Abstract
Legal positivists regard law as written texts enacted and disseminated to be followed as rules. But this project rests on deeply mistaken conceptions about how language works. No written text stands alone and conveys a “plain meaning.” Law is expressed through language, but language does not exhaust the meaning of the law. Legal language always already draws on the ordinary language of the community, which, in turn, draws on a deeply symbolic realm, which it can never fully subordinate or explain. Rhetoric brings the symbolic substrate to life. Legal actors constantly search for the right words to deliberate with others. There is a resonant world to embrace and experience, but it can never be fully captured, understood, or expressed in our legal texts, which hover precariously above our shared ordinary language, which, in turn, is rooted in constitutive symbols that are sustained through an endless spiral of mediation, translation, and application. Nevertheless, we may reason together in a manner that generates rhetorical knowledge even if legal positivism is a failure.
Keywords
Letting the days go by, let the water hold me down Letting the days go by, water flowing underground Into the blue again, into the silent water Under the rocks and stones, there is water underground —Talking Heads, “Once in a Lifetime” The violence of language consists in its effort to capture the ineffable and, hence, to destroy it, toseize hold of that which must remain elusive forlanguage to operate as a living thing. – Judith Butler, Excitable Speech:
A Politics of the Performative
In the great battle between the traditions of natural law and legal positivism, the latter has surely prevailed in the United States. 1 We no longer believe that a brooding omnipresence in the sky—whether ordained by a deity or inherent to the structure of human reason—will provide us with unequivocal legal guidance. Positivists place their reliance on enacted laws that are written and disseminated to be followed as rules. But this project rests on deeply mistaken conceptions about how language works. Many contemporary theorists assume that we can deploy language to accurately represent a state of affairs and that this representation has a “fixed” meaning that is subject to rational—even if, regrettably, not logical—elaboration. We overcome the ephemeral character of the spoken word by fixing legal language in writing, and then we regard legal reasoning as nothing more than a disciplined tool for excavating meaning out of stable legal documents.
The positivist project starts at the top, with a written constitution that embodies our core values, subject to written exegesis (but not amendment) by the courts. The Constitution implements a republican form of government that ensures that statutes and regulations are openly debated and published. Lawyers argue in written briefs, and in colloquies that are reduced to a written transcript. Jurors complete written interrogatories to demonstrate their adherence to the law. Judges prepare written opinions and dissents to express their reasoning. When we claim that our legal system is founded on rule of law values, then, what we really mean to say is that judges apply preexisting written rules objectively to the case at hand and do not determine the just result for the individual case through casuistic reasoning shaded by their subjective desires. 2 To paraphrase Hans-Georg Gadamer, law that can be understood is language, and—in the Western tradition of constitutional democracies—legal language is reduced to writing in the guiding documents that we pledge to obey.
The standard account holds that the rule of law derives from our commitment to distill the law into written rules that may be applied consistently to determine the correct result in particular legal cases. But can the legal system subsist solely on the thin support provided by written legal rules? Ambiguity and vagueness are the hallmarks of a living language, and so most legal theorists are forced to identify a method to concretize legal meaning into an unchanging historical artifact. These theorists strive to achieve certainty but have no credible means of overcoming the linguistic drift of ordinary language over time. I have argued that the so-called “originalist” approach to legal language—the idea that we can anchor interpretation in a “fixed” meaning from the past—is ontologically bankrupt. 3 What, then, are we to make of our legal system, which purports to be wholly grounded in written texts that have determinate and persistent meanings?
In this article, I critique the assumption that law can be fully understood and expressed through the semantic meaning of legal texts. In contrast to the great majority of theorists who seek the grail of certainty by virtue of the written character of laws, I argue that Hans-Georg Gadamer’s philosophical hermeneutics provides a proper account of how legal language (indeed, all language) is meaningful despite the lack of a safety net that ensures determinate meaning. No written text stands alone and conveys a “plain meaning.” Law is expressed through language, but language does not exhaust the meaning of the law. Legal language always already draws on the ordinary language of the community, which, in turn, draws on a deeply symbolic realm, which it can never fully subordinate or explain. The abiding symbolic realm is essential to law, but it has been nearly universally ignored, especially in the wake of the recent positivist ascendency of rules expressed in language. All that we can see before us today is an endless sea of authoritative language and bureaucratic institutions. But without the buoyant web of symbols that persist beneath the waves, legal language would be cast adrift and ultimately rendered impotent. Attempting to press legal language into the service of objective rule-following runs into the harsh reality that this is an impossible task.
At this juncture, one might expect that I will provide a carefully delineated definition of a “symbol” that can be used to sharpen the inquiry, but this would confuse the role of a “sign” with the symbolic realm. A word may operate as a sign of something else in a rather perfunctory manner of correspondence, but the symbolic life force of language is not susceptible to delineation through language. This is not to suggest a need to look to a natural law realm that exists outside of language, but rather to insist that our use of language is always symbolically charged with meaning that goes beyond words as simple signifiers. I have long argued that the legal system is best understood through the lens of philosophical hermeneutics. 4 From Martin Heidegger’s generative insight that “language is the house of Being,” to Gadamer’s insistence that “Being that can be understood is language,” philosophical hermeneutics develops a hermeneutical ontology grounded in linguisticality. This commitment would seem to foreclose any concept of meaning that exists “beyond” language, and so it is important to avoid misunderstandings at the outset. There is no “extralinguistic” source of legal meaning, something that is above and beyond language itself, and yet somehow accessible to philosophical inquiry. We must ever be wary of the lurking natural lawyer who wants to find an extralinguistic source of authority, even as we are equally diligent to acknowledge that our language is always rooted in a pre-given symbolic realm. The symbolic register is an essential element of every linguistic expression. When we use language we are enveloped in a metaphoric play that is indeterminate, but which expresses meaning by mediating our shared symbols. 5
A symbol is more than a sign pointing directly to a feature of the world. A symbol represents a more complex communicative event. Consider the common symbol of justice in the Western tradition: a blindfolded woman holding a balancing scale while also bearing a sword and parchment. This is not a representation of an actual practice in the courts, but rather a symbol of our commitment to justice. The scales will balance the arguments truly, and the blindfold ensures that the judge remains neutral, subject only to the prudent assessment of the competing equities. Judgment is a powerful act in the legal system, backed by the force of the sword, but also tempered by the written law to which we pledge allegiance as the determinant of the weight of the arguments given. Justice gendered as a woman certainly plays out in the arguments made to the court. Suffice it to say that when discussing a claim of “justice” in a particular case, numerous symbols subtend the argument. We understand that it is not just a matter of the parchment: the law is sustained by numerous symbols that animate its texts.
How does ordinary language engage with this symbolic realm to sustain meaning? Rhetoric brings the symbolic substrate to life through language. Legal actors constantly search for the right word to deliberate with another because it is impossible to capture the full potential of legal meaning in a single moment and then wield that linguistic artifact as an unvarying dogma. Law is language, but that language is rooted in a symbolic indwelling that is continually elaborated rhetorically. When arguing against an injustice advocates draw on the powerful symbol of Lady Justice in many ways, most of which are not even conscious. Asking the court to “weigh the equities” calls upon the judge to understand that the law is not pregiven as inert principles, but rather is carried out with a scale that tips back and forth. Despite millennia of careful reflection on the nature of language, this reality remains opaque to us. In the modern era of secular legal positivism we, quite literally, have no vocabulary with which to speak this truth. Our theories of legal discourse exist in a profound ontological gap. 6
Thus, this article does not presume to fully expose and then explain the symbolic realm that sustains legal language. My thesis is that the attempt to do so would represent a profound mistake regarding the relationship of the language of self-reflection to the symbolic field from which it arises. Trying to explicate the symbolic substrate of language is a fruitless quest—like trying to spin quickly enough to see the back of one’s head—because symbols are operating before and behind all such efforts. The most we can hope to do is to understand our situation; namely, to understand the unavoidable inability of written legal language to fully explicate our rhetorically grounded practices. In a Wittgensteinian sense, then, this article is therapeutic rather than prescriptive.
