Response to Goodrich on the Antirrhetic

Peter Goodrich suggests that recent efforts to revive legal rhetoric must reckon with the historical reality that lawyers use rhetoric for foundational, anti-perspectival reasons. Figured speech is designed as apologia: to identify error (which is knowable), to correct it according to established patterns of belief, and then to punish it by excluding the errant words from the discursive arena. Goodrich has located an irony in the new rhetoric of such thinkers as Chaim Perelman or James Boyd White: to their optimistic, pluralistic reliance on rhetoric to restore community, Goodrich opposes antirrhetically a vision of absolute belief systems that use rhetoric to attack the relativism of logocentricity, to destroy, in other words, the notion itself of multifaceted and ideationally open dialogue.' If rhetoric is revived in its true sense, the word will fail. The "constitution of community" to which the new rhetoricians aspire (partly hoping thereby to dispel the threat of formalism they otherwise fear2) will fail to take place in part because of the very conjuration of rhetoric they are providing. Left to develop through traditional, non-rhetorically based legal means, the sometimes stodgy language of the law finds a way to grow and accommodate new voices and new demands;3 but rendered self-consciously rhetorical, legal speech is more likely to fold in on itself, to become defensive, to adapt the antirrhetic mode. Against the flawed optimism of the new lawtalkers, Goodrich thus situates a "forensic rhetoric" that, in harmony with legal history, is "epistemological and semiotic." Goodrich roots legal rhetoric in values, not in process. The activity of "dialogue," standing alone, serves no purpose but to deflect the energies of the less powerful speaker, to further the usually unspoken ultimate interests of the more powerful.4 The result of a rhetoricized law, although somewhat prettied up by an appeal to pluralism, is the same as it has always been: "to dispute and exclude, to dissimulate and destroy."5 A rhetorics grounded solely in a genre of civic speech is a rhetorics unaware of history and unmindful of its own covert, but ultimately detectable, values.