Law As Rhetoric

Rhetoric is an important part of western humanism tradition, and classical and contemporary rhetoric is the main source of argumentation theory. Rhetoric is consistent with the science of law, and the paper tries to demonstrate the position of rhetoric in the science of law and law itself, defending the thesis“law is a practice of rhetoric argumentation”. Rhetoric diffuses into the various branches of the science of law, and the paper from the perspective of judicial reasonableness points out the question of judicial reasonableness is the shortened version of the tension between facility and normality of law in judgment process. There are different ways of solving the question of judicial legitimacy, but the legal argumentation theory is the most persuasive one. There are three approaches in legal argumentation theory, that is, to analyze, normalize and describe, and the paper applies the normalize-describing approach, investigating the realizing way and legal methodology to the question of judicial reasonableness based on the notion of law as rhetoric. The paper consists of seven parts.Preface tells the reason of writing this paper, explaining its significance and boundary.Chapter 1 deepens the core of the paper, pointing out the awareness of the question of judicial reasonableness, analyzing the shortcomings of former theories, illuminating the significance of argumentation and discourse theory, finally showing the rhetoric origin of argumentation and discourse theory.Chapter 2 clarifies the rise and fall of rhetoric humanism tradition in the west, pointing out the specific nature of practical reason in rhetoric, digging out the relationship between the science of law and its practice in rhetoric evolution.Chapter 3 is the core part of the paper, mainly arguing the thesis that law is the practice of rhetoric argumentation, telling the entailment of the notion of law as rhetoric.Chapter 4 based on the notion of law as rhetoric analyzes the approach to solving the question of judicial reasonableness.Chapter 5 puts forward the methodology of legal rhetoric by the method of argumentation and reconstruction in classical and contemporary rhetoric.Conclusion part illustrates the internal relevance between law and rhetoric, pointing out the potential significance of the notion of law as rhetoric in humanism, democratic politics and social practice of law.