to change the way we categorize the world. The left-wing radicals in American law, the critical legal theorists , will tell you that the "deep" structure of law is an apology for capitalism. The right-wing radicals, here Richard Posner, will tell you that the "deep" structure is on the contrary a celebration of capitalism. As I say, I come down on Posner's side, though I have realized at last that a jurisprudence without a notion of rights is lunacy, a specifically Benthamite lunacy. But that I agree with many of Dick Posner's applications ofeconomics to law does not make him, or me, or Milton Friedman immune from rhetorical scrutiny. The rhetorical reading is at least richer than the reading invited by the passage itself, which claims to represent the world. Posner wants us to read philosophically, which is good. But he does not want us to read rhetorically, which is bad. As the literary critic Richard Lanham has put it (1994), we need to do both, to be educated to "toggle" between philosophical and rhetorical readings, to know what the passage says but also how it achieves its end, persuasion. The Old World "Rhetoric" Is a Good One Science is an instance of writing with intent, the intent to persuade other scientists, such as economic scientists. The study of such writing with intent was called by the Greeks "rhetoric." Until the seventeenth century it was the core of education in the West and down to the present it remains, often unrecognized, the core of humanistic learning. A science like economics should be read skillfully, with a rhetoric, the more explicit the better. The choice here is between an implicit and naive rhetoric or an explicit and learned one, the naive 5 How to Do a Rhetorical Analysis of Economics, and Why rhetoric of significance tests, say, versus a learned...


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