of the legal system. If the goal is a robust relationship between philosophy and
law, then both disciplines will have to adjust their orientation and ď¬nd common
ground. Llewellyn suggested, in an unnoticed and almost unnoticeable manner,
that this common ground is the ancient art of rhetoric.
Llewellyn is well known for his series of lectures to entering law students begin-
ning in 1929 and eventually published in 1951 as The Bramble Bush. In the
acknowledgments and afterword he bemoaned his failure to deal with the role
of the rhetorical arts in the lawyerâ™s craft, arguing that this would have done much
to blunt his criticsâ™ accusation that he was a nihilist. His castigation of the elite
law schools for their slavish adherence to the theoretical dogmatism of the case
method suggested an uncompromising antiphilosophical stance, but Llewellynâ™s
point was to argue that we must develop a broader theoretical appreciation of
law that remains connected to practice. He emphasized that the craft of law âcries
out for the development and teaching of its theory, as it does also for study by
doing in light of that theoryâ (Llewellyn 1981: 185). He named the needed theory
The Irrelevance of Contemporary Academic Philosophy for Law 209
âSpokesmanship,â and he derived it from the theories ď¬rst developed in Greece
as âRhetoricâ“in essence: the effective techniques of persuasionâ (Llewellyn 1981:
185). Spokesmanship calls for a theoretical-practical inquiry intended to equip
lawyers for the rhetorical challenges of their profession. Counseling clients is an
important feature of spokesmanship no less than arguing a case, and this art cannot
be reduced to simple rules for communicating doctrine because it involves theo-
retical development of, and argumentation about, contested principles (Llewellyn
Llewellynâ™s suggestive reď¬‚ections in 1951 were presaged in âOn Philosophy in
American Law.â Before proceeding to take the reader on a dizzying ride through
the tides of American jurisprudence, Llewellyn delivered the following tease in his
customary ď¬‚orid prose:
âOne system of precedentâ we may have, but it works in forty different ways. Some
day, someone will help the second year student orient himself. Nor does anyone
bother to present to him the difference between logic and persuasion, nor what
a man facing old courts is to do with a new vocabulary; in a word, the game, in
framing an argument, of diagnosing the peculiar presuppositions of the hearers.
I think the second year student is entitled to feel himself aggrieved. Meanwhile,
while we wait upon the treading of the Angel, there is rushing in that calls for
doing. Here is a start. (Llewellyn 1934: 205nâ— )
This was Llewellynâ™s call for a theory of the practice of spokesmanship, but the
essay that follows answers this call only obliquely and in an unsatisfying manner.
In the afterword to The Bramble Bush he rediscovered this focus and attempted to
recast his lifeâ™s work in this way, but he did so only suggestively. Forging a produc-
tive relationship between philosophy and law today requires embracing Llewellynâ™s
intuition and developing it with vigor. Doing so challenges the self-understanding
of large segments of both philosophy and law, but it is precisely these self-
understandings that have promoted the current state of relative nonengagement.
LAW, HERMENEUTICS, AND RHETORIC
The sharp distinction between philosophy and law occurred when both disciplines
built insular guilds that employed distinctive vocabularies to distinguish themselves
from rhetoric. Rhetoric was part of the trivium at the core of classical education,
and it is the point at which philosophical thinking and legal practice naturally, and
inevitably, join. By ď¬‚eeing rhetoric, we severed the connection between philosophy
Modern Western philosophy emerged in ancient Greece, in part, by painting
the rhetoricians with a broad brush as opportunistic Sophists concerned only with
achieving success with jurors rather than devoting themselves to the pursuit of
knowledge. Rhetoric was tied inextricably to the law courts and politics of the day,
and so the philosophers regarded the teachers of rhetoric with great suspicion.
