LEGAL ARGUMENTATION IN THE GODWIN-MALTHUS DEBATES.

• Author: Hasian Jr., Marouf

For scholars who are interested in debating the importance of "critical rhetoric" in the field of communication (Charland, 1991; Cloud, 1994; 1998; Greene, 1998; McGee, 1990; McKerrow, 1989; Ono and Sloop, 1992, Owen & Ehrenhaus, 1993; Sandmann, 1994), one of the most important issues that has to be raised is the question of the interrelationship between material and rhetorical realities. This is an especially salient issue for legal communication scholars because most of the research in this sub-field has focused on analyses of major judicial opinions. From a critical rhetorical perspective, this emphasis on elite texts can be problematic because it obfuscates the role that "vernacular" discourse (Ono and Sloop, 1992) plays in creation of our "rules of law." Moreover, we need to reconsider the question of how much social change can take place when texts are altered, but social and material conditions remain basically the same. For example, a legal critic might use her discussion of materiality to look for t he ways in which decisions like Brown v. Board (1954) have actually influenced our notions of "separate but equal," or changed the living conditions of people of color in our society. As Wood & Cox (1993) remind us, we all live a world of "embodied lives, constrained, informed and framed by material circumstances such as living and working environments, food, and medical care--or the lacks thereof" (p. 278).

In this essay, I employ a critical legal framework that allows one to look at the relationship that exists between legal symbolic universes and the material realities of individuals and communities who have to negotiate their way through particular judicial situations. Moreover, I hope to show that the use of jurisprudential terms that look emancipatory does not always mean that actual "freedom" or "liberty" exists in the lives of everyday citizens. The symbolic world is more than simply play and fabrication, and nowhere is this more obvious than in the realm of legal argumentation, where the romantic impulses of jurisprudence cannot hide the ways people gain and suffer (Lewis, 1994). As Makau and Lawrence (1994) noted in a previous essay in this journal, "[S]tudies of judicial reasoning" show that institutions have members who often use "inventional strategies that both reflect and help create cultural norms ..." (p. 191).

In order to understand just how some of these judicial negotiations take place, I have divided this essay into four major sections. In the first segment, I discuss the relationship between law, materiality and critical rhetoric, keying on possible alterations in the way we think about ideographs (McGee, 1980) and ideology. In the second part of the manuscript, I provide a brief genealogy of the term "Necessity," including some of its political usages in the seventeenth and eighteenth centuries. The third portion of the essay then shows how some key classical liberal ideographs were deployed in the Malthus-Godwin "Poor Law" debates. Finally, in the last section of the essay, I provide a brief assessment of the potentialities of adopting critical legal perspectives.

LAW, MATERIALITY, AND CRITICAL RHETORIC

In most orthodox legal theorizing, jurisprudence is considered to be a field of scholastic inquiry, where the best theorists are able to put aside their subjective notions of ideology in their search for the true rules, principles, and standards of the law. Klinger (1994) averred that at one time "the theory of law and the theory of rhetoric had an almost synchronous relationship," but today that "relationship is substantially ignored, and overtly denied" (p. 236). Within this traditional perspective, legal argumentation may be influenced by external social disputation, but the "rule of law" is only altered by decision makers who can avoid being influenced by "politics" or "ideology." For example, Rosen (1999) has recently observed that there are those who believe that both conservatives and liberals need to follow the Founder's "original understanding" of the Constitution (p. 59).

During the last three decades, a community of scholars from the Critical Legal Studies movement (CLS) have initiated a project that critiques various forms of foundational judicial argumentation (Altman, 1990; Boyle, 1994; Fitzpatrick & Hunt, 1987; Kelman, 1987; Kennedy, 1976; Unger, 1983). In place of the traditional modes of hermeneutic inquiry, they advocate the adoption of both post-structural and post-modern perspectives as a way of unfreezing (Gordon, 1987) legal realities. Cloud (1998) once remarked that it "is incumbent upon the critic to question the interests motivating ideological choices" (p. 389), and many of the CLS members would agree with her materialistic stance. From within this radical paradigm, a scholar needs to highlight not only the political terminology that is used in particular controversies, but also the power relationships, human needs, and social conditions that exist outside the halls of academia [1] For these members of the CLS, traditional jurisprudential investigations are of ten conducted acontextually, ahistorically, and uncritically.

