Copyright Jack M.
Balkin 1995-1999. All Rights Reserved
A Night in the Topics:
The Reason of Legal Rhetoric and the Rhetoric of Legal Reason
Using Topics in Legal Analysis
For example, in tort law, a standard defendant's argument is "No liability without fault." A standard plaintiff's rejoinder is "As between two innocents, let the person who caused the damage pay."(17) In this case, the defendant talks about fault, while the plaintiff emphasizes causal responsibility. However, the plaintiff can also argue that the defendant was at fault, ("One who is at fault should be liable"), and the defendant can also deny causal responsibility ("No liability without causation"). Thus, there are actually fault based and causation based arguments for both sides. Whenever plaintiff and defendant join issue about an issue of tort law that might lead to an increase or decrease in defendant's potential responsibility towards the plaintiff, these stereotypical arguments usually come into play.
Consider, as an example, the famous case of Vosburg v. Putney,(18) in which the defendant, a young schoolboy, playfully kicked his classmate in the leg. Because of a preexisting condition the plaintiff unexpectedly developed a serious disease in the leg that eventually resulted in his becoming permanently disabled. The issue before the court was whether the defendant had to pay all of the damages caused by the kick no matter how unforeseeable, or only those reasonably foreseeable from the defendant's perspective. This is a classic situation in which the rule of law chosen affects the defendant's potential responsibility towards the plaintiff, hence the standard tort law arguments apply.
The defendant might make the following arguments (among many others):
(1) The defendant gave the plaintiff a harmless kick on the leg. He did nothing wrong, or if he did some wrong, it was completely out of proportion to the damages that resulted. It is unjust to impose enormous and burdensome damages on the defendant because of an unforeseeable freak accident. (No liability without fault).
(2) Moreover, the real cause of the unfortunate accident was the plaintiff's preexisting condition. (No liability without causation).
The plaintiff can respond in kind:
(1) The defendant kicked the plaintiff without his consent and therefore acted wrongfully. (One who is at fault should be liable).
(2) Moreover, even if the defendant was without moral fault, the plaintiff is also entirely innocent. The plaintiff is no less injured because the defendant meant no harm. Someone must bear the loss from this accident, and it is better that it fall on the person who occasioned it. (As between two innocents, let the person who caused the damage pay).
In this example I have arranged the plaintiff's and defendant's arguments so that they directly respond to each other. The plaintiff argues fault, the defendant denies fault. The defendant denies causal responsibility, the plaintiff asserts it. In real life, of course, the plaintiff might respond by changing the subject. When the defendant pleads lack of fault, the plaintiff might assert the defendant's casual responsibility, or the plaintiff's rights, or the bad consequences that would flow from the defendant's proposed rule, and so on, because the defendant's fault based argument might be more plausible than any fault based argument the plaintiff can think of. Thus, each type of argument is formally available to both sides, but not all formally available arguments within the rhetorical system are equally strong or equally plausible.
With sufficient time and patience, one can go through the whole of tort law and catalog the various kinds of policy arguments that lawyers and legal academics make, showing the typical pro and con responses made by plaintiff's and defendant's counsel. I have done this for a number of fields of law (tort, contract, criminal law) in my previous work.(19) This collection of recurring argument forms has considerable practical significance for lawyers as well as students of the law. If a student knows the basic forms of policy argument, she can apply them to virtually any tort law issue that comes before her. Moreover, if she is asked to defend or justify a particular rule of law, she has at her fingertips a list of available arguments of justification that can be invoked at a moment's notice. Finally, because she can generate her opponent's likely arguments as well as her own, she can more easily generate counterarguments and fine tune her original claims for maximum force and plausibility. After having taught the law of torts in this fashion for over a decade, I can report that all of these benefits do accrue to law students when they learn to master the recurring forms of legal justification.