This article has four parts. First, I assess the linguistic character of understanding through the lens of philosophical hermeneutics. Next, I explore the symbolic realm that sustains our linguisticality. Third, I demonstrate that rhetoric is the connection between symbol and word, and therefore is at the heart of legal understanding. Finally, I conclude that the positivist faith in legal language must be abandoned if we are to understand, to truly understand, how we live together under the law that is rhetorically secured.
I. Language
Being that can be understood is language. —Hans-Georg Gadamer, Truth and Method Language surrounds us from the very beginning of our life and from the earliest dawning of our consciousness. It accompanies every step of our intellectual development. Man cannot breathe outside this medium, for it is like a spiritual atmosphere which pervades his thoughts and his feelings, his perceptions and his concepts. – Ernst Cassirer, Symbol, Myth and Culture
Plato’s arresting observation that thinking is the dialogue of the soul with itself suggests that we cannot rise above or get behind the linguistic character of self-reflection. 7 We understand our world only through language because our world is prefigured through previous communal exchanges. This is not to deny the reality of the unspeaking empirical world, but rather to acknowledge that we understand that world only through a shared language that pre-exists and subtends our efforts of reflection. Hermeneutic philosophy is nothing else if not an assertion of the linguistic nature of our being-in-the-world with others.
Gadamer concludes Truth and Method by arguing that language is the horizon of what he terms a “hermeneutic ontology.” 8 Language, Gadamer emphasizes, “is not just one of man’s possessions in the world; rather, on it depends the fact that man as a world at all,” such that “hermeneutical experience is verbal in nature.” 9 Language operates in coming to an understanding with another: it is dialogical and therefore inexhaustible in its very nature. Language is not deployed as a tool by a self-directed individual; it is a shared pre-given experience of the world that is constantly appropriated through interpretation. 10 The rigor of interpretation comes from embracing the hermeneutic ethic of holding oneself open to the claims of the other through “uninterrupted listening.” 11 This “hermeneutical situation is not a regrettable distortion that affects the purity of understanding, but the condition of its possibility.” 12
Thus, when Gadamer asserts that Being that can be understood is language he is not claiming that only language is capable of generating understanding, or that there is nothing other than language. Rather, he is unseating the cogito as the arbiter of meaning and emphasizing that we always understand through dialogue with another, even if it is the dialogue of our soul with itself. The unending generation of meaning is possible because understanding occurs only through application in a particular context. Meaning is not layered over a nonlinguistic reality, meaning is a linguistic accomplishment that draws on the horizontal character of our linguistic being-with-others. Meaning emerges only in application as an experience (Ehrfarung), and application is articulated in dialogue. Gadamer terms this the “event structure” of understanding: meaning is an event brought forth in language.
13
As he famously concludes,
Someone who understands is always already drawn into an event through which meaning asserts itself . . . When we understand a text, what is meaningful in it captivates us just as the beautiful captivates us. It has asserted itself and captivated us before we can come to ourselves and be in a position to test the claim to meaning that it makes . . . In understanding we are drawn into an event of truth and arrive, as it were, too late, if we want to know what we are supposed to believe.
14
And so, we might rephrase Gadamer’s dictum more accurately as: “We may understand Being only within the language that structures it, but Being is not exhausted by words that beings speak together.” 15
How do we characterize the nonlinguistic reality that can be understood only through language? Gadamer argues that myth girds our linguistic practices, as reflected in psychoanalytic characterizations of the unconscious that subtends our rational faculties. 16 Myths in turn tap into symbols that can never be exhausted by our articulation of meaning in specific instances. Language is our openness to a world that we cannot render fully present in words. Gadamer explains this by considering the paradox that we seek to understand something that is utterly ineffable: death. 17 How can language express our understanding of death when thinking is the opposite of non-being, an existential rejection of what death entails? 18 “Thinking death already seems to transform death into something that it is not.” 19 But this very aporia illuminates the “ontological honour” of human beings who continue to converse about that which is beyond language, bearing up to the unintelligibility of death. In the rituals attached to the cult of the grave, understanding arises out of shared symbols even though they cannot be fully articulated in ordinary language. As Alphonso Lingis emphasizes, being with another as they face death is not a matter of what one says, but rather that one is there attempting to say something that language cannot say. 20
We achieve understanding only in language, but it is not the language of freestanding propositions and assertions that are used in rarified situations. Ordinary language is not perspicacious and stable. Instead, our linguisticality is a participation in a deeper realm of symbolic meaning from which language draws and contributes by creating myths and ordaining rituals. We must turn from the language we speak to catch a glimpse of the symbols that persist and sustain our being-together in conversation and reflection. Legal language in particular is rooted in symbols that animate our understanding, thus requiring a hermeneutic sensitivity that is all too rare in our positivist age. In the next section, I consider the path-breaking work of Paul Ricoeur on the operation of symbols, connecting it to the work by Ernst Cassirer and Suzanne Langer, who have explored the hermeneutics of symbols in great depth.
II. Symbol
One of the gravest problems of our day is the lack of commitment to common symbols. —Mary Douglas, Natural Symbols That unity which I am in the habit of calling the unity of symbolic thought and symbolic representations cannot be abstracted from its various manifestations. It cannot be conceived as a single, self-existent isolated being. It is a condition of all the constructive processes of the mind, a force that pervades all our mental operations and energies; but we must not hypostatize this force, we must not conceive it in the way of a separate physical or metaphysical existence. —Ernst Cassirer, Symbol, Myth and Culture
2. The Hermeneutics of Symbols
Paul Ricoeur’s prolific career was devoted in part to exploring how the polyvalent qualities of the symbol engender understanding. In ancient times, symbols were narratively structured as myths that could be enacted through community rituals. Civic participation brought the symbolic realm to bear in communal life. Ricoeur insists that we must return to the symbolic basis of our engagement with the world. “In the very age in which our language is becoming more precise, more univocal, more technical . . . it is in this age of discourse that we wish to recharge language, start again from the fullness of language.” 21
Although less obvious today, symbols continue to be the fountainhead of reflection. “A meditation on symbols starts from language that already exists and that has in some fashion already said everything. It comes down not to thought without any presuppositions. What the symbol gives, gives rise to thought.” 22 Put more directly, thinking is the activity of a person who is already enveloped in the “inexhaustible richness of meaning” of symbols. 23 Language arises out of an engagement with “the enormous burden of meaning, contained in prerational ‘symbols’, like those contained in the Bible, prior to any elaboration of an abstract language.” 24 Ricoeur’s philosophy of the symbol therefore poses a fundamental challenge to the Cartesian cogito. 25
The symbol can provoke thinking using a double gesture. On one hand, the symbol is the subject of thinking, in the sense that is a topic for exegesis. On the other hand, it is the symbol that motivates one to attend to the world in the first place. As Ricoeur explains,
“Symbol gives rise to thought.” This maxim that I find so appealing says two things. The symbol gives: I do not posit its meaning, the symbol gives it; but what it gives is something for thought, something to think about. First the giving, then the positing; the phrase suggests, therefore, both that all has already been said in enigma, and yet that it is necessary ever to begin again and rebegin everything in the dimension of thought.
