Table of Contents
What is Rhetoric?
It’s legally binding.
All laws are brought about, discussed, and interpreted through Rhetoric to affect us as a rule. The “rule of law” is the “rule of Rhetoric,” encouraging and discouraging ourselves to whatever ends we believe we can reach through the reach of our own Rhetoric — including our decisions on where that Rhetoric should reach.
Law is Scary
When we’re not familiar with how any of it works and why, we tend to refer to our governing body of rules and regulations as ‘Law’ or ‘The Law’, distancing ourselves from it in our Rhetoric to reflect how distant we are from it in our understanding — giving it Capital Letters to embody our simultaneous reverence and dread for being judged by ‘it’. We treat it as if it were either a shadowy villain in a corny movie, or some divine savior watching over our crud while we sleep to keep it from being stolen. It’s like we’re children afraid of something that we’re not quite sure is the Bogeyman or the Easter Bunny. And that isn’t only because our legal systems are largely concerned with punishment, not permission, which has understandable Rhetorical affects. Whether or not we appreciate what gets lumped into ‘Law’, however, we very much make, manage, and market the rule of law to one another in ways just as Rhetorically situated as any fears or trust we place in it. And we do that because without that persuasive effort, we wouldn’t always succeed in ruling with it.
Laws are a form of rules, and ones we specifically use to rule. When we’re not sure what our rules are and how they work, we can’t hope to play well within them — which isn’t much better than simply being so scared of the game that we decide not to play along at all. Add to that the fact that the rules we’re referring to here are all being made as we go, can seem as alien to us as a foreign language, and are almost entirely negative, and it isn’t hard to see why becoming more versed in the Rhetoric of law as a lawyer only makes us more afraid of it. Lawyers avoid getting The Law involved in their personal lives more than anyone else.
We not only don’t follow laws we don’t understand or believe in — we can’t. It has nothing to do with being a good or bad citizen — we can’t follow what we can’t comprehend and aren’t persuaded is worth the effort. We can fake acceptance, but not cooperation. Whether by punishment, honor, a sense of justice, faith in ‘the system’, or passing whim, when we’re not compelled to follow a law, or understand how we would, it has little power over us. What power law has is always ever entirely Rhetorical, competing with everything else for our attention and compliance, even when we’re competing with our laws themselves.
When we don’t like any of the laws we’re tasked to follow, Rhetoric is also our only avenue of changing them. And for most of the laws governing us, unless we’re an immigrant in a new nation, we very much are tasked with following or changing them, as no newborn’s ever had the privilege of making them. Whether or not we abide by them, we don’t necessarily agree to follow any or all of them, as they were set into motion long before we were born by people long since dead, and most of us aren’t in a position to decline while we dangle upside down in a hospital waiting for a butt smack.
We’ll all thrown into various legal conversations wherever we go, and our means of participating in them are all just as Rhetorical.
Law is a Conversation
Reading many laws, we frequently wonder what it was that those of us writing them had hoped to mean. Writing many laws, we wonder what we could possibly say to convey all of the meaning we’re trying to make. And when we do either, we can’t separate our own values, priorities, and intentions from the process. These not only come through when we make anything at all, but allow us to interpret or leave behind things for others to do the same with. That’s also precisely what we argue over when we inevitably disagree, and succeed to the extent we apply our appreciation for that.
Laws are always argued into existence in that way, and appealed against on any of various levels when we decide to disagree — either with a law in general, or its present application. The letter and spirit of any law are both forged and funded in Rhetorical efforts, an ongoing conversation across space and time embodying who we are and how we’d like our world to be — the greatest say given to those of us with the best ability to say it. We make and change laws with our Rhetoric, and are in turn shaped by them in their affect on how we live our lives and perceive the possibilities available to us.
Whether we’re following a law or not is a Rhetorically complex matter as well. It isn’t always easy to decide if a law’s been abided or broken — whether it be because our ability to know what has authentically happened is more limited than we’d like to think, we’re not sure who to trust when conflict arises, or we can’t decide if the letter and spirit of a law in its creation and development apply to any specific situation. Whether and to what extent any of that holds true upon scrutiny and reflection is also of prime importance. ‘Due process’ requires ‘due reasoning’ to back any decision we make with written words later relied on for an ongoing legal conversation that shapes the fates of those presently sitting in the stand, as well as countless to come. Forensic is a classical mode of Rhetoric, and it’s because we use Rhetoric itself to look back and make decisions on everything we do, whether we’re passing judgment, or deciding and discovering what happened at all through entirely Rhetorical means.
