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Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal LifeAuthor(s): James Boyd WhiteSource: The University of Chicago Law Review, Vol. 52, No. 3 (Summer, 1985), pp. 684-702Published by: The University of Chicago Law Review

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Law as Rhetoric, Rhetoric as Law: TheArts of Cultural and Communal LifeJames Boyd Whitet

In this paperI shall suggestthat law is most usefullyseen not,as it usuallyis by academicsand philosophers,as a systemof rules,but as a branchof rhetoric;and that the kind of rhetoric of whichlaw is a species is most usefully seen not, as rhetoric usually is,either as a failed science or as the ignobleart of persuasion,but asthe central art by which communityand culture are established,maintained,and transformed.So regarded,rhetoric is continuouswith law, and like it, has justice as its ultimate subject.I do not mean to say that these are the only ways to under-stand law or rhetoric.There is a place in the world for institutionaland policy studies, for taxonomies of persuasivedevices, and foranalysesof statistical patternsand distributiveeffects.But I thinkthat all these activities will themselves be performedand criticizedmoreintelligentlyif it is recognized hat they too arerhetorical.Asfor law and rhetoric themselves, I think that to see them in theway I suggest is to make sense of them in a morenearlycompleteway, especially from the point of view of the individual speaker,the individualhearer,and the individualjudge.

ILet us beginwith the idea that the law is a branch of rhetoric.Who, you may ask, could ever have thought it was anythingelse?The ancient rhetoricianGorgias(in Plato's dialogueof that name)

defined rhetoric as the art of persuading he people about mattersof justice and injustice in the public places of the state,1and onecould hardlyimaginea more compendiousstatement of the art of

t Professor of Law and Professorof English Languageand Literature,UniversityofMichigan. am grateful orhelpfulcommentsby AltonBecker,Lee Bollinger,StanleyFish,Bruce Gronbeck,L.H. LaRue,RichardLempert,Sallyanne Payton, TerranceSandalow,FrederickSchauer, Stephen Shiffrin,Philip Soper, Cass Sunstein, Joseph Vining, andChristinaWhitman.This article is a versionof a chapterin my forthcomingbook,HERA-CLES'BOW: ESSAYS ON THE RHETORICAND POETICS OF THE LAW.1 PLATO,GORGIAS52e, 454b. For further discussion, see my article, The Ethics of Ar-gument: Plato's Gorgias and the Modern Lawyer, 50 U. CHI.L. REV.849 (1983).

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Law as Rhetoric, Rhetoric as Lawthe lawyerthan that. A modern law school is, among other things,a school in those arts of persuasionabout justice that are peculiarto, and peculiarly effective in, our legal culture. And the commit-ment of the rhetorician to the cause of his client presents him, inthe ancient and the modern world alike, with serious (and similar)problemsof intellectual and personal integrity. How can it be thatlaw was ever regardedas anything but rhetoric?The answerlies, I think, in two traditions-one old, the othernew-which I can summarizethis way. The older (primarilyJudaicand Christian)tradition saw the law as a set of authoritative com-mands, entitled to respect partly from their antiquity, partly fromtheir concordancewith the law of nature and of God. In this viewlaw is not rhetoric but authority. The newer tradition is that ofinstitutional sociology, the object of which is to describe and ana-lyze the structure and function of various social institutions, so faras possible, from the point of view of "value-free" social science.These institutions may of course have certain kinds of political au-thority internal to the culture in which they are found, but theyare normally not seen as sources of true moral authority, as lawonce was. With the apparent death of the first tradition in mostWesternEuropean(but not Islamic!)countries,we are left with thesecond, and tend to view law as a system of institutionally estab-lished and managedrules. Actually, as this conception has workeditself out in practice it has led to a kind of substantive neutrality(or emptiness) that makes it natural once againto see a connectionbetween modern law and ancient rhetoric, and to face-as Platodid in the Gorgias-the great question of what talk about justicecan mean in a world as relativistic, adversarial,competitive, anduncertain as ours is and Plato's was.As a result, the law is at present usually spoken of (by aca-demics at least) as if it were a body of more or less determinaterules, or rules and principles,that are more or less perfectly intelli-gible to the trained reader. Law is in this sense objectified andmade a structure.The question "Whatis law?"is answeredby de-fining what its rules are, or by analyzing the kinds of rules thatcharacterize it. The law is thus abstracted and conceptualized:H.L.A. Hart's majorbook on jurisprudencewas appropriatelyenti-tled The Concept of Law.2 Sophisticated analysis of law from thispoint of view distinguishes among various kinds of legal rules andamong different sets or subsets of legal rules:substantive rules are

