An open-handed image of rhetoric presents an argument against the closed fist of logic and the “nasty, brutish, and short” depictions associated with legal rhetoric. In 1985, Robert Cover laid bare the field of pain and death where legal interpretation plays itself out in human consequences. Five years later, Gerald Wetlaufer described a landscape of brutal certainty as the backdrop for much of legal rhetoric. And the arena of criminal trials has long been recognizable as a bleak setting within which “[j]ustice determines blame and administers pain in a contest between the offender and the state . . .”
My purpose in this chapter is to explore alternative conceptions of legal rhetoric. These alternatives oppose both the Aristotelian view of rhetoric as the “faculty of observing in any given case the available means of persuasion” and the closed system of legal rhetoric identified by Professor Wetlaufer. Within that system, Wetlaufer found a linked set of rhetorical commitments. These commitments included allegiance: “to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies.” There were commitments as well “to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts.” All this led Wetlaufer to conclude that the dominant rhetoric of the law is “the rhetoric of foundations and logical deductions,” a rhetoric that “relies, above all else, upon the denial that it is rhetoric that is being done.”
Alternative Conceptions of Legal Rhetoric: Open Hand, Closed Fist, in Rhetorical Process and Legal Judgments (Austin Sarat ed., Cambridge Univ. Press 2016).
Berger, Linda L., "Alternative Conceptions of Legal Rhetoric: Open Hand, Closed Fist" (2016). Scholarly Works. 992.