(So) What if it's All Just Rhetoric?

Abstract

This essay reviews Professor Eugene Garver's For The Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief. Partly through legal examples such as Brown v. Board of Education, Garver explores the role of ethos in persuasion and develops an ethics of practical reason, which he applies to judicial opinions. This review discusses the strengths and weaknesses of Garver's approach, and uses his argument to consider why legal academics are often hostile to the rhetorical dimensions of the law. The essay concludes that Garver makes a persuasive case for treating rhetorical choices as ethical choices properly subject to ethical criticism, but that such criticism will not alter judicial practice very much. It also concludes that legal academics should not be so hostile to rhetoric, especially because much of what we do counts as rhetoric. Nor should we be bothered by the fact (and it is a fact) that much of what counts in law rests on rhetorical strategies that go beyond logos. That fact implies that we do not have a comparative advantage in teaching and analyzing all aspects of law, but it does not imply that we have no such advantage. Rather than criticizing rhetoric, it would be better to acknowledge explicitly that law and rhetoric are inseparable, and that if we have a comparative advantage over other disciplines it lies largely in the logic of the law. We therefore should be content to be partisans of logic. To the extent we have a comparative advantage, we have limited influence over the direction of the law; to the extent we seek such influence, we are likely to lose our comparative advantage.