2 H.L.A. HART, THE CONCEPT F LAW(1961).

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The University of ChicagoLaw Reviewdistinguishedfrom proceduralor remedialrules, or primaryrulesfrom secondaryrules, or legal rules from more generalprinciples.This idea of law and legal science fits with, and is perhapsde-rived from, the contemporaryconception of our public politicalworld as a set of bureaucraticentities, which can be defined inWeberian terms as rationalizedinstitutions functioning accordingto ends-meansrationality.These institutions have goals, purposes,or aims, which they achieve more or less perfectly as they arestructured and managedmore or less well.In this way,the government(of which the law is a part) and infact the entire bureaucratic ystem, privateas well as public,tendsto be regarded,especially by lawyers,managers,and other policy-makers,as a machine acting on the rest of the world. This natu-rally reduces the rest of the world to the object upon which themachine acts. Human actors outside the governmentalworld aremade the objectsof manipulation hrougha series of incentives ordisincentives. Actors within the legal-bureaucratictructureeitherare "will-servers"whoseobligation s to obey the will of a politicalsuperior)or are "choice-makers"whoare in a position of politicalsuperioritychargedwith the responsibilityof makingchoices,usu-ally thought of as "policychoices,"that affect the lives of others).The choicesthemselves are likewiseobjectified: he items of choiceare broken out of the flux of experienceand the context of life sothat they can be talked about in the bureaucratic-legalmode. Thiscommits the system to what is thought to be measurable(espe-cially to what is measurable n materialways) to short-termgoals,and to a process of thought by calculation. The premisesof cost-benefit analysis are thus integral to the bureaucracyas we nor-mally imagine it. Whatever cannot be talked about in these bu-reaucraticways is simplynot talked about.Of courseall systemsofdiscourse have domains and boundaries, principles of exclusionand inclusion,but this kind of bureaucratic alk is largelyunself-conscious about what it excludes. The world it sees is its wholeworld.Law then becomes reducible to two features: policy choicesand techniquesof their implementation.Ourquestions are "Whatdo we want?"and "Howdo we get it?" In this way the conceptionof law as a set of rules mergeswith the conceptionof law as a setof institutions and processes.The overridingmetaphoris that ofthe machine; he overridingvalue is that of efficiency,conceived ofas the attainment of certainends with the smallest possible costs.This is a necessarilycrude sketch of certainways in whichlawis commonly houghtof. Laterin this paper,I will proposea differ-

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Law as Rhetoric, Rhetoric as Lawent way of conceivingof law, which I think can be both more trueto its actual nature as practiced and more valuable to us as critics.

IIBut I turn first to the meaning of "rhetoric."This term is ingreat flux, and what I say must be somewhat less dogmatic thanmy discussion of "law."It is my impressionthat rhetoric is at pre-sent usually talked about in either of two modes. The first of theseis by comparisonwith science. The main claim of science is that itcontributes to knowledge by informingus of what is knowable inthe sense that it can be demonstrated. This is true both of deduc-tive sciences, which establish propositions by demonstratingtheirentailment in certain premises,and of inductive sciences, which es-tablish, but with less certainty, propositions that can be regardedas the most complete and economical accounts of the evidenceavailable to us, and hence as presumptivelytrue. From this pointof view, rhetoric is thought of as what we do when science doesn'twork. Instead of dealing with what is "known," t deals with whatis probablythe case. Thus in Aristotle the enthymemeis defined as

a syllogism based upon propositionsthat are themselves not neces-sarily true but probable.3So regarded,rhetoric is the art of estab-lishing the probable by arguingfrom our sense of the probable.Itis always open to replacement by science when the truth or falsityof what is now merely probable is finally established.The other heading under which rhetoric is frequently dis-cussed is explicitly pejorative:rhetoricis defined as the ignoble artof persuasion.As I suggested above, this tradition has a history atleast as old as the Platonic dialogues, in which rhetoric is attackedas a false art; it is also as contemporaryas the standard moderncondemnations of government propagandaand of the kind of ad-vertising practiced by the wizards of Madison Avenue.To the extent that law is today regardedas a kind of rhetoric,these two traditions establish the terms of analysis. In the court-room the truth is never known, and each of the lawyers tries topersuade the jury not of the truth, but that his (or her) view ismore probable than the other one (or that the other side has notattained some requisite degree of probability). In doing so, eachlawyer employs untrustworthyarts of persuasionby which he seeksto make his own case, even if it is the weaker one, appear thestronger. Rhetoric, in short, is thought of either as a second-rate

3 ARISTOTLE,RHETORIC 1357a23-33.

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The Universityof ChicagoLaw Reviewway of dealing with facts that cannot really be properlyknown oras a way of dealing with people instrumentallyor manipulatively,in an attempt to get them to do somethingyou want them to do.

The tendencyto think of rhetoric as failed science is especiallypowerful in the present age, in which determined attempts havebeen made to elevate, or to reduce,virtuallyeverydisciplineto thestatus of true science. The idea of science as perfectknowledgehasof course recently been subjected to considerablecriticism, bothinternal and external.It is now a commonplace hat scientific crea-tivity is imaginative, almost poetic; that scientific knowledge isonly presumptive,not certain; and that science is a culture thattransformsitself by principles that are not themselves scientific.Yet the effort to make the languageand conventionsof science theruling model of our age, our popular religion,lives on in the lan-guageand expectationsof many people, especiallyof those who arein fact not true scientists. Much of economicdiscourse,for exam-ple, is deformedby the false claims of the discipline to the statusof perfect science, which leads to the embarrassingsituation inwhich economic speakersrepresentingdifferent political attitudescouch their differencesin scientific terms, each claimingthat theother is no true economist. This not only confuses the observerbutrenders the field of economics less intelligible than it should be,even to its participants,and it reduces importantpolitical differ-ences, which might be the topic of real conversation, o the statusof primary assumptions.

