Rhetoric. Law and Reasoning in Law and Literature
Rhetoric served as the central occidental educational institution for legal scholars as well as poets and philologists for centuries; to the extent that it fundamentally influenced reasoning in both disciplines constitutively. Jacob Grimm’s dictum that law and poetry had risen from the same bed also refers to their common linguistic grounds. Both law and literature are linguistically constituted and both show a high degree of self-reflection concerning their own languages. Grimm claimed that the kinship between the law and poetry penetrates all languages to their very bottom, for he sees language as an element rooted in a people. However, one might argue that rhetoric, which used to be first and foremost legal rhetoric, addressing a court of law in ancient Rome, actually constitutes the historical disciplinary foundations of literary studies and law. Rhetoric reflects on language as an applied practice and institution. It is not so much language itself, therefore, but its usage, i.e. verbal practice as political, legal, social and literary power, which is in the focus of rhetorical teaching and teachers of rhetoric would insist on the possibility of acquiring rhetoric through learning. Interestingly, although the 18th-century ‘end of rhetoric’ saw the discipline move towards and merge with aesthetics, poetics and stylistics, so that it maintained an important status in literary analysis, rhetoric has almost completely disappeared from the education of young legal scholars. In accordance with Plato’s and Kant’s critiques of rhetoric, it seems to be considered a dangerous practice of persuasion, arbitrary and untruthful. While there is a rhetorical theory of law that has been trying to re-establish rhetoric within the law since the 1950s, it is still somewhat of an outside discipline. Both literary and cultural studies have seen a “rhetorical change” since the 1950s too, aptly named the “New Rhetoric,” which questions old dichotomies of persuasion and conviction, form and content, rhetorical fashioning and truth. The New Rhetoric assumes that nothing is not rhetorical, that every expression, be this is in oral or written form, entails its own specific rhetoric, which is not an addition, but lies at the very heart of the expression itself. This constitutes the point of departure for this project. It takes a closer look at the disciplinary discourses in both law and literary studies from a critical rhetorical perspective. Here, law and literary studies mirror and learn from each other. The law has to prove definite and rational in order to maintain its legitimation and fulfil its social function; literary texts are by definition indefinite and do not legitimate themselves through rationale, but rather through their indeterminate meaning, which frequently allows and also requires new interpretations. However, the literary scholar has to argue for their interpretation of the text just as much as the legal scholar has to defend their interpretation of the law or legal precedent. Such practices of legitimation and reasoning therefore seem to point to fundamental differences between law and literature, but at the same time they provide insight into the constitutive basic structures both disciplines have in common. The project therefore places a particular emphasis on the disciplinary strategies of reasoning in their specific rhetorical conditions and structures of evidence. The project rests on the premise that rhetoric does not endanger the rationality and definitiveness of the law, but rather the opposite: rhetoric enables them in a positive sense.