From a chapter of book on legal rhetoric I'm working on with Eileen Scallen: 1. CLS (Critical Legal Studies), Stanley Fish, and post-structuralist rhetoricians represent the hypertrophy of rhetoric. Their understanding of legal argument illustrates the position clearly: the language of the law is entirely unstable, and with a mastery of legal reasoning and rhetorical strategies one can literally make the weaker case appear to be the stronger. James Boyle's "Anatomy of a Torts Class" illustrates the point: http://www.law.duke.edu/boylesite/tortlaw.html There is no distinctive rationality--legal or otherwise--that might enable us to judge competing arguments. The law *is* politics; as Mark Tushnet said, one must interpret statutes and precedents in order to advance socialism. 2. The Neoclassical view (I include myself here, although there are stronger and weaker--more pragmatist--versions of the view): legal reasoning is a specific kind of human reason-giving activity. Rationality itself is grounded in the telos of the human animal. The basis of a naturalistic ethics lies in the conditions needed for human flourishing. Law has both its strengths and weaknesses as an aid to human flourishing. There are more or less rational arguments, although reasonable people will disagree, at the prudential level, about how to advance rationality. We cannot escape the necessity of judgment. There is no formalistic principle that could enable us to evade judgment. Rhetoric is an epistemic and performative tool for managing discourse under conditions of uncertainy (Zarefsky). --If anyone, in particular you post-structuralists on the list--Dan?--I want to know if point 1 is a "fair" representation of the CLS/post-structuralist view on rhetoric. I don't want to set up a straw man here.

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