26
There is no place outside the symbolic realm where we can critically assess a symbol; critique is not the demystification of symbols writ large but rather the symbolic deconstruction and reconstruction of prior symbols with new symbols
27
:
I am convinced that we must think, not behind the symbols, but starting from symbols, according to symbols, that their substance is indestructible, that they constitute the revealing substrate of speech which lives among men. In short, the symbol gives rise to thought. On the other hand, a further peril lies in wait for us: that of repeating the symbol in a mime of rationality, or rationalizing symbols as such, and thereby forcing them on the imaginative plane where they are born and take shape.
28
The power of symbols flows from their inherent ambiguity, which always holds the potential for a new understanding. 29
Ricoeur illustrates his philosophy of the symbol by providing a detailed exploration of the experience of “evil” and the symbolic function of “original sin.” 30 We can take up symbols only after they have already shaped our understanding. There is no “symbol” that exists in itself as an object of our gaze. “In contrast to philosophies with starting points, a mediation on symbols starts from the fullness of language and of meaning already there; it begins from within language which has already taken place and in which everything in a certain sense has already been said.” 31 His lengthy meditation on the function of original sin as a myth that is expressed through narrative is an effort to think within the symbolic experience of understanding. Symbols do not operate as mere signs of a settled concept but rather are a generative force of thinking. 32
Ernst Cassirer’s work provides support for Ricoeur’s hermeneutic symbolism beyond Ricoeur’s theological focus. Cassirer regards consciousness as a wholly “symbolizing activity,” such that one does not ever apprehend anything that is purely “given” in perception. 33 Objectifying language as a topic for scientific study obscures the symbols that make understanding through language possible. 34 The ego does not create reality, but each person must interpret the generative symbols in response to the demands facing society. 35 In times of social crisis, such as the student revolts of the 1960s, we must draw new meanings from the symbolic realm to address changing social needs. 36
Philosopher Suzanne Langer urged a new beginning for the philosophy that is rooted in narratives and rituals that draw meaning from symbols, rather than continuing the celebration of Western rationalism that has run its course. 37 Although less well known than Ricoeur or Cassirer, Langer most forcefully argued that “symbolism is the recognized key to that mental life which is characteristically human and above the level of sheer animals.” 38 There is no brute perception: symbols simultaneously emerge from, and shape our experience of the world at a fundamental level. 39 We constantly engage symbols prior to our ability to critically appraise them, and so we inevitably arrive too late when we attempt to understand why we think as we do. 40 Ricoeur, Cassirer, and Langer establish a sophisticated account of symbolic meaning as the touchstone of human understanding.
2.1. Law and Symbols
Attempting to understand the role of symbols as an abstract philosophical matter is difficult, and so I now turn to the particular context in which legal meaning emerges. We need not speculate about how legal practice relies on symbols because Ricoeur regarded legal discourse as an exemplary symbolic activity. As he puts it, the discourse of justice is argumentation, and argumentation exists between sophistical flourish and the compelling force of logic and mathematics. 41 Legal argumentation melds logic and ethics in an appeal to the better meaning of our governing social symbols, operating under the injunction to attend to the arguments of the other side as legitimate claims on our symbolic being-together-with-others. 42 Efforts to reduce legal practice to a formal logic strip legal language of its symbolic resonance. As Antoine Garapon summarizes, Ricoeur sought to understand law through its symbolism rather than abstracting from symbols to attend to semantic wordplay. 43
Symbolizing myths are too often regarded as historical anachronisms that preceded the Age of Reason. “For many years, training for lawyers has concentrated on the study of texts: texts that can be used directly by practitioners . . . . Legal theory is thus amputated from its symbolic part, perhaps because we do not know what to do with it.” 44 In response, Ricoeur looks to give symbols an “active role in justice” and invites “lawyers to take hold of symbols so as to render justice with them, that is to say in full awareness of what they are doing.” 45 We must be careful not to misunderstand his reference to “full awareness,” as symbols are never fully rendered explicit. 46 Being fully aware means surrendering to the power and inevitability of symbols and not resting content with the surface linguistic meanings generated by bureaucratic institutions.
Thurman Arnold, a staunch Legal Realist, developed a sophisticated account of the operation of legal symbols in his effort to explain the transition to the modern administrative state of the New Deal in response to severe economic and social stressors during the Great Depression. 47 The web of symbols sustaining the ideology of capitalism could not be cast aside as if from a neutral perch but those symbols were capacious enough to support an evolution of thought that gave rise to new meanings. 48 Symbols are at once a sustaining, conservative force and also a disruptive, evolutionary force. 49 Knowing how to tap into the symbols that support legal language is critical for those on both sides of jurisprudential debates. Arnold “suggested that the best way to think about the judicial process was not from the vantage point of logic, but from the perspective of dramaturgy . . . There is a sea change of new symbols that we must [narratively] integrate, not a universal command and control [voice of reason].” 50
Although his contemporaries often misunderstood him, Arnold’s innovative work united the social scientific impulse of the Realism movement with the philosophical revelation of the symbolic basis for legal and political practices. Arnold understood that we could not cast away the symbolic resonance of legal tradition with an unremitting and radical demystification because symbols “form the terrain upon which the struggle for political and legal change takes place. Realists sought to debunk symbols; Arnold sought to understand and use them to reshape the public’s beliefs.”
51
He well understood that the legal “was epiphenomenal of a symbolic base.”
52
This recognition distinguished Arnold’s work from that of most Realists.
Arnold therefore proposed a shift from the mere critique of law’s surface forms and practices, or its temporal inefficiencies, to an inquiry into the deeper spiritual, symbolic forms and practices that shape “Law” as a field of governance. This shift led Arnold away from realism. Realism’s reformist anti-formalism, he believed, blinded it to the pervasiveness of symbols in the discourse of law and governance generally. Although its debunking of formalism’s most deeply held attachments to concepts and rules enabled a better understanding of law and other basic principles of governance and economics, realism unfairly assumed attorneys and ordinary laypeople to be “unconscious hypocrites” or “dupes,” and therefore resulted in “making the world look unpleasant.”
53
Arnold deftly explained the resistance to the New Deal in terms of the symbolic power of “rugged individualism” overcoming “government planning,” and then charted how the symbols of the New Deal slowly were able to secure popular support. 54
The New Deal ultimately was embraced within the symbolic structure of American law but this victory was not secured by recourse to a neutral and objective scientific demonstration. Rather, the commitment to many conflicting values and goals embodied in our country’s rich symbols provided enough flexibility for the peaceful transition to new governing norms that tapped into many of these same symbols.
55
Arnold
argued that the New Deal must adopt, or at least adapt, the prevailing theories of its time to be successful. The symbols of governance thus insure against radical social and political change by providing an historically stable medium through which the demands of outsiders can achieve recognition and approval without upsetting the structures of power and the distribution of resources.
56
The New Deal was an elite, managed political movement that successfully deployed symbols for a functional end to replace what Arnold saw as the outmoded ideals of an older creed with a modern and capitalist economic, political, and legal order. It’s ultimate success on the spiritual plane of symbols as well as on the temporal plane of objective results came not simply from a rational debunking of its opposition, but also, and equally importantly, from its credible adaptation and manipulation of prevailing symbols.