Plato cast the die and, Aristotleâ™s moderate approach to rhetoric notwithstanding,
philosophy successfully marginalized rhetoric and sent it packing to departments of
210 Francis J. Mootz III
communication studies. Two thousand years later Vico lamented that the emerging
critical philosophy of Descartes sought to erase the rhetorical tradition altogether,
destroying an essential feature of liberal education that was particularly important
for statesmen and lawyers. Vico (1990: 41) summarizes:
[W]hosoever intends to devote his efforts, not to physics or mechanics, but to a
political career, whether as a civil servant or as a member of the legal profession
or of the judiciary, a political speaker or a pulpit orator, should not waste too
much time, in his adolescence, on those subjects which are taught by abstract
geometry. Let him instead, cultivate his mind with an ingenious method; let him
study topics and defend both sides of a controversy, be it on nature, man, or
politics, in a freer and brighter style of expression. Let him not spurn reasons that
wear a semblance of probability and verisimilitude. Let our efforts not be directed
towards achieving superiority over the Ancients merely in the ď¬eld of science,
while they surpass us in wisdom; let us not be merely more exact and more true
than the Ancients, while allowing them to be more eloquent than we are; let us
equal the Ancients in the ď¬elds of wisdom and eloquence as we excel them in the
domain of science.
Vicoâ™s call fell on deaf ears. Even he must have known that it was too late to avoid
philosophyâ™s excision of rhetoric, and therefore its excision of law.
Lawyers pursued their own parochial concerns by sundering the legal system
from rhetoric and securing it on one or another (supposed) bedrock such as
natural right or economic rationality. The legal guild had no desire to embrace the
endless discussions of the philosophers, and even less to embrace the potentially
deconstructive effects of the rhetoricians. As law schools became ď¬xtures of the
modern research university and the training of lawyers was severed from practical
apprenticeships, legal scholars sought a distinctive and stable method that could
secure law from the hurly-burly of civil life and constitute a suitable object for their
analysis. It was against this unfortunate concerted effort that Llewellyn registered
his lament on behalf of the aggrieved second-year law student, a lament that
Recuperating ancient rhetoric should not be confused with an antiquarian inter-
est in oratorical style. I use the term rhetoric to refer to both a practical activity
and a self-referential theoretical consideration of that activity; philosophical argu-
mentation is a form of rhetoric despite its protests to the contrary. Today, the
study of rhetoric is informed by an important, though still marginalized, strand
of contemporary philosophical inquiry. Philosophical hermeneutics provides an
ontological account of the social nature of understanding that girds rhetorical
activity. Rhetorical analysis moves from this ontology to political engagement,
revealing the entwinement of theory and practice. The recent effort to link rhetoric
and hermeneutics (Hyde 1979; Jost 1997; Mootz 2006; Schrag 1992) follows from
the insight that there is a lived truth that is not captured by the circumscribed
rationalism of modernity, and that within a social practice such as law one can
adopt a theoretical comportment that clariď¬es and inď¬‚uences the practice of inter-
pretation and persuasion by participating in, rather than sitting in judgment on,
hermeneutical discernment and rhetorical elaboration.
The Irrelevance of Contemporary Academic Philosophy for Law 211
Hermeneutics and rhetoric experienced a revival with the publication of two
seminal works: ChaÂ¨m Perelman and Lucie Olbrechts-Tytecaâ™s The New Rhetoric
(1958) and Hans-Georg Gadamerâ™s Truth and Method (1960). Perelman argued
that justice is a âconfused notionâ that can be developed only in the course of
responding to the practical demands of political action in a manner informed
by reasonable beliefs that arise from rhetorical exchanges. Following Aristotle, he
famously distinguished the rational (subject to demonstration) from the reason-
able (subject to persuasion), and he cited legal practice as a prominent example
of the latter. Gadamer explained his ontology of understanding by analogizing to
the playful give-and-take of a conversation in which each participant is drawn out
of her prejudiced horizon to some degree and they experience a fusion of hori-
zons. Also drawing from Aristotle, Gadamer argued that this experience of human
understanding is no less legitimate or important than scientiď¬c demonstration,
and he too placed great weight on the example of law.
The modern age has disastrously equated knowledge with the logical founda-
tions of modern science and has characterized nonscientiď¬c discourse as merely
aesthetics or hortatory moralizing. The development of a rhetorical hermeneutics
stresses the independent signiď¬cance of what we can call ârhetorical knowledgeâ
(Mootz 2006; compare with Scott 1977). Rhetorical knowledge cannot be sub-
sumed under the model of rational thinking according to logical dictates because
it arises within a historically situated social encounter that is irremediably dynamic
and contingent. (Of course, this is true also of methodologically secured knowl-
edge, but in this context we can indulge the Cartesian fantasy that solitary reď¬‚ection
generated the critical tradition against which Vico struggled). Legal practice is an
exemplary site of rhetorical knowledge, and so it is by returning to rhetoric that
law and philosophy might reconnect in a vital manner.
