Use your words: Rhetoric as absence of law, rhetoric as essence of law

Document Type

Book Section

Publication Date

8-2016

ISBN

9781316658789

DOI

10.1017/CBO9781316658789.007

Abstract

The contributors to this book have addressed a wide range of important questions about the relationship between law and rhetoric, and about the way rhetoric shapes legal judgments. Law, as Gerald Wetlaufer has observed, "is the very profession of rhetoric." It is hard to deny that rhetoric - understood as the conventions of discourse and argument' - is at the core of our legal system. When disputes arise about the content of the law or the legal entitlements of parties, our judicial system gives the same instruction parents or teachers might give a frustrated, tantrum-throwing child: "Use your words." And when judges use words in judicial opinions, the words themselves generate law. This law binds not only the parties to a particular dispute but also - because of stare decisis - the larger community going forward.

In another sense, however, "rhetoric" and "law" stand in opposition to one another. Section I of this Afterword explores this tension, while Section Il circles back to the conventional wisdom that rhetoric, discourse, and argument play fundamental roles not only in the practice of law but also in creating the substantive content of law itself. Accordingly, I conclude with some thoughts on the question of which parts of a judicial opinion - which aspects of the judge's own rhetoric in justifying a particular decision - ought to have prospectively binding effect via stare decisis.

First Page

127

Last Page

140

Num Pages

14

Publisher

Cambridge University Press

Editor

Austin Sarat

Book Title

Rhetorical Processes and Legal Judgments: How Language and Arguments Shape Struggles for Rights and Power

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