Law and Rhetoric: Critical Possibilities
| Author | Lucy Series,Alexander Ruck‐Keene,John Harrington |
| Published date | 01 June 2019 |
| DOI | http://doi.org/10.1111/jols.12156 |
| Date | 01 June 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 2, JUNE 2019
ISSN: 0263-323X, pp. 302±27
Law and Rhetoric: Critical Possibilities
John Harrington,* Lucy Series,* and
Alexander Ruck-Keene**
What contribution can rhetoric make to socio-legal studies? Though
now a byword for deception and spin, rhetoric was long identified with
the very substance of law and politics. Latterly radical scholars have
foregrounded an understanding of law as rhetoric in their polemics
against legal formalism, but it needs to be complemented by a critical
perspective which goes beyond simple revivalism, taking account of
rhetoric's own blind spots, inquiring into the means by which some
speakers and listeners are privileged and others excluded or silenced.
The critical potential of legal rhetoric is tested here through a review
of the developing law on mental capacity and the best interests of
people with disabilities in England and Wales. Much of what is at stake
there is properly grasped in terms of a politics of speech: who is
addressed, who can speak, who must speak, and how are they
represented in judicial and media discourse.
INTRODUCTION
Nowadays `rhetoric' is a term of abuse in legal scholarship as in wider
political discourse. A recent survey of law journal articles suggests that it is
usually counterposed, negatively, with the term `reality'.
1
Rhetoric is anti-
fact: mere ornament, lies and spin. Opponents of contemporary political
populism, for instance, impugn the idiom as much as the substance of
302
*School of Law and Politics, Cardiff University, Cardiff CF10 3AX, Wales
harringtonj3@cardiff.ac.uk seriesl@cardiff.ac.uk
** 39 Essex Chambers, London WC2A 1DD, England
alex.ruckkeene@39essex.com
We are grateful to Ambreena Manji for her comments on an earlier draft and to Erin
Thomas for excellent research work. The usual disclaimer applies. We acknowledge the
support of the Wellcome Trust for the research on which this article draws.
1 G. Watt, `Touching the Matter of Medical Law' (2018) 12 Law and Humanities 102,
at 103.
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution
and reproduction in any medium, provided the original work is properly cited.
ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)
neonationalism in the United States, Britain, and continental Europe. For
them, rhetoric describes what comes out of the heated chambers of social
media, the late-night tweets of demagogues. This scepticism and anxiety has
accompanied rhetoric since its origins in ancient Greece. It is the burden of
Plato's criticisms in the Gorgias. A tool crafted by amoral technicians and
put at the service of rabble rousers, rhetoric was no more than a `flattery' of
logic.
2
What does it mean to study of law rhetorically? Let's start with a
distinction: between rhetorical technique and rhetorical criticism. The former
chiefly includes tactics for effective persuasion ± a guide, a toolbox, a crib
for effective verbal performance: How Aristotle can Help you to Win Friends
and Influence People or The Best Man's Duties. All this has its place in
training for advocacy and public speaking, but, as socio-legal scholars, it
need not detain us too long. The latter is our sole focus here. Standing back
from verbal tactics, rhetorical criticism involves inquiry into the textual and
contextual preconditions for persuasive speech. Criticism has two senses
here: the informed and attentive reading of legal materials, as in literary or
cultural studies; but also, the engaged study of how social and political forms
are produced, reproduced, modified, and challenged in the substance of legal
speech and legal writing. To emphasize: both modes are closely intertwined.
Style, for instance, needs to be grasped as regards its formal properties, but
also politically with a view to how it sustains inequalities of voice and
power.
In the following sections we consider the origins, decline, and revival of
rhetoric generally and in law in particular. We argue that classical rhetoric
still offers useful tools to socio-legal scholars for reading the output of
courts, lawmakers, citizens, and legal activists. We note the influential turn
to classical rhetoric in the United States in the early twentieth century and
the limited purposes of that retrieval, purposes which were undermined by
the emergence of a much more wide-ranging critical rhetoric in the 1960s.
The critical challenge points to the political exclusions of classical rhetoric,
in terms of race, class, and gender. It suggests moreover a wider circle of
political concern and an augmented analytical repertoire for studying
contemporary speech in law and related domains. We then gather together
the insights of classical and critical rhetoric, deploying each in order to
illuminate struggles over speech and representation in the area of mental
capacity law. Ethical and legal debates concerning individual autonomy,
medical paternal ism, and judicial pow er, resolve into fun damentally
rhetorical questions over who speaks and how are they represented, who is
addressed and who silenced. In sum we hope to show that critical rhetorical
analysis offers a mode of accounting for law as politics, including its relation
to wider social and cultural contexts, which takes the agency of legal actors
303
2 Plato, Gorgias (1979) 463b.
ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)
To continue reading
Request your trial