The point I wish to emphasize here, however, should by now be obvious from the description of legal semiotics just offered. The recurring forms of argument that are the subject of legal semiotics are topics in the classical sense. The plaintiff's argument that one who is at fault should pay, and the defendant's rejoinder that there should be no liability without fault are two opposed versions of the same basic topic, which is fault. Similarly, casual responsibility, harm, action (versus inaction) and intention are all topics relevant to tort law issues. Each topic gives both the plaintiff and the defendant something to talk about, a starting point for analysis of the situation. Each is a source for the invention of new arguments. Each can give rise to subtopics--for example, the idea of foreseeability is an articulation of the concept of fault. Finally, each can be combined with other topics to produce increasingly complicated and sophisticated forms of argument.
Legal semiotics has generally been concerned with one of the central tasks of legal analysis and argument-- the justification and application of legal doctrines. But my point is more general; what is true of the work of justification is also true of other tasks of legal analysis. We can find topics and topical reasoning employed in other kinds of legal reasoning and legal problem solving.
Take, for example, the interpretation of statutes. It is not accidental that Duncan Kennedy's original formulation of legal semiotics was inspired by Karl Llewellyn's famous article on statutory construction.(20) Llewellyn listed many of the familiar canons of statutory construction and showed how they could be lined up in pro and con fashion. For each canon of interpretation, Llewellyn argued, there was a contrasting canon that argued in the opposite direction. Llewellyn's argument has often been viewed as showing the indeterminacy and hence uselessness of reasoning by canons. But a better interpretation of what Llewellyn demonstrated can be stated in terms of topics.
Canons of statutory interpretation are topics for discussion of the meaning of statutes and their reconciliation with other statutes (including the Constitution). Canons of interpretation are starting points, like a troubleshooter's checklist, that give the interpreter a way in to the discussion of statutory and constitutional problems.(21) Like the topic of fault in tort law, they are necessarily general and they cannot determine the scope of their own extension. Nor can they be dispositive in every case, even though they may be persuasive in any particular case. Indeed, the problems for canons of interpretation arise precisely when too much is demanded of them. It is at that point that they reduce into a sterile formalism that inhibits imagination rather than stimulates it. If we begin to think of canons of interpretation as heuristics rather than formulas, as methods of getting started in the discussion of problems rather than solutions in themselves, we will better understand both their usefulness for generations of lawyers and their inherent limitations.
Precedental argument also makes use of topics, but in a slightly different way. To begin with, there are familiar techniques of doctrinal manipulation, which Llewellyn also cataloged in his The Common Law Tradition.(22) With a little practice, one can learn the relatively standard ways in which lawyers distinguish and connect cases, broaden and narrow precedents, distinguish and construct lines of authority. These techniques become second nature to lawyers, and Llewellyn merely took it upon himself to categorize and classify the techniques he found in the common law. Thus, the common law tradition Llewellyn spoke of is not simply a tradition of precedents; it is a tradition of intellectual tools and approaches that can be brought to bear on legal problems even as they help to construct the very nature of these problems. Lawyers sometimes call these techniques "craft." Whatever term we use to describe it, this craft consists in significant part in the use and mastery of topics whose very existence helps constitute our shared legal culture.
The various techniques of precedental manipulation can form a topic catalog of their own. Yet topics are already built into the structure of precedents. Doctrinal categories and distinctions are topics woven into the fabric of the law.
As I noted previously, topics are places; they are places where one can place things. They are intellectual pigeonholes for the organization of experience. Legal doctrines and distinctions are also pigeonholes of this kind. Legal doctrines constitute laws, but for this reason they simultaneously become a template for the organization of legal experience and a framework for the discussion of legal problems. Thus, legal doctrine has a dual nature, both as authority and as topos. Because legal doctrines and distinctions are backed up by the authority of the state, they help constitute what a legal problem is in a given legal culture.
