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January 21, 2006


Adam Thurschwell

"But to admit the rhetorical bases of legal argument—including the ways in which appeals are made to 'text' and 'precedent'—would be to give away too much of the game: it would be a 'laying bare of the device,' in the language of the Russian Formalists. One of the functions of law school is to make sure that law remains autonomous, hermetic, uncontaminated by languages that are not its own terms of art."

For a non-theological (but normative, despite his claims to the contrary) version of this argument, see Stanley Fish, "The Law Wishes to Have a Formal Existence" (originally published in The Fate of Law, I believe, and anthologized in various collections thereafter). I'm looking forward to your next post, since I think the genuinely "theological" moment in law is its ineradicable moment of transcendence, which gives the lie to its pretense to immanence, formalism, etc.

Seth Edenbaum

A lawyer's ethical responsibility is to her client and her craft, not to 'truth' theological or otherwise; lawyers understand deconstruction without having to bother with the jargon. The legal academy on the other hand produces both prosecutors and defense attorneys and those who never leave academic life still try to imagine an all seeing eye. Legal philosophers are theologians.
But lawyers are actors, and actors are notorious atheists- and freethinkers, and con men, and whores


both rhetoric and narrative are neglected. it is astonishing.

the human mind is a story telling machine. it is how we create meaning. when someone says something doesn't make sense, what they mean is that they (temporarily) can't fit it into their narrative of "reality".

i'm a first year law student. the most useful piece of information came from my torts professor. she said told us being a lawyer is telling stories. the best judges tell the best stories (in the best sense).

perhaps it is too difficult to admit. not unlike the (collective) reluctance to admit the truth about the "objective" judge/legal santa claus fantasy.

and, for the kinds of decisions judges are required to make (i.e. unverifiable ones), rhetoric is the best (perhaps only) method available.

two 20th century dogmas. scientism: the belief that non-scientific claims, because they could not be deduced or verified, were all of equal value – in effect saying freedom is better than tyranny is no more rational than saying blue is better than red.

second dogma: irrationalism. this is the belief that non-formal choices (like tyranny vs. freedom) can only be decided by force. In the case of non-empirical matters you can’t persuade with effective reasoning, because reasoning is bunk.

on the other hand, i believe that for individuals, going through the no-meaning crisis, ultimately makes for better, wiser human beings. ironies abound.


_A lawyer's ethical responsibility is to her client and her craft, not to 'truth' theological or otherwise;_

but it's the responsibility of those who work in the law to make the law worth having. the responsibility to the client is not different from the responsibility towards the "truth". imo, to get real resolution, everybody needs truth (i.e. a more accurate narrative of reality and how they fit in it), whether they realize it or not.

Seth Edenbaum

"everybody needs truth."
But that's not the lawyer's job. The lawyer's responsibility to to uphold his or her side of the adversarial relation, the result of which- of the relation, not either party individually- is what we would hope to call a just result (a finding of fact.)

Another argument against philosophical individualism.


I tried teaching a law school class with Aristotle's Rhetoric as a secondary text. As we went through cases, after we identified the main points, I would ask the class to talk about the thing that the judge thought was most persuasive, and what an attorney might have said or written that made that so persuasive. Then I would try to point to one of the devices in the Rhetoric that might have helped make that happen.

I thought it was interesting, but they did not ask me back.

seth edenbaum

one more from the times

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