What we’re convinced has happened and why is what has happened and why until we change our minds on things entirely concerning ourselves. Rhetoric’s our original and only method of doing that, for better or worse.
There’s depth and degree to enforcement as well. It’s against the law to break the roof of my car, but if someone bounds from a burning building and shatters through my sunroof while cradling a baby, I’m inclined to be more forgiving — even if they hit me on the way down. Humorous through I’ve phrased it, cases like that aren’t the exception to the rule, they are the rule when it comes to using law to rule. Our courts exist and are crowded for a reason, and it’s not to give us something to lament alongside being called to the DMV1. Jury’s dictate fate with their decisions, and none of it is simple or easy to decide if it’s at all worth Rhetorically calling into question.
Law is Hard
Our legal systems are crowded because calling things into question is hard, both for those of us called, and those of us calling the shots. No matter what role we’re playing, better Rhetoric makes us better at it. But the better we get, the harder it gets, as we realize how much can hinge on so little, and how ambiguous seemingly clear things can be when we care about them. A single inflection of a word can mean the difference between a life sentence and a full pardon. And we quickly learn the clearest of words can’t always be trusted, if only because the way they’re understood and interpreted over time changes along with us, even at the time they’re made.
On top of that, law is a human enterprise, and takes our collective human into account at every level whenever it manages to work. It has to deal with competing interests and tendencies that we can’t ever reconcile within ourselves, let alone among each other.
It’s foolish to expect ourselves not to lie in court when telling the truth will result in the death of ourselves or someone we love, for example. We don’t require spouses to speak out against one another either because, if they’re good spouses, they’ll light their pants on fire to save one another. Laws apply to many instances, but every case is unique, having its own history and context, as well as players in all of the many roles causing it to play out. Each has their own intentions, motivations, and memory of what’s gone on, as well as point of view on what that all taken together should mean and why. That human element to how we work with law is what makes law at all work, as we aren’t programmed to follow it, we’re persuaded. If we feel a ruling is unfair enough we’re just as likely to be persuaded not to follow it, turning the whole thing into little more than a heuristic hissy fit. There’s little outside of that besides state-sanctioned violence to employ after that, which itself is intended as a Rhetorical last resort, and must remain reserved to be effective. As a basis of legal authority, it derives its power from being actionable for physical and social use, but only alienates and breeds contempt within us when actually applied.
Making legal rulings without taking any of that into account is not to take into account the situation that we’re trying to account for. We care about things in context, which laws can only address through our application of them, not directly in any overly abstract way.This makes them inherently messy, despite their intended orderly effects. If we were to sentence each other the same way for a death resulting from self-defense, manslaughter, and murder, for example, we may as well lay down and die when someone comes at us if it’s going to bring us down to their level either way. And if there’s nothing to fear in doing any of them, we’re only inclined to act more fearlessly when we do.
Laws are always problematic to make and apply because the situations and circumstances they’re made to apply to are inherently problematic for everyone involved, particularly on the Rhetorical levels law itself is applied. In some situations, it may not even be productive to make laws, despite how hard we can and do try.
A law that can’t be enforced or followed is a liability, which I wish many more would consider when rallying against any number of things without having given any concern to punishment or feasibility for those potentially breaking them — which are their legal aspects being unknowingly argued for. Anything less is our simply stating we do or don’t like something, which has Rhetorical reach in and of itself, but isn’t always the place of Law to deal with.
Abortion is a present and popular example. Even people that are in favor of abortion being explicitly and legally permissible don’t themselves like abortion. Everyone is ‘against’ abortion in some sense, even if they’re for any of us having the right to it. There isn’t some small minority of women running around from clinic to clinic having their would-be babies scooped out with a smile on their face and a skip in their step that anyone’s trying to defend. At best, abortion is something we’d all like to avoid. But when we make it a legal matter, we have to make many decisions about it that are in no way easy, or usually addressed in our discussions on it for that very reason. If abortion were made ‘illegal’ in any capacity, what do we do to those that have had an abortion? Abort them? What about those facilitating it? Is what’s in a mother’s womb her property, the father’s, the state’s, or no one’s? At what point is something considered a child bearing full legal rights, and why? Whose rights take priority in that situation, something arguably either a fetus or an unborn kid, the mother’s, or the father’s? Does anyone involved already have any applicable rights in this situation to protect, or must they be formally granted? If a mother is granted the right to abort whatever we want to call what’s growing within her, should fathers be granted an equal right to potentially sever his ties as their financier, as the mother then is dictating his fate for an entire generation without him given any functional say to match her own? 2 Do we care about either of them, or what could someday grow into a citizen? Who gets a say? And what arguments are valid regarding any of this? Religious ones? Economic ones? Scientific ones? All of them? None of them? When, where, why, and how?