IIII shall sketch out a somewhat different way of conceivingoflaw, and indeed of governmentalprocessesgenerally:not as a bu-reaucraticbut as a rhetoricalprocess.In doing this, I shall also besuggesting a way to think about rhetoric, especially that kind ofrhetoric-I call it "constitutiverhetoric"-of whichlaw can I thinkbe seen as a species.I want to start by thinkingof law not as an objectivereality inan imaginedsocial world,not as a part of a constructedcosmology,but from the point of view of those who actually engage in its

processes,as somethingwe do and somethingwe teach. This is away of lookingat law as an activity, and in particularas a rhetori-cal activity.I want to direct attention to three related aspects of the law-yer's work.The first is the fact that the lawyer,like any rhetori-cian,must alwaysstart by speakingthe languageof his or her audi-ence, whatever t may be. This is just a version of the generaltruth

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Law as Rhetoric, Rhetoric as Lawthat to persuade anybody you must in the first instance speak alanguagethat he or she regardsas valid and intelligible. If you area lawyer,this means that you must speak either the technical lan-guage of the law-the rules, cases, statutes, maxims, and so forth,that constitute the domain of your professionaltalk-or, if you arespeaking to jurorsor clients or the public at large, some version ofthe ordinaryEnglish of your time and place. Law is in this sensealways culture-specific. It always starts with an external, empiri-cally discoverable set of cultural resources into which it is anintervention.This suggests that one (somewhat circular) definition of thelaw might be the particularset of resources made available by aculture for speech and argumenton those occasions, and by thosespeakers, we think of as legal. These resources include rules, stat-utes, and judicial opinions, of course,but much more as well: max-ims, general understandings, conventional wisdom, and all theother resources, technical and nontechnical, that a lawyer mightuse in defining his or her position and urging another to acceptit.4 To define "the law" in this way, as a set of resources forthought and argument, is an application of Aristotle's traditionaldefinition of rhetoric, for the law in this sense is one set of those"means of persuasion" that he said it is the art of rhetoric todiscover.5In the law (and I believe elsewhere as well), these means ofpersuasion can be described with some degree of accuracy andcompleteness, so that most lawyers would agree that such-and-such a case or statute or principle is relevant, and another is not.But the agreementis always imperfect:one lawyerwill see an anal-ogy that anotherwill deny, for example.And when attention shiftsto the value or weight that different parts of the material shouldhave, disagreement becomes widespread and deep. Ultimately,then, the identity, the meaning, and the authorityof the materialsare always arguable, always uncertain. There is a sense in which

4In light of the currentview of law as a set of rules, it is worthstressingthat whilemuch legal argument naturally takes the form of interpreting rules, or redefining them, andwhile some rules are obviously of greater authority than others, the material as a whole isnot structured as a set of rules with a hierarchical or other order, nor is it reducible to a setof rules. The rule is often the subject as well as the source of argument, with respect to itsform, its content, and its relation to other rules. Perhaps the best way to understand what arule is, as it worksin the legalworld, is to think of it not as a commandthat is obeyedordisobeyedbut as the topic of thoughtand argument-as one of manyresourcesbroughttobearby the lawyerand others both to define a questionand to establish a wayto approachit. 5 ARISTOTLE,HETORIC355b26-27.

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The University of ChicagoLaw Reviewthe materials can be regarded n the first instanceas objective,ex-ternal to the self; but they are alwaysremadein argument.Theirdiscoveryis, in a sense, an empirical process, their reformulationand use an inventive or creative one.This suggests that the lawyer'sworkhas a second essential el-ement, the creative process to which I have just alluded. For inspeakingthe languageof the law, the lawyermust alwaysbe readyto try to changeit: to add or to drop a distinction,to admit a newvoice, to claim a new source of authority,and so on. One'sperform-ance is in this sense alwaysargumentative,not only about the re-sult one seeks to obtain but also about the version of the legal dis-course that one uses-that one creates-in one's speech andwriting.That is, the lawyeris alwayssayingnot only, "Hereis howthis case should be decided,"but also, "Here-in this language-isthe way this case and similar cases should be talked about. Thelanguage I am speaking is the proper language of justice in ourculture."The legal speakeralwaysacts upon the languagethat heor she uses, to modifyor rearrange t; in this sense legal rhetoricisalways argumentativelyconstitutive of the languageit employs.The third aspect of legal rhetoricis what might be called itsethical or communalcharacter,or its socially constitutive nature.Everytime one speaksas a lawyer,one establishesfor the momenta character-an ethical identity, or what the Greeks called anethos-for oneself, for one's audience, and for those one talksabout, and in addition one proposesa relation amongthe charac-ters one defines. Onecreates,or proposesto create,a communityofpeople, talking to and about each other. The lawyer's speech isthus always implicitly argumentative not only about the re-sult-how should the case be decided?-and about the lan-guage-in what terms should it be definedand talked about?-butalso about the rhetoricalcommunityof which one is at that mo-ment a part. The lawyer is always establishing in performancearesponse to the questions, "What kind of communityshould we,who are talkingthe languageof the law, establish with each other,with ourclients, and with the rest of the world?What kind of con-versation should the law constitute, should constitute the law?"