The structure of the law school exam provides an excellent example of the topical nature of legal doctrines. Most law school exams are organized around the skill of issue spotting. The student is presented with an elaborate factual situation; she is then asked to discuss the probable legal consequences of the hypothetical and the best legal arguments on both sides. The exam is, of course, a quintessential exercise in problem solving. It requires the student to recognize a factual situation as a legal problem and argue for the best application of legal categories. Yet the student cannot do this unless she understands the basic doctrinal pigeonholes relevant to the problem. She must have ready to hand a set of distinctions and a framework of doctrines that allow her to characterize the problem and set in motion her discussion of the legal consequences.
The student's legal analysis has three interrelated components. First, it involves pattern and problem recognition. Second, it demands arguments about the best match between different possible patterns and the facts at hand. Third, it requires a reinterpretation and redescription of the facts in light of the available doctrinal pigeonholes. The fact that the materials of the law the student works with are also legal materials-- that is, authoritative materials backed up by the authority of the state-- does not change the fundamentally problem solving nature of her task. To the contrary: It is precisely the authoritative nature of the materials that determines the kind of problem that is being set before her.
In sum, the topical structure of law is built into its nature as law. Every doctrinal category or distinction can function as a special topic for the formulation and discussion of legal problems. What looks like the development of doctrine from one perspective can be seen as the use of topics from another. We can redescribe the techniques of precedental manipulation, reconciliation, subordination, distinction and exclusion in this light. Precedental argument involves the use of preexisting topics or the creation of new ones. For example, a new topic is created when a salient factual difference is made the basis for a doctrinal distinction that will control the application of the law in succeeding cases. More generally, whenever law creates a new distinction, or creates a new category, it also creates a new topic for the analysis and resolution of legal problems.
I am not arguing that the legal categories we find in statutes and legal decisions are nothing more than rhetorical topics. I am merely pointing out that they can and do function as topics. Conversely, I am not arguing that doctrinal categories and distinctions are the only topics involved in legal analysis and reasoning. Many scholars argue that principles and policies underlying legal doctrines should be considered part of legal analysis and reasoning even if they are not explicitly codified in doctrinal materials. These principles and policies are the particular concern of legal semiotics. As our previous discussion of legal semiotics shows, these principles and policies are organized into recurring forms of argument that also function as topics. So the claim that legal reasoning has a topical structure is entirely consistent with an expansive view about the materials of the law that includes not only statutes and legal decisions but also principles and policies.(23)
Studying Legal Culture through the Topics
First, thinking about law in terms of topics has practical value both for lawyers and law students. Obviously learning doctrine involves learning the topics contained within it. However, it is equally useful to understand and recognize the recurring forms of policy argument. Knowing the standard forms of legal justification helps the advocate to discover new arguments and to frame existing ones more persuasively, particularly because she can figure out what arguments her opponent is likely to make. Moreover, knowing the common topics of justification not only helps the advocate to justify existing legal doctrines and persuasively argue for their proper extension and application, but also enables her to criticize legal doctrines. Recognizing that legal doctrines have recurring forms of justification helps lawyers to discover hitherto unacknowledged tensions between the justifications for existing doctrines in the same area of law or in different areas. Practicing this skill can sharpen lawyers' critical faculties, stimulate legal creativity, and advance the critical refinement of legal doctrines.
Because of its practical advantages, the systematic study of the topics of legal justification is an excellent way to approach the study of law and can easily form part of the first year curriculum. I have taught my first year torts classes in precisely this way. I require students both to master doctrine and to recognize and practice recurring policy arguments in order to discuss and debate problems in the law of accidents. The study of the law through topics was an important part of legal education in antiquity, and perhaps it could be so again.
Second, the study of legal topics is the study of legal culture. Recall that one of the meanings of the word topoi was "common places." The study of topics is the study of the commonplaces that bind together a practice of reasoned argument. It is the study of a shared social practice of argumentation and thus the study of a shared form of social life. Legal topics are shared tools of understanding that characterize legal practice. Some legal topics are shared because they involve categories and distinctions woven into the fabric of positive law which has binding force on a community. Other topics-- for example, those that concern underlying legal justifications-- are shared by the members of a community whether or not they are explicitly written into positive law. The recurring topics of policy justification-- like fault, causal responsibility and efficiency-- show the fundamental acceptance within the legal community (and the larger community outside it) of certain basic ideas through which disputes will be framed and debated.
