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Rhetorical Knowledge in Legal Practice and Critical Legal Theory has just been published by the University of Alabama Press as part of its series, Rhetoric, Culture and Social Critique. My central themes are that rhetorical knowledge - however imperfectly pursued and attained - is a feature of social life; that rhetorical knowledge plays an important role in legal practice; and that legal critique is appropriately grounded by the normative injunction to maximize the generation of and reliance on rhetorical knowledge in the administration of justice by legal actors. If nothing else, I want to make clear that by recovering and cultivating the classic insights of Gadamer, Perelman, and Nietzsche we can gain substantial perspective on our current situation. By definition, the theory of rhetorical knowledge does not call for a brilliant theoretical reconstruction of legal practice that generates prescriptions; instead, it seeks to draw out resources that can help us understand legal practice and engage critically in this practice. Rhetorical knowledge may only be enacted rhetorically.

Chapter One provides an overview of Hans-Georg Gadamer's philosophical hermeneutics and Chaim Perelman's new rhetoric to develop the concept of rhetorical knowledge as an epistemic accomplishment, even if it cannot meet the rigors of empirical or logical-deductive knowledge. I close the chapter with an extensive discussion of the Grutter case as an example of the operation of rhetorical knowledge. The antinomies of fairness and equality render the debate over affirmative action interminable under logical strictures, but the debate continues, even if suboptimally, through legal discourse that can yield rhetorical knowledge. The reality of rhetorical knowledge in this setting is proved not because the participants come to learn the correct answer to the question (or worse yet, because some professor tells the participants what the correct answer is and must be), but because the participants continue to develop the public discussion of affirmative action along new and more productive lines of argumentation.

I reaffirm Aristotle's insight that we cannot demand more of any inquiry than it can provide: rhetorical knowledge is not a fall back position or second-best result; it is the very goal of legal inquiry. As base as the discussion of affirmative action has been in certain venues (televised talking heads, etc.), there is a rhetorical-hermeneutical component that can be understood and evaluated. Advocates seek the adherence of specific audiences (in the faculty meeting, for instance), of hypothetical constructions of specific yet dispersed audiences (in presidential politics, for instance), and of the hypothetical universal audience of all reasonable persons (in political-ethical theories, for instance) in a manner of communication that is derivative of conversational exchange (as explored in Gadamer's philosophy). The ongoing struggle to come to terms with affirmative action does not disprove the ability to have knowledge of this issue, but instead it reaffirms that such knowledge holds (uncertainly) only for discrete historical situations and is tested constantly and revised as these situations evolve. Rhetorical knowledge concerns the probable, rather than the logical-deductive. The cost of knowledge is the inability to secure complete, absolute knowledge; the cost of objective moral experience is to be situated in a practical context and denied the omniscient view from nowhere. But this also means that rhetorical knowledge about affirmative action is possible, and the matter need not be relegated solely to crude political compromise.

Chapter Two considers whether my approach is overly conventional and therefore complacent. How can we ensure that the dynamic development of rhetorical knowledge is moving in the correct direction in the absence of teleological guarantees? I defend both Gadamer and Perelman at length from the charge of complacency and conventionalism by confronting them with several interlocutors, but I then introduce a reading of Nietzsche that best brings out the implicit critical elements in their philosophies. I specifically refer to Gianni Vattimo's weak thought as a basis for finding a common ground in Gadamer and Nietzsche. It is because understanding involves a fusion of horizons that there is critical distance in the activity of understanding; there is no insular subject capable of positing truths. Differently phrased, it is the element of rhetorical elaboration in every interpretation that provides the basis for critical appraisals.

I explore the cases culminating in Lawrence v. Texas as examples of gaining critical insight through the fusion of prejudiced forestructures of understanding. I argue that the cases reveal the emergence of critical insight within the practice, but I purposefully do not write with the tone of inevitability, nor do I proceed from a self-satisfied assumption that the correct answers to the cases are obvious. It is by resisting the urge to declare definitively the truth of the matter, to demarcate methodologically permissible and impermissible legal interpretations, that critical hermeneutics can gain purchase in practice. I discuss the rhetorical settings and constructions of the cases in detail, using a reading of Nietszchean critique as a Verwindung (working through) rather than an Uberwindung (overcoming) to guide my analysis. In this respect, I argue that Lawrence is akin to Nietzsche's announcement that God is dead. It is a cultural intervention through description and interpretation rather than a legislative act.

Chapter Three extends the notion of a critical hermeneutics to legal practice, investigating the nature of legal practice in light of my theoretical construction of rhetorical knowledge and then exploring the multiple criminal prosecutions of Jack Kevorkian for assisted suicide (and, ultimately, murder) as an example of my thesis. We can develop a critical legal theory by drawing from the critical openings in legal practice; critical insight is a feature of the hermeneutical-rhetorical practices that yield rhetorical knowledge. Critical legal theory does not issue commands to practice from the sovereign heights of reason. Instead, critical legal theory is possible only as a dynamic product of the discursive field shaped by rhetorical knowledge, which means that it is both enabled and constrained by the finitude and historicity of our practical engagements. This recalls one of Gadamer's principal lessons: the critical inventiveness of conversational discourse emerges when we find ourselves brought up short in the encounter with another person (and certainly not some abstract, capitalized notion of the Other). The rhetorical constructions and re-constructions in the Kevorkian trials provide an example of the connection of the theory of rhetorical knowledge to the practice of law.

I close with the plea that we pay far greater attention to the operation of rhetorical knowledge. Rhetorical knowledge is offered as a guiding concept not as a grudging resignation that we must abandon false hopes of a rigorous philosophy of truth, nor as a celebration of boundless and playful irrationalism. Rather, rhetorical knowledge is a positive achievement that must be nurtured and protected by ongoing social practices. The hermeneutical-rhetorical account that I draw from Gadamer, Perelman and Nietzsche is a disciplined encounter with the lived experience of rhetorical knowledge, particularly as it is experienced in legal practice.

Publication Citation

6 S. Cal. Interdisc. L. J. 491 (1998)