Each of the three aspects of the lawyer'srhetorical ife can beanalyzedand criticized: he discourseone is given by one's cultureto speak;the argumentativereconstitutionof it; and the argumen-tative constitution of a rhetoricalcommunity in one's speech orwriting.The study of this process-of constitutive rhetoric-is thestudy of the ways we constitute ourselvesas individuals,as com-munities,and as cultures,wheneverwe speak.To put this another

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Law as Rhetoric, Rhetoric as Lawway, the fact that the law can be understood as a comprehensiblyorganized method of argument, or what I call a rhetoric, meansthat it is at once a social activity-a way of acting withothers-and a cultural activity-a way of acting with a certain setof materials found in the culture. It is always communal,both inthe sense that it always takes place in a social context and in thesense that it is always constitutive of the community by which itworks.Both the lawyerand the lawyer'saudience live in a worldinwhich their languageand communityare not fixed and certain butfluid, constantly remade,as their possibilities and limits are tested.The law is an art of persuasionthat creates the objects of its per-suasion, for it constitutes both the community and the culture itcommends.This means that the processof law is at once creative and edu-cative. Those who use this languageare perpetually learningwhatcan and cannot be done with it as they try-and fail or suc-ceed-to reach new formulations of their positions. It also meansthat both the identity of the speakers and their wants are in per-petual transformation.If this is right, the law cannot be a tech-nique, as the bureaucraticmodel assumes, by which "we"get whatwe "want,"for both "we"and our "wants" are constantly remadein the rhetoricalprocess. The idea of the legal actor as one who iseither making policy choices himself (or herself) or obeying thechoices made by others is inadequate,for he is a participantin theperpetual remaking of the language and culture that determineswho he is and who we are. The law is not merely a bureaucracyora set of rules, but a community of speakers of a certain kind: aculture of argument, perpetually remade by its participants.

All three of these aspects of the lawyer'swork flow from thefact that the law is what I have called culture-specific, hat is, thatit alwaystakes place in a cultural context into which it is alwaysanintervention. But it is in a similar way socially specific: it alwaystakes place in a particularsocial context, into which it is also anintervention. By this I mean nothing grand but simply that thelawyer respondsto the felt needs of others,who come to him or herfor assistance with an actual difficulty or problem. (These feltneeds may of coursebe partly the productof the law itself, and thevery "intervention" of the law can create new possibilities formeaning, for motive, and for aspiration.)From this point of view,the law can be seen, as it is experienced,not as a wholly indepen-dent system of meaning, but as a way of talking about real eventsand actual people in the world. It is a way of telling a story aboutwhat has happened in the world and claiming a meaning for it by

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The University of ChicagoLaw Reviewwritingan endingto it. The lawyeris repeatedly saying,or imagin-ing himself or herself saying: "Here is 'what happened,' here is'what it means,' and here is 'why it means what I claim.'" Theprocess is at heart a narrativeone because there cannot be a legalcase without a real story about real people actuallylocated in timeand space and culture. Some actual person must go to a lawyerwith an account of the experienceupon which he or she wants thelaw to act, and that account will alwaysbe a narrative.The client'snarrative is not simply accepted by the lawyer but subjected toquestioningand elaboration,as the lawyersees first one set of legalrelevances,then another.In the formallegal process,that story isthen retold, over and over, by the lawyerand by the client and byothers, in developingand competingversions,until by judgmentoragreementan authoritative version is achieved.This story will inthe first instance be told in the language of its actors. That iswhere the law begins;in a sense that is also where it ends, for itsobject is to provide an ending to that story that will work in theworld. And since the story both begins and ends in ordinary an-guageand experience, he heart of the law is the processof transla-tion by which it must work, from ordinarylanguageto legal lan-guage and back again.The languagethat the lawyeruses and remakesis a languageof meaningin the fullest sense. It is a languagein which our per-ceptions of the natural universe are constructed and related, inwhich our values and motives are defined,and in which our meth-ods of reasoningare elaboratedand enacted.By definingroles andactors, and by establishing expectations as to the propriety ofspeech and conduct, it gives us the terms for constructinga socialuniverse.Lawalways operatesthrough speakers ocated in particu-lar times and places speakingto actual audiences about real peo-ple; its languageis continuous with ordinary language;it alwaysoperatesby narrative; t is not conceptual n its structure; t is per-petuallyreaffirmedor rejectedin a socialprocess;and it contains asystem of internal translation by which it can reach a range ofhearers.All these things mark it as a rhetoricalsystem.

IVWhat I have said means something, I think, about what wecan mean by "rhetoric"as well as what we mean by "law."What Ihave been describingis not merelyan art of estimatingprobabili-ties or an art of persuasion,but an art of constitutingculture andcommunity.It is of this kind of rhetoricthat I think the law is abranch.

