Osborne, Tony. Review of Francis Mootz's RHETORICAL KNOWLEDGE IN LEGAL PRACTICE AND CRITICAL LEGAL THEORY. COMMUNICATION RESEARCH TRENDS June 2008.

Mootz, Francis J. Rhetorical Knowledge in Legal Practice and Critical Legal Theory. Tuscaloosa: U . of Alabama P, 2006. Mootz's Abstract: My central themes are that rhetorical knowledge - however imperfectly pursued and attained - is a feature of social life; that rhetorical knowledge plays an important role in legal practice; and that legal critique is appropriately grounded by the normative injunction to maximize the generation of and reliance on rhetorical knowledge in the administration of justice by legal actors. If nothing else, I want to make clear that by recovering and cultivating the classic insights of Gadamer, Perelman, and Nietzsche we can gain substantial perspective on our current situation. By definition, the theory of rhetorical knowledge does not call for a brilliant theoretical reconstruction of legal practice that generates prescriptions; instead, it seeks to draw out resources that can help us understand legal practice and engage critically in this practice. Rhetorical knowledge may only be enacted rhetorically. . . . Read the rest here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935949. Osborne's Review: In pre-Nazi Germany the philosopher Ernesto Grassi learned of the general disdain for Renaissance humanism and rhetoric from his principal colleague at the University of Freiburg, Martin Heidegger, who deemed the Italian tradition "insignificant." The Hegelian rationalism that dominated German universities excluded rhetoric as too messy. Rhetorical categories--the emotions, linguistic ambiguity, tropes, paradox, silence, mystery--resisted neat systemization. However, to judge these concerns "irrational," and thus irrelevant, Grassi argued, would bar rhetorical discourse from philosophical investigation. In Rhetorical Knowledge in Legal Practice, Francis J. Mootz III echos Grassi's argument in his case against legal formalism--a fixed, abstract conception of law that denies the essential rhetorical nature of legal practice. Unlike invariable mathematical theorems, questions of right and wrong are contextual, historical, not fixed. A theft in one context is a heroic deed in another. If the courts must "say what the law is," as Chief Justice Marshall famously declared, then it follows that this "saying" is a rhetorical activity, a matter of argumentation (p. 130-31). In effect, Mootz subscribes to the maxim that "rhetoric is a way of knowing." Mootz puts it thus, "rhetorical knowledge" is a constitutive feature of legal practice. He defines rhetorical knowledge as "the outcome of efforts to learn from and to persuade another person by engaging in argumentation" (p. 127). Rhetorical knowledge is intersubjective and self-reflexive, acquired through inquiry into "how we persuade others of our resulting understandings" (p. 188). Mootz believes American legal theory is adrift, cut loose, in part, by the postmodern suspicion of any theory rooted in reason. Mootz also rejects legal formalism (positivism), which decrees an argument must have a winner and a loser. Forsaking the extremes, Mootz opts to ground legal practice in "rhetorical knowledge." This bold move requires rehabilitating the tainted notion of rhetoric as "the glib manipulation and incapacitation of reason" (p. 12). Undergirding Mootz's project are the ideas of Hans Gadamer (Heidegger's most famous student) and Chaim Perelman (a Polish-Belgian rhetorical theorist best known for his typology of argumentation). Rhetorical Knowledge in Legal Practice is essentially an exegesis of their work. . . . Read the rest here: http://findarticles.com/p/articles/mi_7081/is_/ai_n28545109.