Law as communicative praxis: toward a rhetorical jurisprudence.
Argumentation and Advocacy › Vol. 30 Nbr. 4, March 1994
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Law as communicative praxis: toward a rhetorical jurisprudence.
"It is the province of knowledge to speak and it is the privilege of wisdom to listen."
Oliver Wendell Holmes The Poet at the Breakfast Table In the recent film Mindwalk, the center of action is focused on the intellectual exchange of a poet, a scientist, and a politician. The conversation is unplanned, and often awkward, for the three characters in this film do not share the same intellectual vocabulary, but there is an unmistakable desire to both begin and continue the conversation. The conversation seems aimed toward translating a concern for the human condition into appropriate political praxis. The important theoretical moment for the film is the point at which the conversation begins. This is also the important theoretical moment for this essay. We seek to reconfigure an intellectual relation in the hope of reinvigorating a critical conversation. A debate similar to the one in Mindwalk has continued for hundreds of years in jurisprudence, or the "philosophy of law."(1) Specifically, the dialectical relation of scientist/poet has been represented by analytic philosophy/rhetorical theory. Or, in other words, philosophy and rhetoric have served as competing intellectual foundations since the time the law was first theorized. So let us begin with our conclusion: both the theory and practice of jurisprudence have changed markedly over their lengthy history. In fact, contemporary jurisprudence is such that it bears almost no intellectual relationship to the concept articulated at its origins. Perhaps this is most obvious when we realize, historically, that the theory of law and the theory of rhetoric had an almost synchronous relation. Today, however, it is a relation that is substantially ignored, and overtly denied. Gerald Wetlaufer reminds of this intellectual shift in the theory of law which, he argues, culminates in a "deeply ironic resistance to rhetoric" (1555). The difference we posit becomes clearest when one compares origins to end points. Jurisprudence was originally an intellectually holistic concept. It boldly crossed the gap from theoria to praxis and back again. For Aristotle, who represents the pragmatic synthesis of rhetoric and philosophy, conceptions of the law were informed by a confluence of dialectic, rhetoric, e...See the full content of this document
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