Critical legal rhetorics: The theory and practice of law in a postmodern world

Abstract

Traditional liberal theories of jurisprudence consider the “rule of law” as a collection of rules and principles created without the help of rhetoric. From this perspective the judicial system is ideally a neutral forum wherein experts interpret rather than create the law. This essay claims that this orthodox view of the relationship between law and rhetoric needs extensive revision, and argues the need for a critical legal rhetoric that examines the ways in which the law is constituted and enacted beyond the domain of Supreme Court decision making. By illustrating how the rights talk found in appellate decisions can serve as sword, shield, and menace, this essay invites critics to consider seriously the participatory role that ordinary citizens take in the creation of their own legal culture. The author contends that in the case of reproductive rights, extra‐judicial public arguments provided part of the fragmentary materials that called into question the rule of law which allowed for the compulsory ster...