We can begin the recuperation of rhetorical knowledge by reading Plato against
the grain of the tradition that seeks to ď¬nd a systematic-propositional Platonist
philosophy embedded in his work. Gadamer (1992: 71) believed that the Platonic
dialogues reveal that it âis more important to ď¬nd the words which convince the
other than those which can be demonstrated in their truth, once and for allâ
(see, generally, Gadamer 1980). Gadamer drew heavily from Aristotleâ™s practical
philosophy, but he regarded Aristotleâ™s achievement as a systematization that was
possible only in the wake of Platoâ™s dialectical exploration of Socratic dialogue as a
living rhetorical experience (Sullivan 1989: 87â“117) As Gilles Deleuze (1990: 256)
later asked, âWas it not Plato himself who pointed out the direction for the reversal
Recent work carries Gadamerâ™s insight forward and develops an understanding
of Platoâ™s philosophy that supports the signiď¬cance of rhetorical knowledge (see,
generally, Gonzalez 1998). Although Plato argues for the superiority of philosophy
over sophistic, Marina McCoy (2008) suggests that Plato recognizes that both are
rooted in rhetoric and cannot be distinguished from each other in a deď¬nitive
manner. Socrates employs practical reasoning and emotion in his conversations,
and he understands that an apt argument is determined only in the context. McCoy
contends that Platoâ™s argument for the superiority of philosophy is rooted in the
212 Francis J. Mootz III
virtue of the philosopher and his willingness to put himself at risk in rhetorical
If the dramatic and poetic elements of Platoâ™s dialogues are closely intertwined
with the arguments given in the dialogues (and not merely decoratively designed
to make them more alluring or easier to understand), then one cannot distinguish
between philosophy and rhetoric by claiming that the philosopher offers rational
arguments free of rhetoric while the rhetorician merely tries to persuade. . . . The
task of separating the sophist from the philosopher becomes all the more inter-
esting since Plato does not reject the use of rhetoric or see it as entirely separable
from philosophy but rather views philosophy and good rhetoric as mutually
. . . Platoâ™s central means of defending philosophy against these non-
philosophers is not to give a deď¬nition of philosophy but instead to make a
series of claims about who the philosopher is (his character) and what he does (his
practice). (McCoy 2008: 16â“18)
The philosopher, then, just is the individual who engages in âgoodâ rhetoric for
the right reasons.
Returning to the allegory of the cave, we can construe the puppeteers casting
shadows as Sophists who understand that the shadows are illusions and yet are
willing to deceive the prisoners (McCoy 2008: 129â“31). In contrast, the philoso-
pher strives to learn the truth and cares about his or her dialogue partners as
truth-seeking individuals rather than viewing them as objects to be manipu-
lated (McCoy 2008: 133). Francisco Gonzalez identiď¬es three characteristics of
the knowledge that Socrates seeks through dialogue: â(1) it is â˜knowledge howâ™
in the sense that it is instantiated by the very way in which Socrates conducts the
inquiry . . . ; (2) it is â˜self-knowledgeâ™ in the sense that its â˜objectâ™ is not completely
external to the knower . . . ; (3) it is â˜nonpropositional knowledgeâ™ in the sense
that its theoretical â˜contextâ™ cannot be expressed in propositions/deď¬nitions (thus
the inevitable aporia)â (Gonzalez 1998: 61). Socrates seeks rhetorical knowledge
rather than propositional philosophical knowledge. We can seek no more than
rhetorical knowledge in law; indeed, Gadamer and Perelman both claimed that
legal reasoning exempliď¬ed the form of knowledge that might be achieved through
Reading Plato in this manner reveals the necessarily rhetorical character of
inquiry but also the need to be wary of sophistry. Rhetoric produces ideology and
knowledge: it is both a technical art that can be abused and an openness to the world
that decenters the pretense of individual self-possession. By understanding how
rhetoric produces knowledge within certain social and institutional settings we
might foster the âgoodâ rhetoric of the philosopher without having to endorse
the Platonistâ™s misguided faith in the forms that can be seen in the sunlight
of timeless knowledge. Rhetorical knowledge is a practical accomplishment that
neither achieves apodictic certitude nor collapses into a relativistic irrationalism;
this is enough to sustain legal practice as a reasonable â“ even if not thoroughly
rationalized â“ activity.