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Law as Rhetoric, Rhetoric as LawLet me approachwhat I mean about rhetoric with a primitiveexample, meant to suggest that what I call "constitutive rhetoric"is actually the set of practices that most fully distinguish humans

from other animals. Imaginea bear fishing for salmon in a river ofthe great Northwest. What is it doing? "Fishing,"we say. Now im-agine a man fishing in the same river for the same fish. What is hedoing? "Fishing,"we say; but this time the answer has a differentmeaning and a new dimension, for it is now a question, as it wasnot before, what the fishing means to the actor himself. If a persondoes it, it has a meaningof a kind it cannot otherwisehave. Todaythe meaning may well be that of sentimental escape to the wilder-ness by one sportily clad in his L.L. Bean outfit, demonstratinghisplace in a certain social class; but once-for a Native Americansay-it might have been a religious meaning.Whenever two people come together to fish (or hunt, or any-thing else), they necessarily share the question of the meaning ofwhat they do. Their views may differ, and their differences mayreach the meaning of their relationship as well as that of theircommonactivity. There is, for example, the question of dominanceor equality. Is one following the other, or are they in some realsense together? Do their views of the meaning of what they do co-incide, and, if so, how do they know? Or is there tension or dishar-mony between them, and, if so, what is to be done about that?How long will the terms upon which they are proceeding remainstable? The establishment of comprehensiblerelations and sharedmeanings, the making of the kind of communitythat enables peo-ple to say "we"about what they do and to claim consistent mean-ings for it-all this at the deepest level involves persuasionas wellas education, and is the province of what I call constitutiverhetoric.Let me expand my example a bit. Think of the kind of opposi-tion that begins the Iliad, the opposition between two male humanbeings quarrelingover a female. Fromone point of view, this is justlike two other male mammals doing the same thing, say two malebears or dogs. But from another point of view there is a completelynew dimension added to the dispute:the question of what it meansfrom each point of view, including that of the woman. It is fromsuch a dispute, and from the claims of competing meaningsfor theevents involved, that arose both the TrojanWar (at least in Greekmyth) and-much more importantly-from our point of view theIliad itself. Agamemnonand Achilles are engaged in a struggle.Atsome level, the struggle is an animal one, with will opposed to will.It is also a human struggle,a struggleover what ought to be done,

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The University of ChicagoLaw Reviewand why, and this is a struggle over meaning:what it means forAgamemnonto be deprived of a prize, or of this woman, or forAchilles to be deprivedof a prize, or of this woman.(At momentsin this poem, attention is directed to what such struggles meanfrom the point of view of the women themselves, for example inthe cases of Helen and Andromache.6)Oncethe quarrelhas begunand Achilles has separatedhimselffrom the other Achaeans,the question shifts to what that means,and, as time goes on, to how the quarrelmight be made up. "Mak-ing up" a quarrelis a process in which the parties gradually,andoften with great difficulty,come to share a commonlanguageforthe descriptionof their commonpast, present, and future, includ-ing an agreementas to what will be passed over in silence. In thisprocess,they reestablish themselvesas a communitywith a cultureof their own. In the Iliad, Agamemnon'sattempts to make up thequarrelfail; the communitybetween the two antagonistsis neverreestablished, even when Achilles returns to the battle (becausethis happens for a differentreason, the death of Patroclus).Or think of another great literary moment, the beginningofParadise Lost, when Satan and the other rebelliousangels try toestablish a communityof their own in Hell, based upon a new lan-guageof valueand meaning.Their incredibleattempts at self-crea-tion and self-assertion have won them the admirationof manyreaders from Shelley onwards;some even see Satan as the unac-knowledgedhero of the poem. ("Themind is its own place, and init self / Can make a Heav'n of Hell, a Hell of Heav'n."7)But thepoem shows that no community can be built upon the languagethat they use, a language of selfishness and hatred-a languagethat in fact made a "Hell of Heav'n"-even by figureswith suchenormouscapacities of imaginationand will as Milton representsthe angels to have. Comparewith this the efforts of the partici-pants at our own Constitutional Convention in the summer of1787,who were also tryingto find or makea language,and a set ofrelations, upon which a new communitycould be made and uponwhicha new life couldproceed.Their argumentscan be read as thegradualattempt to make a languageof sharedfactualassumptions,shared values, shared senses of what need and what need not besaid-of what could be said ambiguously,of what they could notresolve at all-resulting in a text that they could offer to othersasthe termson which a new communitymightbegin its tentative life.

6 HOMER, ILIADbk. III, 11.121-244;bk. VI, 11.342-58,404-39.7 JOHN MILTON,PARADISELOST bk. I, 11.255-56 (1st ed. London 1667).