However we feel about any of that, all of those are a Rhetoric swirl of decisions and discoveries 3 that, had they any easy answers, would never have been at issue in the first place. Most of the time, we’re not even sure which is which, nor how we could be, and have no neutral ground to stand on should we try. Every frame and phrase directed at it has implications for any positions we can take on it built in 4. Answering many of these questions still doesn’t address whether or not applying laws to it is at all going to help an inherently tragic situation, either, nor if they can be effectively administered, both of which are the entire point of making it a legal issue.
Dysfunctional laws undermine the trust in any authority behind them, which infects and decays the affectiveness of the larger bodies legislating them, and brings the entire enterprise crashing down in Rhetorical ridiculousness. Even with good intent behind it, a seemingly simple law can turn into just that with a single change of syllable, the gaps between ‘always’, ‘may’, and ‘never’ being so gaping that they can swallow whole the entire system relying on them that we’ve developed. Even if a law is entirely reasonable, if none of us are willing to follow it — or worse, can’t through no agency of our own– the context of following any laws erodes, until new ones are written or the whole thing collapses — whichever comes first.
The reach of any law is a Rhetorical one, but exactly when and where we should be grasping is as well. Some situations range from sought-after to universally malicious, but the place of law isn’t to deal with each and every one of them. No one likes becoming grumpy or old, but we’d need elderly prisons if we were to ban or regulate mood and age. Signing any bill into law that could would sign away the authority of anyone penning it. That’s why on many issues we argue a lot about them, but actually address very little legally because there’s nothing to address in a legal way. Whether suicide’s permissible or unacceptable, for example, there’s little to be said on what to do about it on a legal level because it’s not necessarily a legal issue. If I were to decide to kill myself, there’s no punishment that would sway me otherwise, no time to administer it, and no victim in a legal sense other than myself. There are ways to sway my decision and ability to do the deed, but none of them are ‘legal’, most of them remaining Rhetorical, and all of them more effective than making suicide ‘against the law’ 5. It’d be nothing more than an inconvenience to give my corpse a life sentence or a fine I’d defiantly leave unpaid as I went about my deadness. We can all collectively praise or condemn something, but that doesn’t always mean we should or even can use our legal systems to do it. Some situations are regrettable on all sides no matter what the outcome is, but that doesn’t mean throwing rules and regulations at them is always going to make them any better. Many times it makes things worse, which prohibition’s effectiveness can attest to 6.
If the place of Law was to handle each and every concern — even the ones concerning us most — there’d be little free will or autonomy to willfully follow it. Our liberty and freedom are always at odds with one another, every law being a give and a take, not merely a gain. Sometimes we’re better off forfeiting what we give up — I for one have no desire to stab people — other times we come to see it as a mistake — like internment camps over the twentieth century in America. There’s no easy way to distinguish between the two, as all we have is our ability to argue our alternatives as best we can, and making decisions we then go on to do the same with. When and where law has a place at all is an overarching Rhetorical debate that’s never not at stake in every ruling we make, and one that includes who’s making them — which is an integral part of any decision we make itself, at times mattering more than any decisions made.
Law is a Language
How we decide legal issues certainly has its own Rhetoric, but it always ever comes from those of us doing the Rhet’ing. Who is deciding can be just as important as what we decide and how any of it’s done. That’s why we have juries of our peers and not enemies, and even do well to have a say in its selection, but not so great a say that it becomes a jury of our friends and family — unless we’re living in a small town and they’re the only ones that didn’t manage to get out of jury duty 7. Representation is an obvious part of politics, but a less appreciated one in law, and in more areas than just the court house.
It’s hard to have laws with our interests in mind when no one with our interests are minding them. What concerns the majority of those arguing over which laws are made and how they’re applied will always be reflected in how we go about doing either. But minor concerns can be major ones for anyone they directly concern, which makes it inherently hard for minority interests of any kind to make their way into the conversation.
