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enactment of law, is that language is intimately involved in the
process. Indeed, if Derrida s notorious apophthegm,  there is nothing
beyond the text , is taken (half-)seriously, only language is involved.
The words used in the composition of the statutory provisions and
case decisions construct the law.
It follows, then, that the critical linguistic theories in this chapter,
in undermining the pretension of legal language to be precise
(univocal), threaten the claim of the law to be certain and of the
legal process to provide the single right answer. For language, they
say, is deceptive and inescapably mystifying with its figures of speech,
tropes, tricks and hidden meanings. Univocality is a false, an
impossible goal. Language does not resemble a code with a system
of fixed meanings, as the exegetical approach of textualism would
demand with its code-breaking approach to the text.
The shortcomings of language come either from its structure or
from intent in its broad sense. Deconstruction is the most radical of
those theories which root the problem of the inevitable uncertainty
of meaning in structural features of language. It is linked to Derrida
but has been drawn on (perhaps distorted in the process) by American
disciples. The other group of theories focuses on the effects of forces,
such as tradition, culture, ideology, at the collective level, and
unconscious motivations at the individual level, on the shaping of
language. In its strong form, this body of theory views such forces
as determinant not only of how we speak about the social reality
but also of the way in which that reality is constituted.
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Against that strong version stands a feature of the social reality
which cannot be gainsaid. Driven as social beings to communicate,
unless we believe in the powers of telepathy, we are stuck with
language, warts and all. In formulating their critique, even the
exponents of critical linguistics have no option but to make use of
language. The instrument (language) employed for the analysis is
identical with the object of the analysis itself (language). So, in
constructing its critical theory, critical linguistics cannot but build a
trap for itself. Later in the chapter, the review of deconstructionism
and of the position of ideology in neo-Marxist thought, with their
threats to the integrity of the legal text, reveals a mechanism whereby
each seeks to escape its own trap.
Rhetoric
It is an imperative to look closely at rhetoric as an introduction or
background to critical linguistics, at least in relation to law. Perhaps
even, in its own terms, rhetoric is to be regarded as the umbrella
term covering critical linguistics. Rhetoric is classically defined as
the art of persuasion by discourse, discourse in this context being
used in its non-technical sense. Speech or argument, therefore, is to
be measured not by whether it is true, valid or sincere but by whether
it is effective in persuading those to whom it is addressed. The
elimination of the dimension of referentiality intrinsic to language,
common to the other theories to be discussed here, emerges clearly
in the definition. To call rhetoric an art inevitably imports the many
facets of an art: a study or a legitimising discourse; a set of practices
or techniques; and along with these a nuance of artfulness.
Nowadays, in ordinary usage, we pick up two of these aspects in the
phrases:  rhetorical question and  mere rhetoric . The use of the
first is a rhetorical technique; the other exposes an utterance as artful,
 only words .
Rhetoric as study and as the art of language use has had a long
history and more than one change of focus and variation in reputation
from its beginning in the fifth century BC until its revival in the
1960s. Barthes, writing in the mid-1960s, thought that, with
Aristotle, rhetoric had both triumphed and become moribund. But
by the decade following his writing it off, it had not only sprung in
full vigour from its deathbed but had even claimed an  empire ,
according to the title of one of the works of the jurist Perelman.2
Perelman played a major part in its resurrection, packaging as New
Rhetoric a theory closely based on Aristotle s systematisation of
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rhetoric and applying it to law. He concentrated on rhetoric as the
basis of a theory of argumentation. In the legal field, he analysed
the grounds used by judges to support their judgements. As a
preliminary to an assessment of Perelman s  empire of rhetoric , it is
worthwhile taking a quick synoptic look at the place of rhetoric in
the thought of pre-Aristotelian Greece.3
Classical rhetoric
Rhetoric as argumentation
About 460 BC, Corax, who lived in Greek Sicily, produced a manual
called Rhetorical Techniques. This text can be taken to be the
beginning of rhetoric as a study of language designed to inculcate
self-awareness in the language-user. What Corax s manual set out
to do was to instruct its readers in the techniques necessary to
convince the popular tribunals concerned with property restitution.
The fall of the tyrants had given rise to many claims by those who
had been despoiled and banished. Somewhere between an art and a
set of techniques, rhetoric could be identified, described, analysed
and made the object of theory. With a basis in theory, techniques
could be taught and the art honed by practice. Corax s book consisted
of an assembly of practical precepts illustrated by examples, and a
breakdown of advocacy into exordium, argument and epilogue.
There were no pretensions at all to literary embellishment or philoso-
phical reflection in the text. At this rudimentary stage, rhetoric and
argumentation were the same. And perhaps against expectation,
rhetoric began in the legal sphere, not the political.
CASE STUDY
Tisias, having heard that rhetoric was the art of persuasion,
had recourse to Corax for training in that art. But once he had
nothing more to learn, he wanted to deny his master the
promised fee. Tisias formulated this dilemma:
Corax promised to teach me the art of persuading anyone
at will. That being the case, either he has taught me that
art and so must suffer the consequence that I persuade
him to forego any fee: or he has not taught me it, in
which case I owe him nothing, since he has not fulfilled
his promise.
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But Corax, in turn, riposted with another dilemma, illustrating
the rule that the best (only) answer to rhetoric is rhetoric:
If you succeed in persuading me to take nothing, you
will have to pay me, since I will then have kept my
promise. If on the contrary you don t manage it, then in
that case you will have to pay me, all the more so!
The judges declined to announce a decision, contenting them-
selves with saying,  a wicked crow deserves a wicked fledgling .
 Corax was Greek for  crow .
Power of rhetoric
In the sociopolitical setting of the time, rhetoric now emerged to
demonstrate and shape the way that the power of language could be
mobilised. Persuasion by words could take the place of the tyrants
despotism. More generally, persuasion by rhetoric possessed a clear
moral superiority over the exercise of force, the pressure of threats,
the assertion of authority, the dangling of inducements, the lure of
seduction (although the line between persuasion and seduction may
not be easily drawn). But must a qualification be inserted for that
form of authority inherent in the pedagodical relationship? Barthes
suggests that the fundamental mode of discourse is the dialogue
between the master and the pupil, involving two interlocutors where
one (the pupil) concedes. So the real point of the exchange between
Corax and Tisias may be that it was the master who had the last
word, administering to Tisias his final lesson by turning his own
argument against him. But, subject perhaps to such an exception,
rhetoric was meritocratic. In learning the art, one acquired the power
to persuade the other, whomever he might be. [ Pobierz całość w formacie PDF ]