Jurisprudence recovered: Philosophical and rhetorical traditions in the theory of law.

摘要

This investigation traces the historical evolution of two distinct intellectual traditions in the theory of law, namely, philosophy and rhetoric. Depending on the writer and historical situation under investigation, the relationship between these two traditions is marked by either conflict or mutual interdependence.; Originally, jurisprudence had an almost synchronous relation with the rhetorical tradition. Modern jurisprudence, however, embraces the philosophical tradition while ignoring or denying any intellectual relationship with rhetoric. This philosophical turn in jurisprudence has had immediate consequences for both the theory and practice of law.; To better understand the nature and impact of these consequences, this project investigates critical junctures in the histories of jurisprudence, philosophy, and rhetoric. Chapters One and Two explore Athenian and Roman law. Chapter Three examines Medieval jurisprudence. Chapter Four investigates Renaissance and Modern jurisprudence. Chapter Five considers recent challenges to the philosophical turn in Modern jurisprudence. And Chapter Six outlines the need for, and consequences of, a recovery of the rhetorical tradition in contemporary jurisprudence.; Importantly, the intent of this project is not to recover the rhetorical tradition at the expense of the philosophical tradition. Indeed, this project finds that neither tradition, when theorized in isolation, provides an adequate intellectual foundation for the theory and practice of law. Ultimately, this project seeks to energize contemporary jurisprudence by outlining a theory of law that combines the best elements of both philosophy and rhetoric.; This project draws from several sources to reach this end; specifically, it draws from the work of Protagoras, Isocrates, Cicero, the Quattrocento humanists, the American Pragmatists, Chaim Perelman, and others. Each of these writers add unique and important elements for understanding jurisprudence. Many of the lessons that they teach, however, are obscured by the dominance of analytic philosophy in contemporary jurisprudence. This project seeks to overcome this analytic hegemony by recovering a pragmatic and prudential theory of law, one which is informed by both philosophical and rhetorical traditions. Such a recovery will have a significant impact on the way that the law is now theorized, practiced, and taught.