Through the lenses of comparative and critical rhetoric, this book theorizes how alternative approaches to communication can transform legal meanings and legal outcomes, infusing them with more inclusive participation, equity and justice.
Viewing legal language through a radical lens, the book sets aside longstanding norms that derive from White and Euro-centric approaches in order to re-situate legal methods as products of new rhetorical models that come from diasporic and non-Western cultures.
The book urges readers to re-consider how they think about logic and rhetoric and to consider other ways of building knowledge that can heal the law’s current structures that often perpetuate and reinforce systems of privilege and power.
This chapter serves as a practicum for how Indigenous, African Diasporic, Asian Diasporic, and Latine rhetoric can be used to create legal discourse in opposition to that created by Western reasoning and analytic paradigms. Using examples from pleadings, memos, trial and appellate legal briefs, and judicial opinions in a variety of subject matter areas, it makes visible the operation of Western reasoning and analytic paradigms to illustrate the operation of inequalities. It then invites the reader to identify and practice using multicultural reasoning and analytic paradigms in a variety of ways.
There are numerous cases one could study to identify successful interruptions in the history of American jurisprudence. In fact, any groundbreaking case that has drastically changed a legal standard is ripe for study. This chapter examines two petitioner briefs filed in the Supreme Court of the United States: Gideon v. Wainwright and Loving v. Virginia. In analyzing these briefs, the reader will be invited to identify the various styles of interruptions described in Chapter 2. Reading the full decisions rendered in these cases would be helpful context for the lessons in this chapter, and they are available online.
This section outlines the book’s primary objective, which is to give students and practitioners new tools to make legal arguments, challenge existing precedent, and advocate for transformative social justice. It also introduces the book’s major foundational concepts including critical race theory, critical rhetoric, and comparative rhetoric. The section also delineates frameworks for practicing legal rhetoric in a way that challenges White supremacy, patriarchy, imperialism, economic exploitation, and other forms of injustice.
Legal rhetoric operates to inculcate White cultural hegemony into our reasoning and analytic processes for resolving legal problems—how we “do” law. It makes its racialized tools normative and renders them neutral through its failure to acknowledge their origins in Western epistemologies and ontologies that idolize and protect imperialism, capitalism, White supremacy, and patriarchy. The lens through which legal rhetoric views the landscape of legal conflict is focused on White racial and cultural experiences. These experiences become synonymous with White cultural hegemony. This singular focus renders historic and contemporaneous cultural experiences blurry and unformed when, in fact, Indigenous, Black, Latine, and Asian communities have forged formal rhetorical traditions imbued with their culture and experiences in the U.S. that are more than adequate to widen that lens. These rhetorical traditions can be contained under the banner of what critical rhetorician Aaron David Gresson III describes as “recovery rhetorics.”
This chapter will demonstrate how legal education, by focusing exclusively on traditional legal rhetoric as the only acceptable mode of reasoning, operates as a feedback loop that reinforces White privilege and patriarchal hierarchy. This chapter demonstrates that traditional rhetoric is insufficient to achieve long-term justice and equity because it is designed to replicate the toxic patriarchal and racialized inputs detailed in Chapter 1. For this reason, teachers and students alike must engage with alternatives to traditional legal rhetoric in order to fully dismantle the White monopoly on advantage.
This chapter invites readers to identify the specific ways traditional legal rhetoric does harm to the cause of social justice and equity. In this way, this chapter operates as a critical casebook, presenting several appellate opinions for readers to deeply read and digest. Rather than tell the reader how traditional legal rhetoric harms, the objective is for readers to see this for themselves. These are not especially well-known cases; they are relatively run-of-the-mill cases, representing a wide spectrum of doctrines, including immigration law, privacy law, entertainment law, obscenity law, qualified immunity / excessive force, and freedom of religion / First Amendment. Each case, however, negatively impacts justice and equity for a member of a minoritized or marginalized community. After each case, the reader will confront discussion questions that surface the social and historical context involved in the case, the role of the judge, and other ways that traditional rhetorical frameworks influenced the legal outcome in the case.
This chapter challenges the normative historical narrative of the West as it manifests in the U.S. to support White cultural hegemony. It introduces the foundations for the creation of Indigenous, African Diasporic, Asian Diasporic, and Latine rhetoric through an exploration of the multiple interlocking systems of oppression that led to each group’s marginalization. The chapter then illustrates how White cultural hegemony informs the nomos and guides legal reasoning and analytic processes to produce unjust results. It concludes with an example of how the lived experiences of minoritized people might move these processes toward inclusion and equity.
This chapter examines how traditional legal rhetoric rests on a classical rhetoric foundation that normalizes inequality in various forms. The chapter starts with Aristotle and looks at his contributions to rhetoric—an essence-based approach to categories, the syllogistic form, and conceptions of hierarchy and inequality. The chapter then traces how traditional legal rhetoric has inherited these classical rhetorical thought structures. Then, by analyzing a few key judicial opinions, the chapter shows how traditional legal reasoning silences outsiders, limits the story that can be told, and produces unjust outcomes.