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Law as Rhetoric, Rhetoric as LawWhat kind of community shall it be? How will it work? Inwhat languageshall it be formed?These are the great questions ofrhetorical analysis. It thus always has justice and ethics-and

politics, in the best sense of that term-as its ultimate subjects.The domain of constitutive rhetoric, as I think of it, thus in-cludes all languageactivity that goes into the constitution of actualhuman cultures and communities. Even the kind of persuasionPlato called dialectic, in which the speaker is himself willing, eveneager, to be refuted, is in this sense a form of rhetoric,for it is theestablishment of community and culture in language.V

Like law, rhetoric invents; and, like law, it invents out ofsomething rather than out of nothing. It alwaysstarts in a particu-lar culture and among particular people. There is always onespeaker addressingothers in a particularsituation, about concernsthat are real and importantto somebody,and speakinga particularlanguage. Rhetoric always takes place with given materials. Onecannot idealize rhetoric and say, "Here is how it should go on ingeneral."As Aristotle saw-for his Rhetoric is, for the most part, amap of claims that are persuasive in his Greek world-rhetoric isalways specific to its material. There is no Archimedeanpoint fromwhich rhetoric can be viewed or practiced.This means that the rhetorician-that is, each of us when wespeak to persuade or to establish community in other ways-mustaccept the double fact that there are real and important differ-ences among cultures and that each person is to a substantial de-gree the productof his or her own culture.The rhetorician, ike thelawyer, is engaged in a process of meaning-makingand commu-nity-building of which he or she is in part the subject. To do thisrequires him or her to face and to accept the condition of radicaluncertainty in which we live: uncertainty as to the meaning ofwords, uncertainty as to their effect on others, uncertainty as toour own character and motivations. The knowledge out of whichthe rhetorician ultimately functions will not be scientific or theo-retical but practical, experiential-the sense that one knows howto do things with language and with others. This is, in fact, ourearliest social and intellectual knowledge, the knowledge we ac-quire as we first begin to move and act in our social universe andlearn to speak and understand. It is the knowledgeby which lan-guage and social relations are made.The rhetoricianthus begins not with the imagined individual

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The University of Chicago Law Reviewin imagined isolation (as Hobbes8or Locke9does), and not withthe self, isolated from all of its experienceexcept that of cogitation(as Descartes does'0), but where Wittgenstein tells us to begin,with our abilities of language,gesture,and meaning."This knowl-edge is itself not reducibleto rules or subjectto expression n rules,though many analysts wish that it were;ratherit is the knowledgeby which we learn to manage, evade, disappoint, surprise, andplease each other, as we understand the expectations that othersbringto what we say. This knowledge s not provablein the scien-tific sense, nor is it logicallyrigorous.For these reasons,it is unset-tling to the modern scientific and academic mind. But we cannotgo beyond it, and it is a mistake to try. In this fluid world withoutturf or ground,we cannot walkbut we can swim. And we need notbe afraidto do this-to engagein the rhetoricalprocessof life-forall of us, despite our radicaluncertainties,alreadyknow how to doit. By attending to our own experience,and that of others, we canlearn to do it better if we try.

VIWhat would be the effects of thinking of law in this literaryand rhetoricalway?If, as I think, it is more true to the experiencesof those engagedin the activity of law than the standardconcep-tual accounts,it should in the first place lead to a richerand moreaccurateunderstandingof and controloverwhat we do. The law issomething that lawyers themselves make all the time, wheneverthey act as lawyers,not somethingthat is made by a political sov-ereign.From this point of view, the law can be defined as the cul-ture that we remake wheneverwe speak as lawyers.To look at lawthis way is to direct one's attention to places that are normallypassedover:to the way in whichwe createnew meanings,new pos-sibilities for meaning,in what we say;to the way in which our liter-ature can be regardedas a literatureof value andmotive and senti-ment; to the way in which our enterpriseis a radicallyethical one,by which self and communityare perpetuallyreconstituted;and tothe limits that our nature and our culture, our circumstancesandour imagination,place on our powersto remake our languagesand

communitiesin new forms.To see law this way may also lead to a differentway of reading8 THOMAS HOBBES,LEVIATHAN h. 13 (London 1651).9 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT bk. II, chs. 1-3 (London 1690).10 RENA DESCARTES, DISCOURSDE LA M.THODE pt. 4 (Leiden 1637).1 LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS passim (1953).

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Law as Rhetoric, Rhetoric as Lawand writing it. As I suggested above, the United States Constitu-tion can be regardedas a rhetorical text: one that establishes a setof speakers, roles, topics, and occasions for speech. So understood,many of its ambiguities and uncertainties become more compre-hensible, for we can see the text as attempting to establish a con-versation of a certain kind and its ambiguities as ways of at oncedefining and leaving open the topics of the conversation.'2A stat-ute can be read similarly, not as a set of orders or directions orcommands, but as establishing a set of topics, a set of terms inwhich those topics can be discussed, and some generaldirections asto the process of thought and argumentby which the statute is tobe applied. Similarly, the judicial opinion, often thought to be theparadigmatic form of legal expression, might be far more accu-rately and richly understood if it were seen not as a bureaucraticexpression of ends-means rationality but as a statement by an in-dividual mind or a group of individual minds exercising their re-sponsibility to decide a case as well as they can and to determinewhat it shall mean in the languageof the culture. And the view oflaw as constitutive rhetoricshould define the lawyer'sown workasfar less manipulative,selfish, or goal-orientedthan the usual mod-els, and as far more creative, communal, and intellectuallychallenging.Fromthe point of view of the nonlawyer,this way of regardinglaw as rhetoric invites a certain kind of reading and of criticism,for it invites you to test the law in part by asking whether yourown story, or the story of another in whom you have an interest, isproperly told by these speakers and in this language. The basicidea of the legal hearing is that two stories will be told in opposi-tion or competition and a choice made between them. On the rhe-torical view of law suggested here, you are entitled to have yourstory told in your own language(or translated into it), or the law isfailing. It is the role of the jury to insist upon the ultimate trans-latability of law into the common languageof the culture. To ask,"Whatplace is there for me in this language,this text, this story?,"and to feel that you have a right to an answer, is a very differentway of evaluating law from thinking of it as a mechanism for dis-tributing social goods. The central idea is not that of goods, but ofvoices and relations: what voices does the law allow to be heard,what relations does it establish among them? With what voice, orvoices, does the law itself speak? These are the questions with