I’m not referring here to issues of race or culture — which at this point are more accurately issues of income, affluence, and education — but the brute fact that convictions and positions that aren’t widely shared aren’t widely considered. This becomes an issue in legal systems when those of us with interests we don’t feel are heard are still tasked to listen to what everyone else has decided to say. Going back to an earlier analogy, not only is The Law then a Bogeyman, but one that seems to pick on us while listening to and supporting everyone else. This only serves to tack ‘Bully’ after ‘Bogey’, and has little but negative effects. None of us want to play a game we feel is rigged, let alone against us exclusively. Believing one is makes us less willing to play along, no matter the rules.
Whether or not we feel that commonplace experience of The Law being against or indifferent to us, it’s a collection of conversations that we’re inevitably going to be left out of at some junctures, much like any other. And there’s no easy solution for that. Some interests are in the minority because they’re ludicrous, others because they’re genuinely overlooked for being well-held by relatively few. When there aren’t enough of us that can speak up about something, regardless of our views, we have little chance of being heard. Sometimes there are plenty of us, but we simply don’t know how to speak — at least not in the dialect required to affect legal change.
Law is its own language, and one that’s in no way intuitive to speak. It’s actually easier to learn many foreign languages than it is to learn legal language written in a form we’re mistakenly familiar with. Seemingly commonplace words that feign familiarity are invested with special meaning, and don’t at all mean the same things as they do when said walking around on the street — unless that street is filled with lawyers and lined with law firms. In the United States, confusion, abuse, and alienation are all things to be avoided, but what it is we’re avoiding in a legal sense aren’t the same things that afflict us in everyday life. Others terms like liability and negligence mean much the same as they otherwise would, but are given immense weight that can crush anyone unfamiliar with how and why they’re being stressed. Some words only seem to exist within legal proceedings and pertain to little else, never managing to reach beyond them despite the rules they lead to rarely managing not to. Holding a legal conversation relies on innumerable past conversations already held, and recalling them with a certain scrutiny that would make most of us rather stay silent if we felt compelled to do that in casual contexts. In Law, modes of argument that are likely the least effective in our day-to-day thinking are given validity above all others 8. We’re forced to respond to anything said against us in few of the ways we’d like, at times reserved to answering questions framed against us in their Rhetoric. And it’s all done in ritualistic ways with deep-seated authority that in any other area could be seen as a cult.
We even wore wigs for a time when we’d do it. We still wear the robes.
For these reasons and more, it can frequently be so complicated, and at times convoluted, to respond to a legal claim made against us that a viable business tactic is simply to sue someone with less money at their disposal for legal fees they can’t hope to muster in an effort to bleed them out or make them fold — many times in turn, after already having bleed a great deal putting up a fight before giving way. There’s an incentive on all sides of a suit to drag it out as long as possible as well, which isn’t unexpected when we’re paid so much to do it that we developed fifteen minute increments to bill for it.
Not only can it matter who’s making the decisions in law, some of us helping to decide are inherently inclined to make things difficult for everyone involved but ourselves, which all of us can relate to when our standard of living is at stake.
We pay and are paid so highly for being versed in the language of law because of how much skilled expertise is needed to speak it. What all is at play within law in any sizable nation using it to rule are so wide spread and complex that, no matter how practiced we are in it, we’re never experienced enough to speak about all the topics we potentially could — in much the same way we can’t learn one language so well that we spontaneously start speaking all its many dialects, or that we can’t become so great an athlete that we suddenly master all sports. There are so many conversations going on concerning so many things that no one lawyer can hope to be versed in all of them, each requiring its own set of rules and Rhetoric that, while similar, remain distinct by both subject and region. That’s why for issues of any concern, we either need seek a specialist concerning themselves in relevant areas, or employ the efforts of entire firms when things grow complex enough to require it. It isn’t because Rhetoric’s being used against us to bleed us dry, but because there are genuine Rhetorical concerns that require genuine knowledge and skill in particular types of Rhetoric in specific legal matters, and they grow in direct proportion to how much they have to do with things that matter to us.
Though it’s as problematic as any other means of living together, law is effective in what it’s allowed us to collectively achieve, and the reasons it can be are entirely Rhetorical, even in criticizing it.
We literally use law to rule our lives, and we do it with Rhetoric. That’s not only because our laws are written and conducted in language — which brings with it Rhetorical concerns on many levels as well — but because there’s a Rhetoric to how and why all of that works together as a system as well. From the language we write it in, to the way it’s written and discussed, to what we decide gets written at all, Rhetoric is a ruling force in our lives — if only because we’ve decided it’s among the best ways to rule. Even without legal systems in place to administer it, we’d still be persuaded to act as we do on Rhetorical grounds, and resist it in the very same way. But together under the rule of law, we extend the reach of our Rhetoric in an effort to better rule. And it isn’t hard to argue that we’re all better off for it.