57
But the attention to symbols quickly faded from view in the face of extreme positivist accounts of a determinant legal language.
Arnold’s jurisprudential insights failed to gain widespread adherence, but there have been other efforts to explore the symbolic ground of legal meaning.
58
Most importantly, Harold Berman confronted the political, social, and legal tumult of the 1960s by charting the operation of symbols in a book that has only recently been published posthumously.
59
His goal was no less than fostering a common law legal language that could bring the world together. “Through language, then, the community makes us what we are, just as through language we make the community what it is. Language is the dramatic process by which a community is made and remade, a process of what might be called ‘communification.’”
60
Reformers have made the mistake of regarding legal language as a technical puzzle to solve rather than a dynamic site for community engagement and building.
61
Unfortunately, many critiques of law are based on an inaccurate understanding of language:
The critics and reformers have often accepted a mechanistic theory which treats language simply as a tool to be used by reason and will, rather than as an integral part of man’s whole personality and hence also a shaper of reason and will. They have accepted a sharp distinction between the language of intellect and the language of emotion. They have started from the premise that words (symbols) are to be distinguished from things (referents), and that words (or at least the so-called non-emotive words) have no other proper function than to convey an accurate picture, a photograph, as it were, of the things to which they refer.
The legal system exemplifies the manner in words develop new meanings through the deliberate, gradual, and explicit cultivation of the community’s symbolic resources, although we hide this reality with a veneer of logical precision. 62 In this respect, the United States Constitution is no less a symbolic resource than the New Testament is to Christianity. 63
III. Rhetoric
Let rhetoric be [defined as] an ability, in each [particular] case, to see the available means of persuasion.
– Aristotle, On Rhetoric
So rhetoric becomes the ability to “see” the emotionally defined situations in which we find ourselves (our Befindlichkeit) on at least two interconnected levels: We are able to see a situation as worthy of our care through the urgency of the mood it arouses; and we are further able to see the linguistic resources available to us in the situation to cope appropriately with that mood. But the possibilities for seeing that seeing that rhetoric contains go deeper still. Rhetorical seeing can reflect on itself and observe “what is persuasive about the given”—how words move us through a given mood to a particular action. That is, rhetoric carries with it the capacity to see how we are led almost imperceptibly from life’s possibilities as they befall us to the life we make with others through speech. – Allen Scult, “Aristotle’s Rhetoric as Ontology: A Heideggerian Reading”
Rhetoric is the capacity to draw on the pre-given world of symbols through linguistic efforts to understand and shape our shared world. Because the law is so deeply symbolic, rhetoric and legal practice were closely joined for much of modern Western history. Only in the recent positivist era have we sundered rhetoric from law in the search for the grail of linguistic certainty. Rhetoric is nothing less than the use of language to engage symbols, rituals, and myths in the creation of legal meaning. Rhetoric plays out in elemental rituals, such as being “admitted before the bar” in court and then being granted permission “to approach” the raised bench and to plead one’s case on behalf of another to an anonymized, black-robed justice. Rhetoric is much more than ritual activity, as it also involves building arguments from the deeply symbolic resources of the tradition, leading to what I have termed “rhetorical knowledge.”
Martin Heidegger’s radical reinterpretation of Aristotle’s Rhetoric provides an ontological account of rhetoric as a way of existence rather than a collection of linguistic tools used to convey what the subject already knows about the world.
64
In other words, the meaning of Being comes to human beings in a rhetorical form, and that rhetorical form lies in fragments, scatter amidst the available means of persuasion in the particular case. The philosopher’s gaze sees, not only how the fragments might fit together as a persuasive whole, but also how that very process of fitting defines us and reflects our relationship to Being as such.
65
We have a world only by virtue of language that empowers us to rhetorically adapt shared symbols to manage a social realm that is at once stable and constantly open to development.
Consider the commonplace argument for free speech couched in terms of providing a “marketplace of ideas” from which we can choose the most productive opinions. This metaphor is a powerful symbol that shapes our thinking and language as the legal system comes to grips with the dilemmas raised by the commitment to freedom of speech. The symbol immediately provokes thought along numerous lines. Can everyone participate in the market equally, or are there barriers? Is there a single metric of value (money) that renders the items in the marketplace commensurable? Is consumer choice equivalent to truth, or is truth even the criterion? The famous symbol inevitably channels our thinking in numerous ways as we work through First Amendment doctrine using a market metaphor.
The power of a symbol is perhaps revealed most clearly when advocates embrace competing symbols. In Texas v. Johnson, Chief Justice Rehnquist dissented from the majority’s holding that burning the American flag is protected speech under the First Amendment, primarily by drawing on the symbolic importance of the flag.
The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular party, and it does not represent any particular philosophy. The flag is not simply an “idea” or a “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 states, which make criminal the public burning of the flag.
66
The rhetorical features of the opinion, which include recitations of poems and the national anthem, can be construed as establishing a limit on what may be deemed properly bought and sold in “the marketplace of ideas.”
This is not to say that legal practitioners have a sophisticated understanding of the need for the rhetorical recovery of symbolic meaning. From a positivist perspective, symbols are often construed as mere signs, as stand-ins for discrete semantic messages that would likely better be expressed in language. Thus, in West Virginia Board of Education v. Barnette, 67 the court held that it was unconstitutional for public schools to compel teachers and students to salute the American flag. Against the claim that this was merely a symbolic gesture rather than compelled speech, the court argued that “symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind.” 68 This narrow understanding of a symbol creates a confusing legacy of court opinions attempting to deal with profoundly symbolic expressions. On one hand, Justice Alito minimized the symbolic reverberations of a Christian cross installed in a public area in remembrance of the soldiers who died in World War I, concluding that the cross had lost its particularly religious valence over the years and earned a cultural resonance related to war memorials. 69 On the other hand, Justice Thomas criticized his fellow Justices for misunderstanding the profound impact that a burning cross has on African Americans, given its legacy as a symbol of unrestrained terror. 70 There is only the halting beginning of an effort to recuperate symbolic meaning in these cases.
What guidance may lawyers and judges draw upon for engaging with the symbolic substrate of the law given that symbols do not reveal a clear and determinant meaning, nor are they merely decorative embellishments? I argue that we can achieve “rhetorical knowledge” in our hermeneutical practices, which is an achievement that is between a strict juridical science and mere sophistry. 71 Continually applying guiding symbols through legal argumentation has an ongoing cumulative effect. Drawing from Gadamer’s philosophical hermeneutics and Chaïm Perelman’s new rhetoric, I argue that the epistemic character of legal argumentation is no less real than logical or empirical knowledge. 72 Rhetorical knowledge is the product of practical reasoning that neither achieves certitude nor collapses into irrationalism. Rhetorical appeals to shared symbols can sustain legal practice as a reasonable—even if not thoroughly rationalized—social activity. As Robert Scott explains, seeing “in a situation possibilities that are possibilities for us and deciding to act upon some of these possibilities but not others must be an important constituent of what we mean by human knowledge.” 73
Over millennia we have honed our ability to reason about practical matters that do not admit certainty, and in today’s society, this capacity is perhaps best illustrated by the arguments and judgments of lawyers and judges:
Practical judgment is an aptitude for assessing, evaluating, and choosing in the absence of certainties or principles that dictate or generate right answers. Judges cannot rely on algorithms. Their efforts always exceed adherence to rules and are not tightly tethered to law. Still, the practical judge reveres good rules and laws. The word judge, after all derives from the Latin judicem, which refers to a speaker (discus) of law (jus). The activity of judging, though not circumscribed by the boundaries posed by tenets and precepts, is complementary to rule-making and rule-following. The exercise of judgement relies on rules, principles, and laws for support, even as it transcends or transforms them. Hence Aristotle’s man of practical wisdom, the phronimos, does not ignore rules and models, or dispense justice without criteria. He is observant of principles and, at the same time open to their modification. He begins with nomoi—established law—and employs practical wisdom to determine how it should be applied in particular situations and when departures are warranted. Rules provide the guideposts for inquiry and critical reflection. When an established principle of law comes to serve as a final destination rather than a launching pad for inquiry and deliberation, practical judgment is precluded.
