Law and Rhetoric: Critical Possibilities

Abstract

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.

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“…An opposite opinion about the role of rhetoric in law soon emerged, as Plato was already outraged by the abuse of rhetoric: he defined it as the persuasion of ignorant masses in courts and assemblies (Legal rhetoric, 2019). In Europe, the rhetoric that originated in Greece, was continued by the Roman Cicero and Quintilian, and became an indicator of legal education, was later suppressed by the rise of rationalism in the 17th and 18th centuries (Harrington et al, 2019), and Plato's position is also supported in the work of today's scholars, although there is also an opposition to it stating that rhetoric is an inevitable component of any legal system (Gagarin, 2017). The intersection of rhetoric and law to this day has had to endure considerable trials, changes in attitudes towards their links, different positions of scholars in assessing the significance of rhetoric in law.…”

“…Lock, who argued that eloquence and figurative language only have the purpose of 'instilling' wrong ideas, causing arguments and, thus, leading to wrong decisions. Therefore, according to the authors of the time, the immorality of rhetoric contradicts natural law, which sought to establish legal considerations in some higher order (Harrington et al, 2019). Rhetoric remains only as a separate scientific legal field.…”

“…and part of speech (introduction, narrative, proof, denial, and conclusion). All of this can help to read the legal material carefully, while the main components of rhetoric, i.e., logos, pathos and ethos, help to properly shape legal arguments (Harrington et al, 2019). People started to understand that information is a resource, not just 'empty words' as an antithesis of 'action' (Amilevičius, 2011).…”

“…A lawyer needs both of these sciences, because he needs to understand the text of the law, be able to interpret the opponent's perception of the law and create his own text at the same time. In other words, rhetoric proposes measures to link law to the social context without losing various legal nuances PUBLIC SECURITY AND PUBLIC ORDER 2021 (28) (Harrington et al, 2019). The fact that the closeness of rhetoric and law is also recognized in science is evidenced by the development of the field of legal rhetoric, which was singled out by Aristotle as one of the types of a public talk, and argumentation, as a part of rhetoric, is studied not only in a linguistic sense, but also by assessing paralinguistic elements -the volume of speech, intonations (Kjeldsen; Eckstein), or even the influence of non-verbal language on the strength of argumentation (Gelang), not to mention argumentation theories (Rapp, Wagner).…”

“Governing discourses” in Canadian environmental assessment: A critical discourse analysis of climate change in the Northern Gateway Pipeline review process

“…For example, Volume 2 of its report, Considerations (NEB 2013b), expresses its judgements prefaced with the phrase "the Panel finds that" 287 times, thereby emphasizing the definitive, ostensibly evidence-based nature of the JRP's expert judgement through repetition. In the field of rhetoric, these semiotic forms of authoritative self-representation are analyzed as instances 'ethos'-a type of "proof," in Aristotelian terms-that speakers draw upon to support claims through the reinforcement of their authority or character (Paso 2014;Toye 2013;Harrington, Series, and Ruck-Keene 2019). From a Foucauldian perspective (1980), the JRP affirms its status as a social actor capable of "distinguish[ing]" truth, and in the context of providing its EA recommendation, the JRP itself functions as a "mechanism" for Cabinet to better distinguish between multiple social actors' competing truth claims.…”