The Irrelevance of Contemporary Academic Philosophy for Law 213
Using rhetorical knowledge as a polestar, philosophers and lawyers can avoid
the theory-practice quandary by not severing the two at the outset. At the most
practical level, the concept of rhetorical knowledge will guide investigations of
how the legal system fosters reasonable resolutions of controversy, examining how
understanding and persuasion work in myriad contexts, from client interviews to
appellate argumentation. At the most theoretical level, the concept of rhetorical
knowledge will guide an investigation of the ontology of understanding and per-
suasion, not by identifying a ď¬xed human nature but rather by illuminating the
unfolding hermeneutical-rhetorical character of human understanding in which
the investigation itself participates.
The merging of the philosophical traditions of hermeneutics and rhetoric pro-
vides the basis for understanding the rhetorical character of knowledge that is
achieved in legal practice. Rhetorical knowledge is an incredibly rich starting point
for thinking about legal practice and legal theory, stretching back to the pre-
Socratics and Roman jurisprudence, and carrying forward today in a variety of
work in both philosophy and law. Mining this vein of thinking promises to bring
together philosophers and lawyers who currently bump into each other in the
darkness of the cave, hardly pausing to take real notice of one another.
Deleuze, Gilles. The Logic of Sense. Ed. Constantin V. Boundas. Trans. Mark Lester with
Charles Stivale. New York: Columbia Univ. Press, 1990.
Dworkin, Ronald et al. âAssisted Suicide: The Philosopherâ™s Brief.â The New York Review of
Books 44.5 (March 27, 1997): 41â“7.
Gadamer, Hans-Georg. âWriting and the Living Voice.â In Hans-Georg Gadamer on Educa-
tion, Poetry, and History: Applied Hermeneutics. Eds. Dieter Misgeld and Graeme Nichol-
son. Trans. Lawrence Schmidt and Monica Reuss. Albany: State Univ. of New York Press,
1992, 63â“71 (interviews conducted in 1983 and 1986).
. Truth and Method, 2d rev. ed. Trans. Joel Weinsheimer and Donald G. Marshall.
1960. Reprint, New York: Crossroad, 1989.
. Dialogue and Dialectic: Eight Hermeneutical Studies on Plato. Trans. P. Christopher
Smith. New Haven, CT: Yale Univ. Press, 1980.
Gonzalez, Francisco. Dialectic and Dialogue: Platoâ™s Practice of Philosophical Inquiry.
Evanston, IL: Northwestern Univ. Press, 1998.
Heidegger, Martin. The Essence of Truth. Trans. Ted Sadler. New York: Continuum, 2002
Hyde, Michael J., and Craig R. Smith. âHermeneutics and Rhetoric: A Seen but Unobserved
Relationship.â Q. J. of Speech 65.4 (1979): 347â“63.
Jost, Walter, and Michael J. Hyde, eds. Rhetoric and Hermeneutics in Our Time: A Reader.
New Haven, CT: Yale Univ. Press, 1997.
Llewellyn, Karl N. The Bramble Bush. Dobbs Ferry, NY: Oceana, 1981 (1929â“30 lectures
originally published in 1951).
. âOn Philosophy in American Law.â U. Pa. L. Rev. 82.3 (1934): 205â“12.
McCoy, Marina. Plato on the Rhetoric of Philosophers and Sophists. Cambridge: Cambridge
Univ. Press, 2008.
Mootz, Francis J., III. Rhetorical Knowledge in Legal Practice and Critical Legal Theory.
Tuscaloosa: Univ. of Alabama Press, 2006.
214 Francis J. Mootz III
Perelman, ChaÂ¨m, and Lucie Olbrechts-Tyteca. The New Rhetoric: A Treatise on Argumen-
tation. Trans. John Wilkinson and Purcell Weaver. 1958. Reprint, Notre Dame, IN: Univ.
of Notre Dame Press, 1969.
Plato. Republic. Trans. Paul Shorey. Cambridge, MA: Harvard Univ. Press, 1930.
Schrag, Calvin O. The Resources of Rationality: A Response to the Postmodern Challenge.
