Legal Rhetoric Define

Classical rhetoricians approached the problem of invention through the use of topoi or themes. Topics are things to talk about. The Greek word topos literally means “place”. The spatial metaphor of place has a number of interlocking meanings and evocations. First, topics are places from which to argue. Second, subjects are “commonplaces,” that is, concepts, themes, or maxims prevalent in culture or associated with wisdom distilled in common sense. Third, topics such as drawers or drawers in which situations and events can be filed – that is, located, filed and organized in their rightful place. Fourth, Aristotle suggested that themes corresponded to places in the mind from which various arguments could be recovered. (6) Finally, just as things look different in different places, questions can be thought of as a perspective or as a way of seeing things. (7) In two cases in the late 1980s, the House of Lords was confronted with the legal vacuum identified with regard to decision-making for persons without legal capacity.

103 The cases involved proposals to sterilize incapable adult women. In both cases, the court`s decision was effectively determined by medical opinion by imposing bolam as the best interests test. This step was made plausible (or “represents,” a productive ambivalent term we use below) based on the presentation of the situation of P and P itself. Thus, the need to justify irreversible sterilization – particularly uncontrolled sexual appetite and inability to practice contraception consistently – stemmed from the defective and vulnerable state of P. 104 As noted by the classical authors, physical performance (actio) can make an important contribution to persuasion. But in these cases, P has departed from the ideally autonomous, capable, masculine body adopted by classical law and rhetoric. Instead, as Judith Butler`s work on the performative nature of gender and sexuality suggests, their supposed physical state meant that they had no authority (ethos) and were excluded from participation in the process. 105 Little or no attention was paid to their personal wishes or perspectives, not to mention the gaps in social and medical care that left them vulnerable to abuse and unwanted pregnancies. 106 In short, the thematic structure of the law is integrated into its legal character. Each category or doctrinal distinction can serve as a specific topic for formulating and discussing legal issues. What looks like the development of teaching from one point of view can be seen as the use of subjects from another point of view. We can redescribe the techniques of precedent manipulation, reconciliation, subordination, discernment and exclusion in this light.

The preceding arguments involve the use of existing topics or the creation of new topics. For example, a new question is created when a material factual difference underlies a doctrinal distinction that controls the application of the law in subsequent cases. More generally, when the law creates a new distinction or creates a new category, it also creates a new subject for legal analysis and problem-solving. This understanding of law as an argument and realization also refers primarily to how rhetoric indexes the politics of law. Let`s go back to Plato. For him, the government of the polis was better subject to indisputable principles, unlocalized arguments and conditional decisions. 34 As Jacques Rancière said, Plato proposed an “archipolitics” in which the noisy comings and goings of debate and disagreement would be extinguished in favor of metaphysical contemplation. 35 This desire for order has since animated the plans of rationalists who seek to subordinate politics to one philosophy or another. A counter-formation associated with Aristotle favours republican forms of government for which arguments and therefore rhetoric are of central importance. Consequently, not all disputes can or should be resolved by rigorous philosophical logic. 36 Innovation and improvisation in responding to unforeseen situations are important values that are realized through contextual considerations. Moreover, if community life is the ultimate end of the person, then public debate about the well-being of the community is the highest calling for its citizens, and the ability to speak and be heard is the key sign of their belonging to the political community.

37 Legal semiotics has generally dealt with one of the central tasks of legal analysis and argumentation – the justification and application of legal doctrines. But my point is more general; What applies to justification work also applies to other legal analysis tasks. We can find current topics and reflections used in other types of legal reasoning and problem solving. Rhetoric is therefore much more than flattery and conviviality to the public; this is the very substance of democratic life, at least as it is understood in classical Athens (a limitation to which we shall return). As a result, the stifling of debate poses a threat not only to the individual, but to the entire polis. 38 The republican revivals in Renaissance and Enlightenment Europe and at the founding of the United States of America were characterized by an appreciation of public discourse in these terms. 39 Contrary to the twentieth-century conception of politics as domination, Hannah Arendt saw it as a public space in which people articulate and clarify common concerns, albeit from different angles. 40 Who can speak when and what was and is a matter of constitutional importance in this exemption. The rhetoric deals intensely with these issues. But, as we have seen, he does not place them primarily in terms of abstract principles, but in terms of concrete verbal and textual practices and the legal “infrastructure” that underpins them. As such, rhetoric participates in the “artificiality” that Arendt considered a necessary and valuable feature of public space. 41 And if we devote ourselves to the artifice of discourse, we can find an appropriate way to study and criticize the law politically.

These accusations have been reinforced in jurisprudence by Peter Goodrich in his critique of Chaim Perelman`s new rhetoric, which is itself a great attempt to revive Aristotelian traditions as a means of studying modern reasoning. 57 Although it refers to the “historical and practical human character of reason”, it presupposes a public conception of the law that is imperfect like those just discussed. 58 According to Perelman, the legal and extrajudicial audiences of the law are already constituted, homogeneous communities of values. Their acceptance of the legitimacy of the law is given. It remains for the rhetorical critic to study the effective communication techniques deliberately used by lawyers to promote greater adherence to legal values and thus to reach certain conclusions. As Goodrich notes, this is methodologically unambitious and politically conservative. 59 Ultimately, the use of classical rhetoric solely as a tool for studying contemporary language is anachronistic and inappropriate for the purposes of social law scholars. It cannot grasp the dynamics of institutional power and social inequality that alter the content of legal semantics.

60 More is needed. But those who identify rhetoric primarily with ornament, passion, flimsy arguments, and deception, and even those who defend rhetoric as a desirable alternative or complement to legal argumentation, do not do justice to the reported importance of rhetoric in antiquity as a means of public deliberation on public issues under conditions of uncertainty. Despite Plato`s famous critique of rhetoric as mere flattery, the ancient world understood very well that rhetoric had both a substantial and stylistic dimension; Therefore, the usual association of rhetoric with the purely stylistic aspects of consultation is completely misleading. In this essay, I would like to focus on the substantive aspects of rhetoric and how they remain central to the contemporary work of lawyers, judges, and law students. Second, we can explore how the comprehension tools we use to formulate and discuss legal issues might limit how we understand and evaluate the social world. As heuristics for analysis, topics reinforce and limit our legal imagination. Just as no tool is equally good for all purposes, no set of topics is equally useful for identifying and solving all problems. Limiting it to a number of issues can lead to an impoverished conception of the situation that serves neither the interests of truth nor those of justice. When we are limited in the issues that concern us, we limit not only our legal ideas, but also our ability to recognize our own limitations. As the old saying goes, when all you have is a hammer, everything starts to look like a nail. Take, for example, the interpretation of statutes. It is no coincidence that Duncan Kennedy`s original formulation of legal semiotics was inspired by Karl Llewellyn`s famous article on legal construction.

(20) Llewellyn enumerated many well-known canons of legal construction and showed how they could be put in place for and against. For each canon of interpretation, Llewellyn argued that there was an opposite canon arguing in the opposite direction. Llewellyn`s argument has often been taken as evidence of the vagueness and therefore uselessness of the argument by the canon.