74
Consider our use of maxims in ordinary, everyday reasoning together. “Too many cooks spoil the broth” and “many hands make light work” are both equally true in their own right, but learning how to determine which is the best rule for the present case at hand requires the cultivation of wisdom in the form of rhetorical knowledge.
Rhetorically drawing from communal symbols to frame persuasive arguments is not a matter of stylish flourish; rather, it is foundational to how we think and understand the world around us. Consider the situation immediately following World War II in which the prevailing countries that had joined together to form the United Nations sought to use legal means to sanction and deter the Axis Powers. How could such an unprecedented prosecution aspire to be something more than winners writing history and meting out vengeful punishment? In his opening argument for the prosecution, Justice Robert Jackson (well known and admired for effectively framing his judgments rhetorically
75
) adroitly established the legitimacy and goals of the Tribunal in terms of the deepest symbolic resources of our legal tradition. Justice Jackson explains the nature of his rhetorical strategy in the course of making his argument, demonstrating both subtlety and artistry as well as a remarkable self-awareness. In Jackson’s opening statement, we clearly see language being deployed rhetorically to bring the community together in an unprecedented endeavor by drawing on multiple symbols of justice.
In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world. . . . . What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.
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The criminal charges against individual Nazi officials expressly drew on the symbolic response to the eruption of evil in Western democracies. How else could the prosecution proceed in the face of the legal challenge but embrace the symbolic resources available to charge the Nazi perpetrators with crimes against humanity? While many might regard this as a limited situation, a foundational exception to the ordinary work-a-day world of legal practice, I believe the opposite is true. Justice Jackson’s remarkable opening argument exemplifies the very heart of legal argumentation and judicial decision-making.
IV. Law Lives Through Symbolically Rooted Language that is Developed and Expressed Rhetorically
Overhead the albatross Hangs motionless upon the air And deep beneath the rolling waves In labyrinths of coral caves The echo of a distant time Comes willowing across the sand —Pink Floyd, “Echoes”
We inhabit our world through language, but our linguistic comportment is possible only after the world speaks to us through, and binds us together with, symbols. Symbols reverberate through our shared rituals, calling for us to surrender to a mitsein in the deepest of senses. Symbols speak to us collectively, and we always arrive too late if we attempt to get behind the symbol and claim its reason as our achievement. We can only give voice to the symbolic realm in our conversations with others after the symbols have already done their work. Language works in the same manner as symbolic meaning; it is a thoroughly symbolic experience. We have taken up shared words before we ever speak, and our speaking can never catch up to the entirety of our communal language, as we struggle to understand and to be understood. We can give voice to symbols rhetorically, but this is a tentative step that remains always unfulfilled. The law abides through this never-ending rhetorical engagement. We must steadfastly refuse to reduce law to the grammarian’s textual exegesis of a precise vocabulary. The law speaks with authority, but it cannot silence the murmur of the world that supports its claims on us. Without language, law is mute. But without a symbol, the law is impotent. We must surrender to our symbolic fate if we are to promote reasoning together.
Lawyers tend to regard language as a precise tool, but we share in language a way of experiencing and being that is not ready-to-hand like a hatchet, but more like a communion. It is that we say, not what we say.
It is computer technology that shaped and forms contemporary communication theory. But so little of what we say to one another makes any sense! So little of it makes any pretense to be taken seriously, so much of it is simple malarkey, in which we indulge ourselves with the same warm visceral pleasure that we indulge in belching and passing air. It really is, Nietzsche long ago pointed out, bad taste to make serious pronouncements and work our syllogistically valid arguments in civilized company. . . . All these stammers, exclamations, slurrings, murmurs, rumblings, cooings, and laughter, all this noise we make when we are together makes it possible to view us as struggling, together, to jam the unequivocal voice of the outsider: the facilitator of communication, the prosopopeia of maximal elimination of noise, so as to hear the distant rumble of the world and its demons in the midst of the ideal city of human communication.
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To this insight, one may only genuflect silently and move on. There is a resonant world to embrace and experience, but it can never be fully captured, understood, or expressed in our legal texts, which hover precariously above our shared ordinary language, which, in turn, is rooted in constitutive symbols that are sustained through an endless spiral of mediation, translation, and application.
As sure as the sun rising tomorrow morning, at this point someone will insist that I should develop a methodological approach that can illuminate this symbolic reality clearly and distinctly, thereby enabling us to escape our hermeneutical flux and to reveal the clear meaning of legal texts.
God help us. 78
Footnotes
Acknowledgements
I am grateful to John Arthos for important conversations at the very beginning of this project several years ago, and particularly for pointing me to Catherine Langford’s work on symbols, I also thank my longtime colleague and friend, Jim Gardner, for commenting on an earlier draft, Finally, the anonymous reviewer made very helpful suggestions.
1.
Two decisions in particular illustrate the victory of positivism early in the last century. First, in Erie Railroad Co. v. Tompkins, 58 U.S. 817, 822 (1938), the Supreme Court disclaimed the existence of a federal common law, leaving federal courts to apply state common law when sitting in diversity. States, in turn, have subjugated their common law jurisprudence to legislative power.
Second, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 392 (1937), the court famously abrogated Lochner v. New York, 198 U.S. 45 (1905) with the notorious “switch in time that saved nine.” Arguably, the cases involving reproductive freedoms and gay rights revived substantive due process in the latter half of the previous century. In his dissenting opinion in Obergefell v. Hodges, 576 U.S. 644 (2015), Chief Justice Roberts quoted from Justice Holmes’ dissent in Lochner and accused the majority of returning to this discredited line of analysis that roves far beyond the limits of the constitutional text. Obergefell, 576 U.S. at 687–8, 694, 703. Roberts concluded: “The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to . . . Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner.” Obergefell, 576 U.S. at 703.
I have argued that the triumph of positivism over natural law left Justice Kennedy without the vocabulary to justify his opinion in Obergefell persuasively because it can only be justified under a conception of natural law as a rhetorical form of argument. See Francis J. Mootz III, “Justice Kennedy and Natural Law Argumentation,” in The Rhetoric of Judging Well: The Conflicted Legacy of Justice Anthony M. Kennedy, eds. David A. Frank and Francis J. Mootz III (State College, PA: Penn State Press, 2023), 110–24. Given this deficit in our vocabulary of fundamental rights, the Chief Justice ultimately was vindicated with the Court’s decision to overturn Roe v. Wade as an instance of illegitimate constitutional decision-making. See Dobbs v. Jackson Women’s Health Center, 597 U.S. 215 (2022). Although ostensibly limited to the question of reproductive rights, Dobbs may signal an emerging period of hyper-linguisticality in which the Court rejects any interpretation beyond the bare literal meaning of constitutional provisions. Positivism on steroids is on the horizon, threatening to accelerate the neglect of living language in favor of sterile and technical wordplay.