Bloomington: Indiana Univ. Press, 1992.
Scott, Robert L. âOn Viewing Rhetoric as Epistemic: Ten Years Later.â Cent. States Speech J.
27.4 (1977): 258â“66.
Sullivan, Robert R. Political Hermeneutics: The Early Thinking of Hans-Georg Gadamer.
University Park: Pennsylvania State Univ. Press, 1989.
Twining, William. Karl Llewellyn and the Realist Movement. 1973. Reprint, Norman: Univ.
of Oklahoma Press, 1985.
Vico, Giambattista. On the Study Methods of Our Time. Trans. Elio Gianturco. 1965 (trans-
lation published), 1609. Reprint, Ithaca, NY: Cornell Univ. Press, 1990.
I should like to raise a query, however, whether the distinction taken between
dictum and obiter dictum really corresponds to any deď¬nite usage of the legal
profession. Most lawyers, I think, regard dictum as the elliptical equivalent of
(Fuller 1934a: 551)
Even by his own count or criteria, âOn Philosophy in American Lawâ (PAL) must
reckon low on the list of Llewellynâ™s notable literary efforts (Fuller 1934b: 435). It
is a short and unprepossessing article, an occasional paper that seems hurriedly
written, slight in content, and signiď¬cantly lacking in the authorâ™s usual stylistic
ď¬‚air. It is sketchy in tone, low on humor, free of polemic, and rather parochial
in its references. Ostensibly focused on philosophy in American law, it in fact has
nothing explicit to say about philosophy or philosophers. More than that, the law
that is discussed by way of a few grand generalizations is far removed from the
doctrine or guild talk that represents the practice that the realist wishes to describe,
teach, and possibly also affect. To this we can add that, since its publication, the
article appears to have slipped rapidly into the obscurity of the stacks. It was not
reprinted in Llewellynâ™s collected essays and has seldom been referenced, let alone
revived. It is something of an enigma, a marginal piece, a symptomatic exercise
and as such should be addressed through its incidents, its rhetorical ď¬gures, its
dicta, its asterisk footnote, and other asides.
Published at what can be viewed as the midpoint of Llewellynâ™s career, after
his major statements on legal realism and close to the height of his fame, PAL is
on the surface a synoptic piece that offers an overview of the absence of philos-
ophy from the practice of American law. He is quite explicit on this. His theme
is not âthe changing array of verbalized philosophies.â He is not concerned with
âthe philosophers themselves, with whom indeed my acquaintance is but scantyâ
(Llewellyn 1934: 206). More interesting and productive than addressing philoso-
phies and philosophers, and despite his chosen title, Llewellyn wishes to excavate
and address implicit philosophy, tacit theories, ways of acting in the world. In fact
he puts it very strongly, the object of analysis is the âinarticulate,â the âunthought,â
the less than conscious â“ in a word, the nonphilosophical. Consistent with that
method, seeking to read the paper in a manner that is at least close to its own
| 215 |
216 Peter Goodrich
allusive form, in this brief essay I will attempt to extract the implicit thesis, the less-
than-conscious argument, the persistently buried proposition that PAL secretes
between its lines. It is that hidden message, I will argue, that most directly affects
legal theory now.
Start at a distance. Writing in the same volume of the University of Pennsylvania
Law Review, Lon Fuller, then a professor at Duke Law School, addresses Llewellynâ™s
work at length. Borrowing an analogy from the German free law exponent Herman
Kantorowicz, Fuller argues that modern judges torture legal doctrine much as
medieval judges tortured individuals. The evidence produced by torture, namely,
confessions, has now been ruled out and in the future the torture of doctrine â“
by ď¬ctions, analogies, theories â“ will also slip into desuetude: âThe millennium
when it arrives, will bring not only a humanitarian reform of our treatment of
legal doctrine, but also, I feel sure, a greater certainty in the prediction of judicial
decisionâ (Fuller 1934b: 435). Unwittingly perhaps, and inaccurate though the
prediction has transpired to be of the actual millennium, Fuller well captures the
two implicit faces of Llewellynâ™s project in PAL. As with Janus, one face looks
forward and one looks back; one looks to the public sphere of action and one
to the private realm of motive and tacit determination. The former is putatively
scientiď¬c and concerns prediction, certainty, the future; the latter is humanistic
and addresses the past as prologue, history as motor and cause of human action.
