Rhetoric and the law
Publisher
University of British Columbia
Date Issued
2010
Document Type
Thesis
Degree
Master of Laws - LLM
Program
Law
Description
Legal philosophy is viewed as irrelevant by virtually everyone except for legal philosophers. In this thesis, I suggest that the main reason for this is legal philosophy's inattention to the question of why the law and legal reasoning are valuable. Rather than addressing this issue, jurisprudence has simply assumed that the law is valuable because it is objective. Legal reasoning is valuable to the extent that it obtains the truth. The belief that law is essentially a system of rules stems from this underlying premise. The assumption that the only valuable rational activities are those which single mindedly pursue truth, is not unique to the law. In fact, it reached its highest expression in nineteenth and twentieth century science. But, in recent years, many philosophers have rejected the notion that science is objective, and based upon independently existing facts. This, however, has not resulted in a rejection of science's value. Similarly, an increasing number of legal philosophers are realizing that the belief in rules is a myth. The law is not, and cannot be objective. How then can it be valuable? To answer this question, I search for the foundation of the belief that truth is the only value of rationality. In fact, philosophy proceeded for hundreds of years without any such notion. The goal of rational activity was the good, or virtue, or excellence. Philosophers strove to generate beautiful or valuable visions of the universe. Rationality had several tools which it could employ to this end. Logic, the technique of proof, was but one of these tools. No less important was rhetoric, the art of persuasion, and the craft of the Sophists. The concept of truth as the most important value, was introduced in Athens, by Socrates, and especially by Plato and Aristotle. The legacy of these three individuals was the elevation of truth to a position of ultimate value. This, of course, resulted in a corresponding elevation of logic, and a demeaning of rhetoric. But logic, by its nature, can only elicit truth. Where there are other values, such as beauty, love, or justice, logic is impotent. The remainder of the thesis is dedicated to proposing a revival of rhetoric. I argue that philosophy in general, and the law in particular, should become openly and avowedly rhetorical. It is only by persuading the public that its decisions are just that the law can ever be just. Legal decisions will inevitably be decisions of value. Rhetoric is the tool that can guide our decision makers to an appreciation of our culture's values, and can give them the skill to reach "good", rather than "true" conclusions.
Date Available
2010-03-09
Rights
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.
DOI
10.14288/1.0077639
Affiliation
Law, Peter A. Allard School of
ID
1.0077639