In the same way that some communication scholars trace ideographs, narratives, myths, characterizations, and other discursive units (Cloud, 1998; Condit & Lucaites, 1993; McGee, 1980), CLS writers track the ways in which classical liberal terms and theories are used by different jurisprudential writers in the advocacy of contradictory positions. [2] Moreover, they contend that even classical liberal protections of what appear to be absolute, universal rights turn out to be contingent, ephemeral, and contested positions. While at times members of the CLS seem to have adopted some of the vulgar Marxist approaches that see language as merely an epi-phenomenal superstructure, they nevertheless understand the importance of interrogating legal universalizations that are sometimes treated as a priori, immutable, and necessary. In the next segment of the essay, I highlight the ways that one key argumentative term--"necessity"--has been used and abused in Western jurisprudential thinking.

THE GENEALOGICAL ORIGINS OF "NECESSITY"

Those of us who live in democratic societies are constantly reminded of the political importance of "liberty," "right," "reason," and "freedom," but in the history of Western civilization the "great girders of abstraction" in the "treatises of philosophical liberalism" also included the term "Necessity" (Plumb, 1950, p. 134). Since at least as far back as the times of the ancient Greeks, various communities have been fascinated by questions involving the nature, scope, and limits of human volition. In many of these antiquated fragments, "Necessity" was depicted as the daughter of Zeus or Chronos, weaving the set patterns for the entire world (Patch, 1935, p. 394). This was the term that was used to explain the mysterious powers that were responsible for planting in human minds ideas about causation, determinacy, and inevitability (Robinson, 1946).

In the sixteenth and seventeenth centuries, mechanical narratives were filled with conflicting scientific explanations of the linkages between "nature" and "necessity." If one learned the "causes" of a particular phenomenon, then one's epistemic knowledge could bring control and freedom from ignorance. Competing notions of "necessity" were deployed by defenders of the church, king, or "people" in the advocacy of contradictory social schemes. Armies had to be raised and taxes had to be collected. By 1674, John Milton (1898), in Paradise Lost, could confidently assert that some fiends were using "necessity, the tyrant's plea," to excuse their "devilish deeds" (p. 73).

One of the key sub-themes that occupied these denizens of the this Newtonian world was the question of whether rising populations were the boon or bane of European countries. The dominant opinion at the time was that the number of people within a country was a part of the measure of that nation's worth, a treasure that needed to be protected. Eventually this meant paying attention to both the quality and quantity of "the people." The astute politicians, merchants, and government officials were the ones who avoided turning "rich, acute, diligent and laborious" nations into countries that were populated with "slow, idle, proud, and beggarly People" (Rosenberg, 1963, p. 185).

By the middle of the eighteenth century, reformers were beginning to talk about populations filled with two types of people--those governed by "necessity," and those who had escaped nature's restrictions. As England's Lord Chancellor noted in a contract dispute in 1762, "necessitous men [sic] are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the crafty may impose upon them" (Vernon v. Bethell, p. 839). If a person was characterized as "necessitous," that meant that that particular individual lacked the willpower and self-control that was needed for rational decision making. Any Englander in this state was living in squalor, poverty, dependency, and deceit, and they were being overwhelmed by the forces of nature. They were "paupers" who drained the resources of the more "independent" yeomen.

Interestingly enough, many of these writers talked of how civilized nations needed both "drones" and "bees" to ensure equipoise. If God had created a world that would always have some "necessitous" human beings, then perhaps other citizens could create societies that were based on the immutable laws of nature. For example, Mandeville (1732), in his infamous Fable of The Bees, claimed that "a whole Nation ought never to trust any Honesty, but what is built upon Necessity; for unhappy is the People, and their Constitution will be ever precarious, whose Welfare must depend Upon the Virtues and Consciences of Ministers and Politicians" (p. 190). This famous skeptic attacked what he considered to be...