The Hermeneutical and Rhetorical Nature of Law

Abstract

This article was presented at a Symposium at Villanova Law School devoted to Jean Porter's book, "Ministers of the Law: A Natural Law Theory of Legal Authority (2010). Porter engages the natural law philosophy of the early Scholastic period from our modern perspective and its attendant problems. Her approach provides helpful resources to deal with contemporary dilemmas such as gay marriage, but it also opens new possibilities for the development of natural law thinking. Her book is erudite, artfully presented, and provocative.In this article I view Professor Porter's successful resuscitation of a plausible account of natural law through a particular lens. My thesis is that we can productively extend her work by more strongly acknowledging the hermeneutical and rhetorical nature of law by drawing on the philosophy of Hans-Georg Gadamer and Chaim Perelman. I argue that natural law is best understood as "naturalized rhetoric." The ontological claims made by Gadamer and Perelman establish that human nature is radically hermeneutical and rhetorical, and it is this nature that should serve as the focus of an inquiry into the natural law. Simply put, it is our persistent human condition to continuously recreate ourselves and our society through rhetorical exchanges with others. A naturalized rhetoric embraces the paradox that nonessentialism is essential to our being, that we can find a foundation for reflection in antifoundationalism.My discussion is divided into three parts. First, I survey Professor Porter's argument and establish that she regards hermeneutical and rhetorical practices as critical features of her natural law account. Next, I develop my conception of a naturalized rhetoric. Finally, I explore how this account expands and deepens Professor Porter's natural law account of legal authority. I conclude that we should recognize law's rhetorical and hermeneutical nature, but that Porter has demonstrated the necessity of taking into account the Scholastics' natural law philosophy as part of this project.