As common tools of legal understanding, topics offer us a glimpse into the background assumptions we share in understanding and dealing with legal problems. We can study changes in legal culture by noting the entry of new topics into legal discourse. We can tell that our background culture is changing when the topics we use to formulate and discuss legal problems change. A good example is the rise of economic analysis in the legal academy. Many law professors now routinely employ concepts such as efficiency maximization, the Coase Theorem, transaction costs, and agency problems. These concepts, borrowed from economic science, become new topics for the framing, recognition, and discussion of legal problems. Other interdisciplinary movements, such as critical legal studies, feminism, and critical race theory, have also introduced new ways of thinking about law and with them new topics.(24) Moreover, these new frameworks for problem solving have led to the recognition of problems that were not previously recognized as such. Thus, we can think of each new jurisprudential movement as an attempt to inscribe new rhetorics and new topics into the language of law and legal justification.
It may seem surprising at first to think about law and economics as a body of topics. However, any systematic body of study -- including social science-- will necessarily develop its own set of special topics, and thus, produce its own substantive rhetorical categories. The fact that these concepts may act as rhetorical topics in no way undermines their usefulness. To the contrary, it is precisely because they are useful for framing and solving many different kinds of problems that they function as topics. Once again we must free ourselves from the pernicious confusion of rhetoric with mere style or deception. Rhetoric, in the form of topics, undergirds the substantive reason of the law.
If a legal culture is defined by its characteristic topics, then different legal cultures may be distinguished by differences in their common places for argument. For example, the self conscious adoption of sophisticated economic concepts has occurred much more slowly and in more limited or specialized areas in legal practice than in the world of the legal academy. The increasing divergence in the topics employed within legal practice and the legal academy is yet another a sign of the increasing divergence between these two subparts of legal culture.
Finally, in addition to practical and sociological reasons, we should study the topics for critical reasons. Focusing our attention on recurring topics in legal discourse helps us critically examine the ways we talk about and hence think about legal problems.
First, we can study the kinds of arguments that people with different interests or social positions tend to make, and the different ways they tend to characterize situations and evaluate them. For example, we can compare how causal responsibility is characterized in products liability cases as opposed to cases involving freedom of speech.(25) We can examine how members of different political and social groups tend to frame questions of benefit and burden, equal or differential treatment, fault, causal nexus, or personal responsibility. Much critical race theory and feminist legal theory has been implicitly concerned with these questions.(26)
Second, we can study how the tools of understanding we use to frame and discuss legal questions might limit the way we understand and evaluate the social world. As heuristics for analysis, topics both empower and limit our legal imaginations. Just as no tool is equally good for every purpose, no set of topics is equally useful for recognizing and addressing all problems. Confining ourselves to one set of topics may lead to an impoverished conception of the situation, which serves neither the interests of truth nor justice. When we are limited in the topics we employ, we not only limit our legal imaginations but our ability to recognize our own limitations. As the old saying goes, when all that you have is a hammer, everything starts to look like a nail.
To be critical about legal topics, we need to play various topical approaches off against each other-- for example playing off the language of efficiency and transaction cost reduction against the language of moral responsibility and desert. That is because we can often only see the limitations of topics by means of other topics we bring to bear. Moreover, a critical approach to our legal topics suggests the continual need to borrow new topics from other areas of social life outside of legal discourse. In fact, we do this all the time: we continually borrow topics from other areas of life and fashion them to the needs of legal problems. Moreover, when we import these topics, we also subtly change the nature of legal argument and legal analysis. Thus, the critical approach to the study of topics reminds us that the boundary between legal topics and other topics is always permeable, even if at any point in time there are some special topics that are distinctly legal.
