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January 24, 2006


David Reed

In parallel to the distinctions that you (and de Man) are pointing at, the ancient Stoics would have talked about invention vs judgement, the 'open hand' vs the 'closed.' Rhetoric as it was understood in Greece and Rome was as much about 'invention' (including both invention and discovery in our uses of these words) as it was about 'judgment' or 'presentation' ... whether invention was of words or things (to use the typical Roman distinction). One needs to have a capability (an 'art') of inventing/discovering meanings before one engages in a process of trying to judge which meanings are 'correct' or 'good.' So it could be most useful to reorient our curricula in the direction you suggest. There is much to 'discover'in a given legal/rhetorical context, whether that is in a courtroom, or in giving advice in something closer to a one-to-one format. In focusing on 'arts of discovery' one can gradually integrate the issues that seem to be foremost in most current analyses of legal argumentation (ie the interests and predilections of the speaker and/or the audience) into the larger and much more interesting and important problems of discovering the persuasive elements in a given situation (the first Book of Aristotle's Rhetoric is a pretty good example of such an approach). This type of curriculum was practiced successfully for a very long time...why couldn't it be adapted to our requirements?

Jason Steed

Fascinating stuff. My question, though: Aren't we confronted at every turn with the problem of interpretation? Even if we, as you (Peter) propose, attempt to approach law with an eye toward rhetoric and poetics "prior" to approaching it with an eye toward interpretation -- we are confronted with the problem of making some kind of meaning out of the rhetoric and/or poetics, still, aren't we?

In other words, the act of analyzing rhetoric is not fundamentally different from the act of interpreting meaning, is it? Am I missing something? Is it possible to really distinguish the two?

For example, if I set out to "interpret" a poem for its "meaning," there is, as you say, an attempt to fix that meaning -- there is a kind of sacred treatment I give to the text, as I ascribe to it a certain authority and struggle to explicate its "message."

But let's say I try instead to understand the poem "rhetorically" first. How is the text put together? What are its rhetorical structures, etc.? Rather than saying "this line means X," I am saying "this line is put together in this way, in order to make meaning X." I see the difference in emphasis between the two. But is there any more fundamental difference?

Isn't the analysis of rhetoric simply another means for interpreting meaning?

Let me try to put it another way. In interpreting a poem, one operates within the discourse(s) of literary study, literary history; one uses the tools of literary criticism; that is, one begins with a host of assumptions and inherited meanings, biases, etc.

But in analyzing a poem rhetorically, one likewise operates within discourse communities; one likewise uses the tools of rhetorical criticism; one likewise begins with a host of assumptions and inherited meanings, biases, etc.

Couldn't the originalist claim to use rhetorical analysis in the pursuit of original meaning?

Don't get me wrong: I'm not suggesting there is no value in the rhetorical approach -- on the contrary, I think it is preferable to the so-called theological approach. I guess I'm struggling with why I think so. What problem is solved? What is gained/lost?

Does rhetorical analysis free us from the sacralization of the text (i.e. past), or does it only enable us to be more conscientious of the decision to sacralize (or not sacralize)?

Certainly the latter is desirable, if nothing else....

Sorry if none of this makes any sense -- I'm sort of spewing it all onto my keyboard, struggling after what I'm trying to say, not sure of what I think or how to think about this....

Seth Edenbaum

Since there are no longer formal rules for argument -or poetry- the best thing to do is also the most simple: to argue for an understanding of law as a humanist and not simply techical activity. That's not the same as teaching law as literature but it's important that students of one should be students of the other. Medicine isn't rhetoric but there's a case for preferring a well-read doctor.
And science fiction doesn't count!


I want to suggest to Jason that there could be an analysis on the basis of rhetoric and poetics that was not concerned with meaning--at least not in the first instance. It would be an analysis that tried to show what language and figure were "doing" rather than meaning. Some of de Man's analyses are of this type. As he once remarked, such deconstructive analysis is irrefutable and boring. I am not suggesting it's the best approach--but it could be useful for legal readers as a way out of their constricting assumptions about what their terms of art mean.

Jason Steed

Thanks Peter. And I'm aware of some of de Man's work, and familiar with deconstruction. I think I see (and believe in) the value of some of this. But I also think I'm struggling a bit with the distinction between "what language does" and "what language means." Can we draw a clear line between the how and the what? Or, if not a clear line, at least a useful differentiation? Or do we end up with another constructed binary that deconstructs under scrutiny?

Is talking about how language means intelligible without ascribing or inhering what it purportedly means, and vice versa?

That is, there's some talk here of getting to something that comes "before" meaning, in the effort to talk about rhetoric and poetics -- but I'm questioning whether this is a useful or a misleading metaphor. Does rhetoric really precede meaning?

In other words, isn't it the case, in a sense, that what language does is what it means; what language means is what it does -- and a rhetorical analysis is as much a meaning-making (or meaning-finding; pick your metaphor) endeavor as any other act of interpretation?

Again, I say all this not because I reject the value of rhetorical analysis, but because I want to think critically about what its value might be, if it has any.

Seth Edenbaum

A sentence can have a meaning and a subtext. The subtext may be willed or unwilled and may have to do with the words themselves or the form of language: what is the significance of the structure- the rhetorical forms- of the arguments of academic or scholastic radicalism? When does the respectful academicising become merely self-perpetuating? What is 'academic' language as a medium? What's the significance of mounting a critical defense of the idea of narrative form rather than simply- or not simply- using it? What's the difference between the language of a legal philosopher and a trial lawyer? At what point does a sociological scientifically minded study of the arts become unuseful as the result of an unwillingness to accept 'craft' as a category of discussion? [One example of that is here http://www.thevalve.org/go/valve/article/graphs_trees_materialism_fishing/ and I find it deeply offensive.]

There's an argument to be made that all craft is conservative in that it interprets rather than innovates. "The ACLU is a conservative organization." I disagree about the necessity of using explicitly theological terms only because I associate storytellers with atheism, and because the struggle between religion and science is something religion can not win. The struggle between science and craft however, is a different matter.

Sorry if I was piling on but this is a favorite subject. cheers...

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