Rhetoric

Rhetoric involves the study of texts and language. In the context of the study of law and society—and in contrast [Page 1321]to discourse analysis, linguistics, and communications—rhetoric represents a critique of the social study of law informed by the humanities. Unlike interpretive sociolegal scholarship, which takes “talk” as fundamentally the effect and cause of power, rhetoric takes language and speech seriously for what they say, as well as for what they do not say. The rhetoric of law takes as its subject matter a broad gamut of texts of and about law.

Although rhetoric itself has a long tradition dating back to ancient Greece, contemporary rhetoric often takes its inspiration from the works of Friedrich Nietzsche (1844–1900), Martin Heidegger (1889–1976), Michel Foucault (1926–1984), Jacques Derrida (1930–2004), and others who have challenged the primacy of logic and reason as the foundation of Western thinking. Plato (428–347 BCE) famously distinguished the rhetoric of the Sophists from the truths of the philosophers, and celebrated the latter. Aristotle (384–322 BCE) identified three aspects of public speech linking speaker to audience: the ethos (character of the orator), pathos (emotional appeal), and logos (reasoned argumentation) necessary to persuade listeners of an oration to agree with its speaker.

Cicero's (106–43 BCE) speeches epitomized and Cicero elaborated rules of eloquence. During the Renaissance, forms and figures of rhetoric received extensive treatment in manuals and handbooks. By the time of the Enlightenment, however, rhetoric began to pass out of favor. Following Nietzsche and Ludwig Wittgenstein (1889–1951), though, there has been a resurgence of interest in the ways in which language itself—its grammar and rules, in part, but also its practice and use as something that is not completely within human control—underlies and in some sense precedes what counts as truth. Post-Nietzscheans have claimed to show how Socrates and Plato were themselves implicated in such a view of language as the ground not only of truth but also of being. In this way, rhetoric in some sense turns the philosophical tradition—of strict separations between sophistry and truth and between language and reality—on its head.