Mootz, Francis. "The Irrelevance of Contemporary Academic Philosophy for Law: Recovering the Rhetorical Tradition."

From Mootz, Francis. On Philosophy in American Law. Cambridge: CUP, 2009 (forthcoming). By understanding how rhetoric produces knowledge within certain social and institutional settings we might foster the “good” rhetoric of the philosopher without having to endorse Plato’s misguided faith in the forms that can be seen in the sunlight of timeless knowledge. Rhetorical knowledge is a practical accomplishment that neither achieves apodictic certitude norcollapses into a relativistic irrationalism, which is enough to sustain legal practice as a reasonable– even if not thoroughly rationalized – activity. Using rhetorical knowledge as a polestar, philosophers and lawyers can avoid the practicetheory quandary by not severing the two at the outset. At the most practical level, the concept of rhetorical knowledge will guide investigations of how the legal system fosters reasonable resolutions of controversy, examining how understanding and persuasion work in myriad contexts from client interviews to appellate argumentation. At the most theoretical level, the concept of rhetorical knowledge will guide an investigation of the ontology of understanding and persuasion, not by identifying a fixed human nature but rather by illuminating the unfolding hermeneutical-rhetorical character of human understanding in which the investigation itself participates. The merging of the philosophical traditions of hermeneutics and rhetoric provides the basis for understanding the rhetorical character of knowledge that is achieved in legal practice. Rhetorical knowledge is an incredibly rich starting point for thinking about legal practice and legal theory, stretching back to the pre-Socratics and Roman jurisprudence, and carrying forward today in a variety of work being done in both philosophy and law. Mining this vein of thinking promises to bring together philosophers and lawyers who currently bump into each other in the darkness of the cave, hardly pausing to take real notice of each other. . . . Read the rest here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1112507.