2.
Antonin Scalia, “The Rule of Law as the Law of Rules,” University of Chicago Law Review
3.
See Francis J. Mootz III, “Getting Over the Originalist Fixation,” in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy, ed. Brian G. Slocum (Chicago, IL: University of Chicago Press, 2017), 156–90.
4.
This has been a consistent theme of my scholarship over the past 37 years. See, e.g., Francis J. Mootz III, “The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on Gadamer, Habermas and Ricoeur,” Boston University Law Review 68 (1988): 523; Francis J. Mootz III, Rhetorical Knowledge in Legal Practice and Critical Legal Theory (Tuscaloosa, AL: University of Alabama Press, 2006); Francis J. Mootz III, “Judging Well,” Washington University Jurisprudence Journal 11 (2018): 1.
5.
Gadamer’s under-appreciated philosophy of language captures this symbolic dimension. He writes that it is
clear that language is something other than a mere sign system denoting the totality of objects. A word is not just a sign. . . .
. . . Language and thinking about things are so bound together that it is an abstraction to conceive of the system of truths as a pregiven system of possibilities of being for which the signifying subject selects corresponding signs. A word is not a sign that one selects, nor is it a sign that one makes or gives to another; it is not an existent thing that one picks up and gives an ideality of meaning in order to make another being visible through it. This is mistaken on both counts. Rather, the ideality of the meaning lies in the word itself. It is meaningful already. But this does not imply, on the other hand, that the word precedes all experience and simply advenes to an experience in an external way, by subjecting itself to it. Experience is not wordless to begin with, subsequently becoming an object of reflection by being named, by being subsumed under the universality of the word. Rather, experience of itself seeks and finds words that express it. We seek the right word—that is, the word that really belongs to the thing—so that in it the thing comes into language.
Hans-Georg Gadamer, Truth and Method 416-17, 2nd rev. ed., rev. trans. Joel Weinsheimer and Donald Marshall (New York, NY: Crossroad Publishing, 1989) (5th German edition, 1986). This hermeneutical account of language captures the sense of symbolic resonance that I will use in this article.
6.
Steven D. Smith, Law’s Quandary (Cambridge: Harvard University Press, 2004) (describing the ontological gap of contemporary legal theory).
7.
Plato has Socrates make this point in his conversation with Theatetus:
Theatetus: What do you call thinking?
Socrates: Speech that the soul itself carries on with itself about the matters it is considering. I am demonstrating my ignorance here, yet it seems to me that when the soul is engaging in thought, it is really engaging in discourse, asking questions to itself and answering them, and making assertions or denials.
8.
Gadamer, Truth and Method, 438–91. It is in language, Gadamer observes, that “the order and structure of our experience itself is originally formed and constantly changed.” Ibid., 457.
9.
Gadamer, Truth and Method, 443. As Jens Zimmerman explains, “Gadamer’s point is . . . to counter the subjectivism of a self-enclosed mind. Human reason connects neither to the world, to other minds, nor to some imagined ultimate ground of meaning directly but only through the mediation of language. . . . Language is therefore the common ground for our articulated understanding of a shared world.” Jens Zimmerman, “Gadamer’s Century: Life, Times and Works,” in The Gadamerian Mind, eds. Theodore George and Gert Jan van der Heiden (New York, NY: Routledge, 2022), 19.
10.
Gadamer, Truth and Method, 463 (“it is literally more correct to say that language speaks us, rather than that we speak it . . . Thus here it really is true to say that this event is not our action upon [language], but the act of [language] itself”).
11.
Gadamer, Truth and Method, 465.
12.
Ibid., 472.
13.
Ibid., 487.
14.
Ibid., 490.
15.
Gadamer is wrongly accused of ignoring our corporeality and reducing all of existence to language, when his point is to insist upon the linguisticality of understanding. We can understand our bodily existence only because we can bring it to language. Jens Zimmerman contends that charges of linguistic monism lodged against Gadamer’s hermeneutics miss “Gadamer’s fundamental point that human language expresses the nature of human reasoning. . . . In contrast to animals, he argues, human consciousness enjoys a freedom from biological and environmental conditioning” that is a distanced outlook realized only through language. Zimmerman, “Gadamer’s Century,” 19–20.
16.
Hans-Georg Gadamer, “Myth in the Age of Science,” in Hermeneutics, Religion, and Ethics, trans. Joel Weinsheimer (New Haven, CT: Yale University Press, 1999), 91–102.
17.
Hans-Georg Gadamer, “Death as a Question,” in Hermeneutics Between History and Philosophy, eds. And trans. Pol Vandervelde and Arun Iyer (London: Bloomsbury Academic, 2019), 59–70.
18.
Gadamer notes that “it belongs to the experience of thinking death that this experience constantly lags behind itself, that it grasps, as it were, a trace of death only in thinking death away and remaining in the certainty of one’s own life. . . . the freedom of thinking is the true ground for the fact that death has a necessary unintelligibility. . . . Thus, the fact that we are thinking beings seems to be the ground for the unintelligibility of death and, at the same time, seems to include the knowledge of this unintelligibility.” Gadamer, “Death as a Question,” 69.
19.
Gadamer, “Death as a Question,” 65.
20.
Alphonso Lingis, “The Elemental that Faces,” in The Community of Those Who Have Nothing in Common (Bloomington, IN: Indiana University Press, 1994), 107–34. Shifting from Gadamer’s attention to what it means to think about our own death, Lingis looks to how we comfort another facing death.
What can one say? Anything one tries to say sounds vacuous and absurd in one’s mouth . . . [because] language itself does not have the [necessary] powers. . . . What is imperative is that you be there and speak; what you say, in the end, hardly matters. . . . [In this limit-situation you] have to say something–something that language cannot say, something that is not in the resource of common discourse to be able to say. . . . This situation is not only the end of language—the last moment when all we have to say to one another ends in the silence and death of the one to whom it has to been said and in the speechlessness and sobs of the one who has come to say something. It is also the beginning, the beginning of communication.
Lingis, “The Elemental that Faces,” 108, 113.
21.
Paul Ricoeur, “The Hermeneutics of Symbols and Philosophical Reflection,” in The Conflict of Interpretations: Essays in Hermeneutics, ed. Don Ide, trans. Denis Savage (Evanston, IL: Northwestern University Press, 1974), 288.
22.
Paul Ricoeur, “Hermeneutics and Symbolism,” in Hermeneutics: Writings and Lectures, trans. David Pellauer, Vol. 2 (Cambridge: Polity Press, 2014), 6.
23.
Paul Ricoeur, “Hermeneutics and the Idea of Revelation,” in Hermeneutics: Writings and Lectures, trans. David Pellauer, Vol. 2 (Cambridge: Polity Press, 2014), 147.
24.
Paul Ricoeur, “Original Sin: A Study in Meaning,” in The Conflict of Interpretations: Essays in Hermeneutics, ed. Don Ide, trans. Peter McCormick (Evanston, IL: Northwestern University Press, 1974), 282.
25.
The task of the philosopher guided by symbols would be to break out of the enchanted
enclosure of consciousness for oneself, to end the prerogative of self-reflection. The symbol gives reason to think that the Cogito is within being, and not vice-versa. . . . A philosophy that starts from the fulness of language is a philosophy with presuppositions.