Like any other form of ideological analysis, the critical study of topics is potentially self-referential. It involves recognizing limitations and problems in the legal discourse we are studying. Yet the discourse in which we study legal discourse can also be understood in terms of its own recurring topics, its own distinctive modes of problem recognition and solution. The ways we study, classify, and criticize existing topics may therefore have their own limitations. So when we study the rhetoric of the law critically, we do not abandon topics or escape rhetoric. We do not finally engage in some more authentic or pure form of discourse that cannot itself be studied and criticized rhetorically. Nevertheless, this recognition does not make the task of critical analysis or critical reflection impossible. It merely helps us to see the conditions under which it occurs. This brings me back to my central theme: the use of the rhetorical art of invention is not a hindrance to reason but part of its modus operandi.
Topics are key elements in any pragmatic-- i.e., action oriented-- approach to knowledge. I believe, in fact, that there are deep connections between a topical approach to legal reasoning and the recent revival of legal pragmatism, although I cannot discuss the matter fully here. What I do hope I have shown in these brief remarks is how rhetorical invention through topics is fully integrated into the substantive reason of the law. The familiar opposition between rhetoric and reason misunderstands their appropriate relation; for rhetoric does not take the reason of the law on holiday, but to its true home in the topics.
2. The notable exception, and the one that proves the rule, is the work of Stanley Fish, who came to the legal academy from the study of rhetoric and literary criticism. See, e.g., Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Legal and Literary Studies pp. 471-502 (Durham, N.C.: Duke University Press 1989).
3. The art of rhetoric was developed in part in response to the legal demands of these societies. In Ancient Greece, citizens were required to make speeches in the assembly and in the law courts; in Ancient Rome, an advocate or patron would often speak on behalf of a client. See George A. Kennedy, A New History of Classical Rhetoric (Princeton Univ. Press 1994), at p. 103. J.A. Crook puts the matter succinctly: "Ancient advocates employed and were masters of rhetoric: for some observers that is the most important and obvious fact about them. Rhetoric was then regarded as the theoretical foundation of forensic practice." J.A. Crook, Legal Advocacy in the Roman World (London: Duckworth Press 1995), at p. 3.
4. In saying this, one should understand that in Ancient Greece there was no organized legal profession to speak of, and hence no organized form of legal education. Citizens studied rhetoric in order better to defend their interests in the courts and in the assembly. In ancient Rome, one must distinguish between jurists who wrote about law and advocates who represented clients, usually in their capacity as patrons. Education in rhetoric (and hence legal advocacy) was much better characterized as part of general education, which was nevertheless useful for the patron in his advocacy in courts of law as well as in political life generally.
Even after classical times, law's organic connections to the art of rhetoric continued in medieval schools which were the forerunners of the university. Indeed, as Richard Schoeck points out, it was not until the twelfth century that law ceased to be regarded as a subdivision of rhetoric and became a university subject in its own right. See Richard J. Schoeck, "Lawyers and Rhetoric in Sixteenth Century England," in James Murphy, ed. Renaissance Eloquence: Studies in the Theory and Practice of Renaissance Rhetoric (Berkeley: Univ. of California Press 1983), at pp. 274-291. After the development of law schools, rhetoric continued to be an essential part of legal education both in England and on the Continent. And during the development of the early common law in England, the classical tradition of rhetoric was enormously important and heavily influenced the education of lawyers. Id. at 275.
6. A position attributed to him by Cicero. See Cicero, Topica vol. II, 6-8, in Cicero, trans. H.M. Hubbell, Loeb Classical Library Edition, 28 vols. (Cambridge: Harvard Univ. Press, 1976) 2:386-87 & note b.
7. Here we might compare the spatial metaphor of "topic" with the concept of a "horizon" as used in hermeneutic theory. Obviously, the nature and limits of one's horizon depend on the place where one stands.