12 For further discussion, see my WHENWORDSLOSETHEIRMEANINGh. 9 (1984) andTHE LEGAL MAGINATION15-40 (1983).

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The University of ChicagoLaw Reviewwhich rhetorical criticismwould begin.At a more global level, we can see that the current habit ofregarding aw as the instrumentby which "we"effectuate "ourpol-icies" and get what "we want" is wholly inadequate.It is the truenature of law to constitute a "we" and to establish a conversationby which that "we" can determine what our "wants" are andshouldbe. Ourmotives and values arenot, in this view,to be takenas exogenousto the system (as they are taken to be exogenoustoan economic system) but are in fact its subject. The law shouldtake as its most central question what kind of community weshould be, with what values, motives, and aims. It is a process bywhich we make ourselvesby makingour language.This means that one question constantly before us as lawyersis what kind of culture we shall have, as well as what kind of com-munity we shall be. What will be our language of approvalanddisapproval, praise and blame, admiration and contempt? Whatshall be the terms by which we identify and refine-by which wecreate-our motives and combine them into coherent wholes? Thisway of conceivingof law invites us to include in our zone of atten-tion and field of discourse what others, operating under presentsuppositions, cut out, including both the radical uncertainty ofmost forms of knowledgeand the fact that we, and our resources,are constantly remade by our own collective activities. The pres-sure of bureaucraticdiscourseis always to think in terms of endsand means;but in practiceends-meansrationalityis likely to un-dergo a reversalby which only those things can count as ends forwhich means of a certain kind exist. This often results in a reduc-tion of the human to the material and the measurable,as thoughagood or just society were a function of the rate of individualcon-sumption, not a set of shared relations, attitudes, and meanings.To view law as rhetoricmight help us to attend to the spiritualormeaningfulside of our collective life.As one exampleof what I mean by the differencebetweenthematerial and the meaningful,consider the question of the invasionof privacy by officials.One way to try to comparedifferentregimeswould be to inquirehow frequently police officersstopped individ-uals on the street, asked for their identification, and subjectedthem to pat-downsor searches.That would be a material mode ofdetermining"how much" privacy existed in a particularculture.But far moreimportantthan that is the meaningof the describedactivities of the officersboth to them and to the citizens. There arecircumstances,war perhaps being the most obvious, in which al-most everyone would agree that this kind of policing was impor-

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Law as Rhetoric, Rhetoric as Lawtant and valuable, and citizens would by and large not feel thattheir privacy was invaded, because they would feel that the officerwas acting as their fellow workerin a common enterprise.

Such a conception of law as I describe would lead to a ratherdifferent method of teaching it as well. It would at first require arather old-fashioned training in the intellectual practices that arethe things that lawyers do, from reading cases to drafting statutesand contracts. The rhetoricianmust always start with the materi-als of his or her language and culture, and we should continue totrain our students to understand these materials, their resourcesand limits, and to learn to put them to work in the activities ofnarrative and analysis and argument that make up their profes-sional lives. The rhetorician must first of all master the startingpoints from which he or she is to proceed, then the methods bywhich he or she can move, in one direction or another, from thepoint so established.But the lawyer'sactivities of speech and argumentshould notmerely be learned as crafts to be performedas efficientlyas possi-ble; they should be contrasted with other ways of doing similarthings, drawn both from ordinarylife and from other disciplines.For example, learning how to argue in the law about the meaningof rules, or about fairness, or about blame, can be informedby at-tending to the ways in which we already know how to do thesethings in ordinary life, and by learning how they are done else-where. One focus would accordingly be upon the connection be-tween legal languageand ordinarylanguage,legal life and ordinarylife, as rhetoric connects them. A related focus would be uponother formal intellectual practices, in an interdisciplinarycurricu-lum ratherdifferent from current models: not law and sociologyorhistory or economics or literature,but law as each of these things.What kind of sociologyor history or anthropologyare we implicitlypracticing in this legal rule, in that legal action or argument, inthis judicial opinion? What can be said for and against our impliedchoices?But the largest difference would be a shift in the conceptionofthe triadic relation between the student, the teacher, and the sub-ject. The law we teach would not be regardedas a set of institu-tions that "we"manipulateeither to achieve "ourpolicies,"as gov-ernors, nor "our interests," as lawyers, but rather as a languageand a community-a world, made partly by others and partly byourselves, in which we and others shall live, and which will betested less by its distributive effects than by the resources ofmeaning it creates and the community it constitutes: who we be-

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The University of Chicago Law Reviewcome to ourselves and to one anotherwhen we converse.'3And ourcentral question could become how to understand and to judgethose things.