Paul Ricoeur, The Symbolism of Evil, trans. Emerson Buchanan (Boston, MA: Beacon Press, 1967), 356–7.
26.
Ricoeur, “The Hermeneutics of Symbols.”
Symbols mediate reality or meaning in political, cultural, social, and ethical contexts as well [as in the religious realm] . . . As living, dynamic products of the human imagination, symbols are “regnant with meaning,” effecting connections between the quotidian and the transcendent, between particular fact and universal truth, between the present moment and eternity. . .
Nevertheless, symbols are “a curious phenomenon.” They conceal, even as they reveal, and perplex, even as they illuminate. They do not communicate their truth in direct and unambiguous ways, but are frequently multivalent and hold contradictory meanings in tension. Therefore, symbols require a process of interpretation—a hermeneutical process—which must be able to account for their imaginative nature, as well as the intentionality of their creators and interpreters, and the historical context of their creation and interpretations.
Gloria L. Schaab SSJ, “Sacred Symbol as Theological Text,” Heythrop Journal 50, no. 1 (2009): 58–73.
27.
Ricoeur, “Hermeneutics of Symbols,” 291. The double gesture is the cornerstone of Freud’s psychoanalytic theory and practice. The essence of a symbol is to both reveal and hide meaning, creating an arena within which psychoanalytic dialogue seeks new understanding. Paul Ricoeur, Freud & Philosophy: An Essay on Interpretation, trans. Denis Savage (New Haven, CT: Yale University Press, 1976), 7. Psychoanalytic critique, therefore, is “animated by this double motivation: willingness to suspect, willingness to listen; vow of rigor, vow of obedience. In our time we have not finished doing away with idols, and we have barely begun to listen to symbols. It may be that this situation, in its apparent distress, is instructive: it may be that extreme iconoclasm belongs to the restoration of meaning.” Ricoeur, Freud & Philosophy, 27.
28.
Ricoeur, “Hermeneutics of Symbols,” 299.
29.
David Pellauer, Ricoeur: A Guide for the Perplexed (London: Continuum Press, 2007), 54. Carl Jung’s psychoanalytic theory is premised on the power of attending to the symbolic that has been swept aside in everyday practices, but erupts in our dreams as a provocation for deeper understanding.
Man . . . produces symbols unconsciously and spontaneously in the form of dreams. . . . Modern man does not understand how much his “rationalism” (which has destroyed his capacity to respond to numinous symbols and ideas) has put him at the mercy of the psychic underworld. He has freed himself form “superstition” (or so he believes), but in the process he has lost his spiritual values to a positively dangerous degree. . . . Whatever the unconscious may be, it is a natural phenomenon producing symbols that prove to be meaningful.
Carl G. Jung, Man and His Symbols (New York, NY: Dell Publishing, 1964), 4, 84, 93.
30.
Ricoeur, The Symbolism of Evil.
31.
Ricoeur, “Hermeneutics of Symbols,” 287–8.
32.
David Pellauer emphasizes that the ambiguity inherent in symbols “is not necessarily something to be judged negatively. The ambiguity of symbolism is not a lack of univocity but is rather the possibility of carrying and engendering opposed interpretations, each of which is self-consistent. Symbols therefore can meaningfully be said both to conceal and to reveal something.” Pellauer, Guide for the Perplexed, 54.
33.
Charles W. Hendel, Introduction, in The Philosophy of Symbolic Forms, Volume One: Language, ed. Ernst Cassire, trans. Ralph Manheim (New Haven, CT: Yale University Press, 1955), 57.
34.
Ernst Cassirer, Symbol, Myth, and Culture: Essays and Lectures, ed. Donald Philip Verene (New Haven, CT: Yale University Press, 1979), 77 (“. . . we must cease to regard grammar as the arid thing we were taught in our school days. We must not consider it as a dry and abstract study of arbitrary and conventional rules, but as a study of living forms of thought and expression”).
35.
Cassirer, Symbol, Myth, and Culture, 195.
36.
Mary Douglas, Natural Symbols: Explorations in Cosmology, 3rd ed. (London: Routledge Press, 1996) (exploring the role of symbols in the challenges posed by the student movements in the 1960s). The inability to get behind symbols and to overthrow them obviously exerts a conservative force which may be viewed as problematic by those who are marginalized and disempowered by social structures. See, e.g., Silvia Niccolai, “What Is Happening to the Norm? Gender as a Paradigm of a Deformalised Neo-legal Positivism,” in New Rhetorics for Contemporary Discourse, ed. Angela Condello (Edinburgh: Edinburgh University Press, 2020), 101–18 (responding to Judith Butler’s concern that the symbolic realm is relatively impervious to feminist theorizing by emphasizing the creative potential for language as a communal activity drawing from polyvalent symbols).
37.
Suzanne K. Langer, Philosophy in a New Key: A Study in the Symbolism of Reason, Rite, and Art, 3rd ed. (Cambridge: Harvard University Press, 1957).
38.
Langer, New Key, 28. She continues: “Symbolization is the essential act of mind; and mind takes in more than what is commonly called thought.” Langer, New Key, 41.
39.
The material furnished by the senses is constantly wrought into symbols, which are our elementary ideas. Some of these ideas can be combined and manipulated in the manner we call “reasoning.” Others do not lend themselves to this use, but are naturally telescoped into dreams, or vapor off in conscious fantasy; and a vast number of them build the most typical and fundamental edifice of the human mind—religion. Symbolization is pre-rationative, but not pre-rational. It is the starting point of all intellection in the human sense, and is more general than thinking, fancying, or taking action.
Langer, New Key, 42. See also Langer, New Key, 144.
40.
Yet all these familiar signs and abbreviated symbols have to be supported by a vast intellectual structure in order to function so smoothly that we are almost unaware of them; and this structure is composed of their full articulate forms and all their implicit relationship, which may be exhumed from the stock of our buried knowledge at any time. Because they do fit so neatly into the frame of our ultimate world-picture, we can think with them and do not have to think about them; but our full apprehension of them is really only suppressed. They wear a “cap of invisibility” when, like good servants, they perform their tasks for our convenience without being evident in themselves. Yet all our signs and symbols were gathered from sensuous and emotional experience and bear the marks of their origin—perhaps a remote historical origin.
Langer, New Key, 283–4.
41.
Paul Ricoeur, “The Just Between the Legal and the Good,” in Reading Ricoeur Through Law, eds. Marc De Leeuw, George H. Taylor, and Eileen Brennan, trans. Eileen Brennan (London: Lexington Books, 2021), p. 35.
42.
Ricoeur, “Between the Legal and the Good,” 35.
43.
Antoine Garapon, “Symbolism and the Generativity of Justice,” in Reading Ricoeur Through Law, eds. Marc De Leeuw, George H. Taylor, and Eileen Brennan, trans. Eileen Brennan (London: Lexington Books, 2021), 91.
44.
Garapon, “Symbolism,” 92.
45.
Ibid.
46.
Myths and symbols do not have a directly readable form. As a matter of fact, they have a latent existence; they lie concealed in images, are present in representations, and are implied by texts rather than being made explicit . . . Symbols and myths thus constitute a particular type of knowledge of the world that we use without knowing what the codes are and that we have but without realizing that we have it, albeit intuitively.
Garapon, “Symbolism,” 92.
47.
Thurman Arnold, The Symbols of Government (New York, NY: Harcourt, Brace and World, 1935) (Harbinger Edition, 1962).
48.