Rhetoric’s the rule of law, and the reach of rule.
Footnotes and Citations
- The DMV is the Department of Motor Vehicles in the US, historically the butt of many jokes due to long lines, under funding, and us all being called there eventually for something against our will. ↩
- For an exploration of this idea, see: Is Forced Fatherhood Fair? – NYTimes.com ↩
- This is a distinction I come back to continually and develop throughout the book as two competing modes of engaging with reality that we use Rhetoric to do, using Ronald M. Green’s discussion of the boundaries of what we consider to be both living and a person with rights in The Human Embryo Research Debates: Bioethics in the Vortex of Controversy (2001 Book) as a primary example of how we use Rhetoric to go about making social reality in ways most of us are used to calling ‘political’, but extends to many things not typically thought of as political. I’ll link that section once it’s up, but until then, discoveries are akin to fact-finding, and in line with John Searle’s notion of brute physical facts. Decisions are akin to fact-forming, and in line with John Searle’s notion of social facts. Both are developed in his work The Social Construction of Reality (1995 Book). I argue the distinction between them isn’t mutually exclusive when it pertains to anything we care about, and is a Rhetorical dance that never really ends, only growing more complex over time with far reaching impact. ↩
- This is in reference to a very useful concept I teach and develop in the book called “Productive Prejudice,” chiefly inspired by Hans-Gorge Gadamer’s work Truth and Method (1960 Book) on hermeneutics, as well as in dialog with work by Stanley Fish and Richard Lanham, among many others. For now, it’s enough to appreciate that, rather than getting in the way of some untainted and eternally true view of reality we would otherwise have, what are commonly considered prejudices, biases, many fallacies, and the like are actually what we use to make sense of anything. We never get outside of them or beyond them, and they aren’t ‘bad’. Further, there are no ‘unbiased’ or ‘unprejudiced’ positions in that way, only circumstantially irrelevant biases or equally ignorant ones. Properly understood in that way, the world makes a lot more sense, particularly our thoughts, actions, and motivations in it and their Rhetorical roots. Prejudices are different methods of thinking that we use to make sense of the world, and without them, there wouldn’t be a better one, nor even an incoherent one, but no world to speak of. Believing otherwise assumes a privileged position outside of human nature we inherently cannot take, and in general isn’t tenable. I’ll link to further work I’ve done on it when available. ↩
- Legislation certainly exists in some places regarding assisted suicide, but most of them are based on the premise of sanctioning it opening the door to abuse with no surviving victim to press charges to the contrary, or the one consenting themselves being in no position to consent, as it isn’t hard to sympathize with calling someone suicidal ‘out of their minds’, and the fact that most of the ones making these sorts of requests are elderly only makes it easier to appeal to. Laws also exist regarding the rights of everyone that lives on after someone’s killed themselves, which of course doesn’t include whoever just died outside of what happens to their assets and ongoing relationships. In California, Section 5150 of the California Welfare and Institutions Code also allows qualified clinicians and policer officers to hold someone, voluntarily or not, that either appears to be a danger to themselves in wanting to do things like commit suicide, or has just survived an attempt to, so that they can be subject to a psychiatric evaluation. All of these and more dance around making suicide itself illegal, however, in ways that entirely support what I’ve outlined on it. Making suicide illegal would be a legal joke at worst, and a symbolic statement at best. Productively making and applying laws isn’t meant to define what we do and don’t like, despite our values always remaining implicit in their Rhetoric. ↩
- Prohibition in the United States ↩
- Jury duty in the United States is when we ritualistically avoid and complain about participating in the system holding us all together and keeping us safe. For other examples see: Voting. ↩
- As we’ll come to later, there’s a lot more — and a lot less — to ‘logic’ than most of us realize, but logic in the legal sense isn’t universally persuasive. Try telling someone acting like an irrational lunatic they’re being illogical, and they’ll most likely become more entrenched and resistant to anything we have to say. Being logically ‘valid’ in that sense doesn’t make something at all substantive or true by any necessity, either. If it did, we wouldn’t have judges and juries in court, we’d have computers and calculators. Not that logic is all there is to legal arguments, but trying to apply the rules and Rhetoric of Law to things like romantic relationships is a great way to ruin them for everyone involved. ↩
He enjoys learning, making, and teaching things. Though he works internationally, he's based in the Bay Area, trained and operating by the University of California, Berkeley. He's considered a leading authority on the topic of Rhetoric.
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