Rhetorical Criticism and the Law: questions of form and content

The readings for the next two weeks deal with the concept of law as a collection of rhetorical messages. This is very different from the conventional, and more metaphysical, understanding of the law.

Put another way, traditional legal studies address the CONTENT of the law, while a rhetorical study of law concentrates on FORM as well as content. The distinction between form and content (and the ultimately problematic nature of that distinction) is addressed in this reading from the syllabus. Two particularly important passages from this section are:

First, the notion that, even though we divide form and content, they are inseparable and mutually dependent:

The divide between form and content is always an artificial and conditional one, since ultimately attempting to make this division reveals the fundamentally indivisible nature of verbal expression and ideas. For example, when students were asked to perform translations as rhetorical exercises, they analyzed their compositions in terms of approximations, since it is impossible to completely capture the meaning and effect of a thought expressed in any terms other than its original words.

Second, that the WAY we say something ultimately influences the content itself:

...rhetoricians divided form and content not to place content above form, but to highlight the interdependence of language and meaning, argument and ornament, thought and its expression. It means that linguistic forms are not merely instrumental, but fundamental—not only to persuasion, but to thought itself.

In this class, we are trying to discover the various ways in which the phrasing, imagery, and unspoken assumptions in the utterances and texts that constitute "The Law" ultimately influence the way "audiences" (judges, advocates, the people) interpret and act upon laws.

Gerald Wetlaufer, in your assigned article "Rhetoric and its Denial in Legal Discourse," lists the following "rhetorical" commitments that participants in the field of law share. He lists commitments:

--to a certain kind of toughmindedness and rigor
--to relevance and orderliness in discourse
--to objectivity
--to clarity and logic
--to binary judgment
--to the closure of controversies
--to hierarchy and authority
--to the impersonal voice
--to the one right (or best) answer to questions
--to the one true (or best) meaning of texts

What I would like to suggest, and challenge you to think about, is the way in which these are commitments of TONE and not merely commitments of content. In other words, part of the rhetorical strategy of a legal advocate is not merely to BE "tough-minded" or "objective," but to SOUND "tough-minded" and "objective."

Wetlaufer has a lot more to say, which we'll address soon enough. In the meantime, you should also read the Levinson and Balkin article, comparing law to "music and other performing arts." A pat on the back and shameless praise will go to the first person who can answer the authors' question: "Why should any lawyer care in the slightest about the debates occurring in the alien field of music?"