This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. To support this proposal, the article describes and evaluates an upper-level elective course in Law & Rhetoric, which I have offered at two law schools since 2003.
The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and reason. Second, offering rhetorical alternatives allows law professors to enrich their own study and teaching and to develop a more nuanced understanding of the law school classroom as a rhetorical community. Set next to popular depictions of formalism and realism (which live on, despite much criticism), rhetorical alternatives would look at how the law works by exploring the meaning-making process through which the law is constituted as human beings located within particular historical and cultural communities write, read, argue about, and decide legal issues.
Most students recognize the practical benefits of the course in Law & Rhetoric; they conclude that the course helps them become better rhetoricians because they are more aware and adept legal readers and writers, and they believe that better rhetoricians become better lawyers. I think this recognition that better rhetoricians become better lawyers carries with it something more profound: rhetorical alternatives recognize students’ power and ability to affect outcomes in their rhetorical communities, both now, while they are law students, and later, when they are practicing lawyers. From the rhetorical point of view, law students, law teachers, and lawyers are human actors whose work makes a difference because they are the readers, writers, and members of interpretive and compositional communities who constitute the law.
16 J. Legal Writing 3 (2010)
Berger, Linda L., "Studying and Teaching “Law as Rhetoric”: A Place to Stand" (2010). Scholarly Works. Paper 664.