Style and Substance

What happens when we view legal judgements as literary documents?

Trying to get your head around what is going on in judicial opinions is no easy task. The legal world is professionally opaque and often deliberately so; it is as though there was a continuing and ill-disguised conspiracy against the laity. Furthermore, because judges come in many, but not all, shapes and sizes, so do their judgements—they can be good, bad and indifferent in style and substance. As such, it is fair to say that law libraries are not generally regarded as repositories of ­literary style and engaging reading.

That said, there has been, for the last couple of decades, a growing tendency to view law as literature and to explore judicial opinions in literary and rhetorical terms. For some, this reveals the poor or contentious quality of judicial writing and professional style. For others, this offers a rich and transformative window not only on the dynamics of judicial opinion writing, but also on the very nature of what law is. Is law merely illuminated by viewing it through literary spectacles? Or is law actually a rhetorical practice and little else?

In Creating Legal Worlds: Story and Style in a Culture of Argument, Greig Henderson, a professor of English at the University of Toronto, makes his own predominantly Canadian foray into this crowded field. He comprehends law as literature and views rhetorical style as less a supplementary flourish to law, but more a constitutive element of it: “the realm of law is a realm of rhetoric.” For him, therefore, law is a rhetorical practice in the grand Aristotelian tradition. Holding no brief for the essentialism of Plato and his followers, he elucidates how legal judgement functions as “first and foremost a story” that bridges the divide between the necessary and the contingent: the force and cogency of judicial opinions gain traction within the law’s culture of argument.

Although Henderson is ploughing familiar terrain, he cuts his own path by disagreeing with the received wisdom of law-and-literature scholars such as Richard Weisberg and James Boyd White that good style not only enhances the moral quality and virtue of judicial opinions, but also is part of their moral character. He is adamant that “beautifully crafted judgments can be morally vicious.” This is a welcome and important insight. Sometimes, it really is the case that, as the song goes, “someone ain’t pretty, she just looks that way.”

There is much here to enjoy for both novice and expert. Henderson does a good job of teasing out and explaining the rhetorical devices—figure, story, imagery, analogy, audience, etc.—that judges use, often unknowingly, in the best (and worst) examples of judicial opinion writing. Rather than cover a vast stretch of territory, he concentrates on several familiar cases in the common law. Relying on a good amount of Canadian material and, with appropriately healthy extracts from the chosen judgements, he leads readers through the rhetorical dynamics of judgements on sexual assault, causation, segregation, murderous intent and other forbidding legal chestnuts. The minefields are many and Henderson proves himself to be reliable and informative as he negotiates them.

One of the supposed great stylists of the law is Lord Denning. His writings are renowned in the legal canon, even though his judgements often come off as more Hardy Boys than Hamlet. But Henderson is not taken in by their superficial appeal and demonstrates the dubious politics that lurk behind some of his more celebrated judgements. However, an important caveat that Henderson does not mention is that most of Denning’s judgements were not written, but delivered spontaneously and orally from the bench. One must be mindful that narrative dynamic and structure likely vary from written to oral exposition. So to say that “old Tom Denning was a writer” is open to doubt on several fronts.

As much as he demonstrates that good rhetorical style can be persuasive, Henderson occasionally downplays the extent to which good legal rules can flow from badly written legal judgements; there is, as he otherwise concedes, no necessary connection between rhetorical style and legal merit. However, this concession seems to put in doubt some of Henderson’s basic insights about understanding law as rhetoric. The persuasiveness of a judgement may be less about its rhetorical style and more about its substantive politics.

Throughout the book, but especially with regard to his extended discussion of Denning’s judgements and, to a lesser extent, with the contributions of American jurist Benjamin N. Cardozo, I could not shake the feeling that, despite Henderson’s insistence to the contrary, rhetoric was not as crucial to the judicial enterprise as he asserts. As Henderson’s own text and commentary reveal, if you do not like the normative bottom line, then no amount of rhetorical persuasion will convince you otherwise.

Regrettably, his own style can be a little clotted and dry at times, especially in his concluding chapter where he pursues the philosophical implications of his view of law as rhetoric. Indeed, he eschews the touted virtues of narrative style throughout most of the book; he can be a little preachy and professorial about good and bad examples of legal writing. Although this is in some ways refreshing, it does not fit too well with the overall Burkean (as in the American literary theorist Kenneth, not Edmund) thrust of his rhetorical perspective that “narrativity … is at the core of human signification.” If he is telling a story, it is a very dense and detached one.

Perhaps the most challenging as well as perplexing part of the book is his concluding effort to address the broader philosophical and jurisprudential implications of treating law as a rhetorical exercise. Is the law-and-literature approach intended to be another way, among many, of looking at law and its judicial elaboration? Or is it meant to demonstrate that law is simply a rhetorical practice and it is rhetoric all the way down?

Although Henderson is far from clear or unconditional in revealing his own hand, he does seem to suggest that it is rhetoric all the way down. While he is too intent on distancing himself from postmodernism and its allegedly nihilistic tendencies, he still maintains that there are no fixed foundations on which the law stands or could stand; any perceived foundations are themselves constructed and reconstructed within, not beneath, law’s rhetorical practice. Law is what you persuade people it is and should be.

For me, a less arcane way to express that central insight is to point out that law is not simply what is left after lawyers and judges have gone through their rhetorical routines and produced their professional renditions: law is an inescapably organic exercise in which the doing is as important as what that doing produces. Law is a culture of argument—little more and little less. At his best and more lucid, Henderson to his credit has offered further ­illustration of that.