Each in their turn.
The larger point to be made is that Llewellynâ™s primary focus in PAL is on legal
history, the humanistic endeavor of collating and interpreting the textual past, the
record of precedent, as also of biography and scholarly enterprise. There is reference
to the passage toward the academicization of law, the trend toward school law, but
the key to the patterns and positions adopted lies rather in the humanistic quality
of the history, and speciď¬cally the accounting of affect and motive. The humanist
model of history views the textual past as a correspondence between a community
of friends and across generations. Books are letters within the humanist family; they
are how a scholar lives on and knowledge as communis opinio survives. The friends,
the brotherhood, the fraternity of lawyers relay the narrative of their community,
of their belonging and of the rupture that founded their sect or religion or polity.
The brothers did not arrive ex nihilo, and so despite the seemingly transnational
character of humanism, it always bears its local imaginary, its religious and national
tradition. Thus English common law was a community that purported to found
itself through its difference from and antagonism toward continental (Roman)
law. Unsurprisingly the American lawyers also needed their enemies and that is
precisely where Llewellyn (1934: 207) starts: âEngland was hated.â He goes on
to point out that English precedent was in fact rapidly adopted as American
precedent, that the enemy was internalized, but the key lies in the recognition that
at the origin of the U.S. legal system lay an affective antinomy, an emotive topos,
an ambivalent relation to its paternity and hence a conď¬‚icted sense of identity. It
grew from political struggle, was embroiled in assertions of national uniqueness,
and developed on the back of ideological incitements.
To offer the statement âEngland was hatedâ as an explanation of the early
recourse to natural law within the American system is surprising. Not to put too
ď¬ne a point on it, the attribution of motive suggests a vehement affective root
that drives the judicial decisions. Emotion, heat, passion, clearly suggest polemical
and rhetorical, political and partisan, motives underlying and dictating decisions.
It is only fair to state further that hate of the English is not very speciď¬c and
that hate itself, the antirrhetic or denunciatory tone of nationalistic polemic does
not dictate any speciď¬c outcomes. Indeed Llewellyn points out that the judges
ended up following the English precedents but effectively pretended they were
their own. The denunciatory animus of the nascent legal profession was not a
matter of substance but was necessary rather to bonding, to banding together as
a new communis opinio of a putatively unique American law. It was necessary to
the establishment of a custom prior to custom, an ius commune inherent in the
local and novel jurisdiction. The hatred, in other words, was political, proprietary,
and strongly polemical. It was also, by placement and period, foundational and
constitutive of ethos and practice. More than that, if vehement emotion, here a
denunciatory hatred of the prior sovereign and regime, founds the community and
order of law, it seems plausible to suppose that this fundamental ď¬ssure will live on.
The emotion that subtends the system will likely govern the order, the vehemence
that marks its origin, if untreated â“ which is to say, if unaddressed â“ will repeat
itself, and at the very least reappear in subsequent instances of structural shift or
identity challenge to lawyers and law. As Renaissance lawyers liked to put it, the
origin is instar omnium â“ it is worth all (Selden 1614: C.4.b.). From the ď¬rst, just
to make the point explicit, all else derives, all honor and dignity, ofď¬ce and role,
modus vivendi and style of practice.
Certainly for lawyers, the origin lives on, acts as precedent, deserves to be fol-
lowed, and this we might add simply by virtue of its priority, its ď¬rstness, unless
of course and exceptionally it is overruled. There is little sign of that in Ameri-
can law, and so it is a safe bet that such passion, rebellion, or hatred will appear
again, and again. Llewellyn (1934: 211) gives a further example in relation to the
turn of the twentieth century: âthe emotional revolt of laborers, farmers and small
business men . . . worked its way up into the thinking of the intellectuals.â Leave
aside the ethereal drift, workers below and intellectuals above, but acknowledge
that the syneciosis, the coupling of causes, treats revolt as organic to legal change.
First, the revolt against Anglican law and Englishness, and then latterly the revolt
against das Capital and its attendant legal positivism or law by ď¬nancial position.
In both instances it was less than total in effect. The object rebelled against was
internalized, made the rebelsâ™ own. Negation rules. Again, however, what is impor-
tant analytically is that the syneciosis is emotive; it marks revolt, irreverence, heat