Law as communicative praxis: toward a rhetorical jurisprudence.

• Author: Klinger, Geoffrey D.

"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, ethics, politics, even poetics. Today, however, jurisprudence has been appropriated by a discrete and insular theory of law, articulated largely by the analytic/positivist/formalist tradition. As a result, contemporary jurisprudence becomes an intellectually truncated philosophy of law; indeed, it more or less operates as the "science" of law.(2) Questions of ethics and normativity, of politics and rhetoric, once the heart of the classical model of jurisprudence, are now quickly dismissed by the analytic tradition. Even Black's Law Dictionary, the central text for legal concepts and terms, demonstrates the near complete hegemony of the analytic tradition in contemporary jurisprudence. It purports to define "jurisprudence" as:

The philosophy of law, or the science which treats the principles of positive law and legal relations. In the proper sense of the word, 'jurisprudence' is

the science of law, namely, that science which has for its function to ascertain the principles on which legal rules are based, so as not only to classify those rules in the proper order, and show the relation in which they stand to one another, but also to settle the manner in which new or doubtful cases should be brought under the appropriate rules. Jurisprudence is more a formal than a material science. It has no direct concern with questions of moral or political policy, for they fall under the province of ethics and legislation . . . . (emphasis added) ("Jurisprudence" 767)

The end result of the aforementioned hegemony of the analytic tradition in the theory of law is an often subtle, but unmistakable transformation in the way the law is both theorized and practiced. James Boyd White is one scholar who understands and laments this transformation. White rejects the scientific turn in the law and calls for a return to rhetorical foundations. He writes, "[L]aw is most usefully seen not, as it normally is by academics and philosophers, as a system of rules, but as a branch of rhetoric; and that rhetoric, of which law is a species, is most usefully seen not, as it normally is, either as a failed science or as the art of persuasion, but as the central art by which community and culture are established, maintained, and transformed" (298). White's work is important, not only because it recognizes the nature of the problem inherent in this shift of meaning, but also because it highlights the dialectical nature of the debates throughout history over the proper intellectual foundation for the theory and practice of law. Stanley Fish similarly calls our attention to this latter observation. Fish argues that the foundational debates in jurisprudence are a microcosm of the historical debates between philosophy and rhetoric. Indeed, he claims that even the concepts and terminology of contemporary debates about the proper foundations for legal theory and practice "are exactly those one finds in the dialogues of Plato and the orations of the sophists" (485).

While I would be hesitant to go quite as far as Fish, he highlights an important point. The foundational debates in jurisprudence have roughly oscillated between rhetorical and philosophical extremes throughout history. This is not to say that the same debate has occurred over and over again, for each historical era has unique perspectives regarding these subjects and their relations, but the contours of each of the debates seem to include similar themes. On the most general level, Stanley Fish observes that the "quarrel between rhetorical and foundational thought is itself foundational; its content is a disagreement about the basic constituents of human activity and about the nature of human nature itself" (482).

The argument we want to make is sensitive to the dialectical nature of this history. What we hope to outline in this essay is a blueprint for returning the theory of jurisprudence to rhetorical "foundations."(3) We do this by creating a synthesis of four scholars: Stephen Toulmin, Calvin Schrag, Chaim Perelman, and Kenneth Burke. We want our reader to leave with a sense that the move to analytic foundations was a choice, a choice that has certain intellectual consequences, and that returning the law to rhetorical foundations involves the acceptance of certain intellectual lessons. We hope to demonstrate these conclusions by a study of the contemporary debates that occur in jurisprudence among various "schools of thought." We then seek to recast alleged "incompatibilities" among these different perspectives in rhetorical terms. We close by briefly considering the practical implications of this shift in intellectual foundations, both for legal questions and for broader ethical, epistemological, and humane issues involved in critical inquiry, decision-making, and action.

Law As Communicative Praxis: Recovering a Moral Taxonomy

Albert Jonsen and Stephen Toulmin define moral taxonomy as "a detailed and methodical map of morally significant likenesses and differences" (14). In this regard, a moral taxonomy finds its intellectual grounding in rhetoric in that it assumes the uniqueness of individual cases in which different value claims compete. A taxonomy outlines the actual and possible outcomes of each of these individual cases.

In this sense, the law functions as a moral taxonomy. Each of the points on a moral map represents a situated discourse, or a contingent decision, one that reflects the mores of a particular culture. In the law, each case has its own character and nuance. This is why the primary tool for negotiating the intellectual relation within case law is analogical, rather than deductive (Burton, Legal Reasoning 25-40). Legal precedents serve as guides rather than as timeless answers. Each case is an exercise in what philosopher Calvin Schrag calls "communicative praxis."(4) This concept represents a concern for language, practical wisdom, and the social contingency of both. Importantly, Schrag contends that the utility of such concepts "have been suppressed in their formalized scientific and philosophical usages" (18). Thus, the simple conclusion that law is an exercise in situated communication is one that has been substantially ignored since the analytic turn in jurisprudence.

Chaim Perelman, in much of his work, attempted to link the concepts of communication and rhetoric with those of jurisprudence, justice, and law. Perelman was concerned primarily with the similarity in the type of probabilistic reasoning emblematic of rhetoric, and the practical reasoning utilized by judges in crafting their decisions. Perelman notes, "The role of argumentation and rhetoric grows with every controversy in which self-deliberation and the interchange of thoughts help to achieve a reasonable decision" (Justice 120-21).

Conflicts in law are more than just scientific puzzles that can be solved in the abstract, but rather they arise out of, and stay closely linked with human affairs. These conflicts represent clashes between different interpretations of relevant principles, statutes, cases, and the like. These principles, statutes and cases, in turn, are not the product of divine intervention with timeless legitimacy, but they are the product of a contingent social paradigm.(5) They arise as a reflection of the values that a...