VIIBy this kind of conjunctionwith the law, rhetoric itself mightperhapsbe seen in a somewhat differentlight. No longera substi-tute for science when science does not work,it might be seen as ascience itself, at least in the eighteenth-century meaning of thatterm as an organizedform of knowledge.It is the knowledgeofwho we make ourselves, as individuals and as communities,throughthe ways we speak to each other. Rhetoricalknowledge sallied with artistic knowledgein that it is tacitly creative and inthat it acknowledgesboth its limits and the conditions of uncer-tainty underwhich it functions. Rhetoricalanalysis providesa wayof addressingthe centralquestionsof collective existence in an or-ganizedand consistent, but not rule-bound,way. It directs our at-tention to the most significantquestionsof sharedexistence,whichare wholly outside the self-determined bounds of science. Justice

and ethics are its naturalsubject, art its naturalmethod.Rhetoric might also provide a set of questions and attitudesthat could enable us to move from one academicand social field toanotherand, in doingso, to unite them. For at least tentativejudg-ments of the kind that rhetoric calls for can be made about thework of experts-in history or psychology,for example-withoutone's havingto be oneself an expert in the professionalsense. Notthat one has not always something to learn-of course onehas-but one can never know everythingand ought not be barredfrommakingimportantobservationsandjudgmentsof one kind bya want of competenceat making others. We can say a great dealabout the kind of historywrittenby Gibbon,14or example-aboutthe sort of communityhe establisheswith us, about his languageofvalue and judgment-without being able to make professional

13 I do not mean that distributive effects are irrelevant but that the context in whichthey are relevant, and from which they derive their meaning, is social and ethical. Whatdoes it mean about us that power and wealth are divided this way, or that? Or, more pre-cisely-since power and wealth are at bottom social and cultural-what does it mean aboutus that we create these powers, these wealths, in this way? Without a social and ethicalcontext, one has after all nothing but brute material that has of itself no meaning at all, aswealth, power, or symbol.14 EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE(London 1776-1788) (discussed in chapter 7 of my forthcoming book HERACLES'ow: ESSAYSON THE RHETORIC AND POETICS OF THE LAW).

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Law as Rhetoric,Rhetoric as Lawjudgments about his use of certain inscriptions as evidence on acertain point.Rhetoric, in the highly expanded sense in which I speak of it,might indeed become the central discipline for which we have beenlooking for so long-which "science" has proven not to be-bywhich the others can be defined and organized and judged. Onereason rhetoricmight be able to performthis role is its continuitywith ordinarydiscourse and hence with real communities,real val-ues, and real politics. It is at least contiguous to a groundthat iscommon to us all. Rhetoric must deal with ordinarylanguage be-cause it is the art of speaking to people who already have a lan-guage, and to reach and to persuade them one must speak theirlanguage.One result of the affirmation of ordinary language is that itprovides a groundfor challenge and change, a place to stand fromwhich to reformulate any more specialized language. Another re-sult of this affirmation s that it confirms our right and capacity tosay what we think is really good about what is good in our worldand what is really terrible about what is terrible. Rhetoricalanaly-sis invites us to talk about our conceptions of ourselvesas individ-uals and as communities, and to define our values in living ratherthan conceptual ways. For example, consider what is good aboutAmerica. Our present public rhetoric seems for the most part toassume that what is good about it is its materialproductivity.Butthat is often wasteful, self-destructive, and ugly. I think what isreally good about this country is its fundamental culture of self-government,independence, and generosity,and these qualities areobscured or denied by the way in which we habitually talk aboutour government and law.How does rhetoric enable us to talk about these matters? Itdoes so by giving us a set of very simple but fundamental ques-tions to ask when someone speaks either to us or on our behalf, orwhen we ourselves speak, such as the following:15

1. The inherited language. What is the languageor cul-ture with which this speaker works? How does it representnaturaland social facts, constitute human motives and values,and define those persuasivemotions of the mind that we callreason? What does it leave out or deny? What does it over-specify? What is its actual or imagined relation to other sys-15 These questionsfocus on the three aspectsof the lawyer'srhetoricalsituationthat Iidentifiedsupra p. 688-91.

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The University of ChicagoLaw Reviewtems of discourse?2. The art of the text. How, by what art and with whateffect, is this languageremade by this speaker or writer? Isthis text internallycoherent,and if so, by what standardsofcoherence? Is it externallycoherent (that is, does it establishintelligible relations with its background),and if so, by whatstandards of coherence?How, that is, does this text reconsti-tute its discourse?3. The rhetorical community. What kind of person isspeaking here, and to what kind of person does he speak?What is the voice here and what kind of responsedoes it in-vite, or allow? What place is there for me, and for others, inthe universe defined by this discourse,in the communitycre-ated by this text? What world does it assume? What worlddoes it create?Such questions are only the beginningof an ethical and cul-tural criticism but they may enableus to approacha set of texts asthey are actually made, in widely varyingcultures,languages,andhumanrelations,and to establish connectionsamongthem, across

their contexts and above or behind their particularities.To askthem is of coursenot to answerthem, but it may direct our atten-tion to the properplace for thought to begin, and suggest,by im-plication, appropriatemodes of inquiryand of judgment.

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