The realist raises the question, “Why not disregard all these symbols and consider the actual problem.” A moment’s reflection shows the impossibility of this. . . No realist or skeptic ever quite escapes the influences of the symbols of his time, because most of his own conduct and the conditions under which he maintains his own prestige are based on those symbols. . . As we have shown, the law consists of a large number of mutually contradictory symbols and ideals. . . We are not here attempting to give an accurate account of the progress of the New Deal, but simply to illustrate the pattern of thought which always occurs when practical and organized institutions fail to control practical situations, and we attempt to find our way out of the wilderness by the guiding light of great principles [embedded in symbols].
Arnold, Symbols of Government, 15, 42–3, 49, 119.
49.
Some reviewers predicted that Arnold would be misunderstood as promoting a “sardonic, disillusioned, and cynical” thesis, Ordway Tead, “Review,” 1:5 American Sociological Review 1, no. 5 (1937): 493–4, by one who bemoans the mystical hold of “wishful thinking” about symbols, Harold Laski, “Review,” 45:5 Yale Law Journal
50.
51.
Mark Fenster, “The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory,” Buffalo Law Review 51 (2003): 1053, 1055.
52.
Ibid., 1106.
53.
Ibid., 1070–1.
54.
Writing at the same time as Arnold, Max Lerner argued that the Supreme Court and Constitution were our constitutive symbols. “Every tribe needs its totem and its fetish, and the Constitution is ours.” Max Lerner, “Constitution and Court as Symbols,” Yale Law Journal 46 (1937): 1290, 1294. Lerner describes how general appeals to the Constitution motivated its transformation by the Supreme Court acquiescence to the development of the New Deal administrative state.
Men are not moved to question their most deeply rooted and most skillfully publicized symbols except, under enormous pressure and great need. Only then does the erosive power of their reason begin to function, and their myth-making processes turn to the future instead of the past. In the great need of economic crisis, the measures which were taken to relieve and temper that crisis met and were blocked by the judicial power. It was then that the symbol of divine right began to crumble.
. . . .
The capitalists, as a dominant but minority group operating under democratic procedures, have used the Supreme Court so long and so blindly for their own purposes that they have finally succeeded in undermining its strength and prestige . . . . The capitalists find themselves thus faced with the prospect of losing their principal protection against the tyranny of the majority. And this they can ill afford to do.
Lerner, “Constitution and Courts,” 1315–7.
55.
Michael Robertson, “Telling the Law’s Two Stories,” Canadian Journal of law and Jurisprudence 20 (2007): 429, 433–4.
56.
Fenster, “The Symbols of Governance,” 1078.
57.
Ibid., 1087.
58.
Notable examples include C.G. Schoenfeld, “On the Relationship Between Law and Unconscious Symbolism,” Louisiana Law Review 26, no. 1 (1965): 56–77 (citing work by Arnold and Lerner to argue that the Constitution operates as “an unconscious parent-symbol” in the United States), 62–3; Christopher E. Smith, “Law and Symbolism,” Detroit College of Law Review 1997 (1997): 935, 939, 953 (concluding that social stability requires “the legal community [to] confront symbolism both by acknowledging and monitoring the role of discretion and politics in law and by actively addressing the gaps between symbolic statements of law and social reality,’’ such as the gap opened when Brown v. Bd. of Ed. failed to produce immediate, effective change in society); Sheldon H. Nahmod, “The Pledge as Sacred Political Ritual,” William & Mary Bill of Rights Journal 13 (2005); 797 (arguing that the pledge resonates because it draws on the symbolism of the flag); and Michael Robertson, “Telling the Law’s Two Stories,” Canadian Journal of Law & Jurisprudence 20, no. 2 (2007): 429–52 (The symbols of legal meaning render law “malleable, changeable, inconsistent, and rhetorical”), 429.
59.
Harold J. Berman, Law and Language: Effective Symbols of Community, ed. John Witte, Jr. (Cambridge: Cambridge University Press, 2013).
60.
Ibid., 47.
61.
Ibid., 65.
62.
Ibid., 93.
63.
Ibid., 143–5.
64.
Heidegger insists that, contrary
to the traditional orientation of the concept of rhetoric according to which it is some kind of “discipline,” Aristotle’s Rhetoric must be understood as the first systematic hermeneutic of the everydayness of being-with-one-another. . . . What has not been noted is the fact that the fundamental ontological interpretation of the affects has hardly been able to take one step worthy of mention since Aristotle.
Martin Heidegger, Being and Time, 7th German ed., trans. Joan Stambaugh (Albany, NY: State University of New York Press, 1996), 130.
65.
Allen Scult, “Aristotle’s Rhetoric as Ontology: A Heideggerian Reading,” Philosophy & Rhetoric 32, no. 2 (1999): 146–59.
66.
Texas v. Johnson, 491 U.S. 421 (Rehnquist, C.J., dissenting), 429.
67.
West Virginia Bd. of Ed., 319 U.S. 624 (1943).
68.
Ibid., 319 U.S. at 632.
69.
American Legion v. American Humanist Association, 588 U.S. 29 (2019). The Court reasoned:
But there are many contexts in which the [Christian] symbol [of the cross] has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.
. . . .
[The] Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.
American Legion, 588 U.S. at 39, 64.
70.
Virginia v. Black, 538 U.S. 343, 388 (2003) (Thomas, J., dissenting). Thomas used the doctrinal distinction between conduct and expression to articulate the visceral effect of the odious symbol of terror used by the Ku Klux Klan.
71.
Francis J. Mootz III, “The Unbearable In-Betweeness of Law,” in Reading Ricoeur Through Law, eds. Marc de Leeuw, George H. Taylor, and Eileen Brennan (London: Lexington Books, 2021), 139–56.
72.
Mootz, Rhetorical Knowledge.
73.
Robert L. Scott, “On Viewing Rhetoric as Epistemic: Ten Years Later,” Central States Speech Journal 27 (1977): 258, 261.
74.
Leslie Paul Thiele, The Heart of Judgment: Practical Wisdom, Neuroscience, and Narrative (Cambridge: Cambridge University Press, 2006), 5.
75.
See Brian L. Porto, “Robert H. Jackson: Country Lawyer with a Golden Pen,” in Rhetoric, Persuasion, and Modern Legal Writing: The Pen is Mightier (London: Lexington Books, 2020), 69–92.
76.
On November 21, 1945, in the Palace of Justice at Nuremberg, Germany, Justice Robert H. Jackson, Chief of Counsel for the United States, made his opening statement to the International Military Tribunal, 
. Only 2 years earlier, Justice Jackson had written the majority opinion in West Virginia Board of Education, see West Virginia, 319 U.S. 624, in which the Court embraced a more standard and superficial account of the symbolism of a compelled pledge of allegiance to the flag. The challenges of the Nuremberg trials precluded such a limited and functional self-understanding.
77.
Alphonso Lingis, “The Murmur of the World,” in The Community of Those Who Have Nothing in Common (Bloomington, IN: Indiana University Press, 1994), 104–5. Susan Langer similarly rejects the assumption that language is the only means of articulating thought, and that unexpressed feelings have no role: “At best, human thought is but a tiny, grammar-bound island, in the midst of a sea of feeling expressed by ‘oh-oh’ and sheer babble.” Langer, New Key, 87.
78.
The conclusion to Arthur Leff’s brilliant essay is often quoted, and it is no less relevant in this instance. See Arthur Allen Leff, “Unspeakable Ethics, Unnatural Law,” Duke Law Journal 1979 (1979): 1229, 1249.