In this chapter I develop an approach to legal theory that is responsive to the traditions of natural law, positivism, and postmodernism. We are best able to understand and explain legal practice by drawing from the hermeneutical tradition in philosophy and the rhetorical tradition in the humanities to reveal the development and operation of “rhetorical knowledge.” The challenge is to conjoin the interpretive valence of hermeneutics with the deliberative space engendered by rhetoricRhetoric to enable a rich and productive account of legal practice. My argument rests on three central claims. First, I argue that the ontology of human existence is fundamentally interpretive and social, by which I mean that our way of being is defined through our activities as interpretive beings deliberating with each other. My second claim is that legal practice arises out of, and reflects, our ontological condition. Hermeneutical understanding and rhetorical deliberation constitute us and provide sufficient ground for developing rhetorical knowledge through our practices. Finally, I contend that the hermeneutical and rhetorical nature of legal practice means that it is not a closed system. Interpretive and dialogic activities make it possible to generate a critical distance from our prejudgments, allowing new meanings to unfold through practical reasoning.

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Law After Postmodernity: Ontology, Practice, Critique

  • Francis J. Mootz

摘要

In this chapter I develop an approach to legal theory that is responsive to the traditions of natural law, positivism, and postmodernism. We are best able to understand and explain legal practice by drawing from the hermeneutical tradition in philosophy and the rhetorical tradition in the humanities to reveal the development and operation of “rhetorical knowledge.” The challenge is to conjoin the interpretive valence of hermeneutics with the deliberative space engendered by rhetoricRhetoric to enable a rich and productive account of legal practice. My argument rests on three central claims. First, I argue that the ontology of human existence is fundamentally interpretive and social, by which I mean that our way of being is defined through our activities as interpretive beings deliberating with each other. My second claim is that legal practice arises out of, and reflects, our ontological condition. Hermeneutical understanding and rhetorical deliberation constitute us and provide sufficient ground for developing rhetorical knowledge through our practices. Finally, I contend that the hermeneutical and rhetorical nature of legal practice means that it is not a closed system. Interpretive and dialogic activities make it possible to generate a critical distance from our prejudgments, allowing new meanings to unfold through practical reasoning.