9. Chaim Perelman and L. Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, John Wilkinson and Purcell Weaver, trans. (Notre Dame: Univ. of Notre Dame Press 1969); Theodor Viehweg, Topics and Law: A Contribution to Basic Research in Law, W. Cole Durham, trans. (Frankfurt am Main: Peter Lang 1993).
11. Topics and Law, pp. 69-85. On the influence of Viehweg and the Mainz school, see Katharina Sobota, System and Flexibility in Law, Argumentation 5:275-82 (1991), W. Cole Durham, Translator's Foreword to Topics and Law, pp. xix-xxii.
12. Durham, at pp. xix-xxv. As Durham points out, the early history of the common law was heavily influenced by the topical approach, particularly due to the influence of Aristotle and the felt need to draw legal principles from ancient sources and legal rules. See Stephen Siegel, The Aristotelian Basis of English Law, 56 N.Y.U. L. Rev. 18, 20-29 (1981). As a result ancient sources became topoi for the discussion of legal problems. The educational system reinforced rhetoric's centrality. Law students studied ancient rhetorical texts and practiced their skills in moots and stylized disputations. See Richard J. Schoeck, "Lawyers and Rhetoric in Sixteenth Century England," pp. 280-82.
15. I emphasize that these are not the only tasks of legal analysis, although they have been the primary focus of legal semiotics. In any case, the methods of legal semiotics can and have been extended to other areas, for example, statutory and constitutional interpretation, see, e.g., Philip Bobbitt, Constitutional Interpretation (Oxford: Basil Blackwell 1991), and factual characterization, see, e.g., Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1981); J.M. Balkin, The Rhetoric of Responsibility, 76 Va. L. Rev. 197 (1990).
16. J.M. Balkin, The Promise of Legal Semiotics, 69 Tex. L. Rev. 1831 (1991); Duncan Kennedy, A Semiotics of Legal Argument, 42 Syracuse L. Rev. 75 (1991); Jeremy Paul, The Politics of Legal Semiotics, 69 Tex. L. Rev. 1779 (1991); James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003 (1985).
17. J.M. Balkin, The Crystalline Structure of Legal Thought, 39 Rutgers L. Rev. 1 (1986), collects these and many of the other standard arguments and provides examples drawn from judicial opinions and academic literature.
21. For example, Philip Bobbitt's theory of constitutional argument lists six basic "modalities," into which, he claims, all constitutional arguments must fall. See Philip Bobbitt, Constitutional Interpretation, supra. Bobbitt's modalities-- history, text, structure, consequences, precedent, and national ethos-- are topics for the analysis of constitutional law issues. Indeed, Bobbitt argues that one of the advantages of his classification system is that "if citizens and journalists (and politicians) know the basic modes, the fundamental ways of thinking about the Constitution as law, they can work through current problems on their own." Id. at 28. Going through the list of constitutional modes, even mechanically, "ought to give one an idea of how to proceed to answer a constitutional question, rather than simply shrugging one's shoulders." Id. at 30. Bobbitt's rationales perfectly describe the point of a topical approach.
23. Finally, we should note that even the research tools of American lawyers have been structured in topical form. The West Publishing Company's digest and keynote system is self-consciously organized around topics, as are resources like American Law Reports and treatises like Corpus Juris Secundum. The gradual displacement of these tools by computer assisted research, I predict, will be unlikely to change the common law's fondness for conceiving, categorizing, and imagining law in terms of topics. Rather, we are likely to see the topical sensibility arise in ever new forms as new technology develops.
24. For example, a familiar topic introduced by critical legal studies is the interrelation between public and private; critical race theory and feminism have introduced topics such as unspoken norms of race and gender, analysis of law in terms of its reinforcement of caste, and the intersectionality of identity.
26. A good example is Patricia J. Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard Univ. Press 1991). Although Williams is perhaps best known for her emphasis on personal narrative, I have found her work invaluable for its detailed descriptions of the contrasting rhetorical frames that people use to describe and evaluate racially charged incidents.