Legal Argumentation in the Godwin-Malthus Debates

For scholars who are interested in debating the importance of "critical rhetoric" in the field of communication (Charland, 1991; Cloud, 1994; 1998; Greene, 1998; McGee, 1990; McKerrow, 1989; Ono and Sloop, 1992, Owen & Ehrenhaus, 1993; Sandmann, 1994), one of the most important issues that has to be raised is the question of the interrelationship between material and rhetorical realities. This is an especially salient issue for legal communication scholars because most of the research in this sub-field has focused on analyses of major judicial opinions. From a critical rhetorical perspective, this emphasis on elite texts can be problematic because it obfuscates the role that "vernacular" discourse (Ono and Sloop, 1992) plays in creation of our "rules of law." Moreover, we need to reconsider the question of how much social change can take place when texts are altered, but social and material conditions remain basically the same. For example, a legal critic might use her discussion of materiality to look for t he ways in which decisions like Brown v. Board (1954) have actually influenced our notions of "separate but equal," or changed the living conditions of people of color in our society. As Wood & Cox (1993) remind us, we all live a world of "embodied lives, constrained, informed and framed by material circumstances such as living and working environments, food, and medical care--or the lacks thereof" (p. 278). In this essay, I employ a critical legal framework that allows one to look at the relationship that exists between legal symbolic universes and the material realities of individuals and communities who have to negotiate their way through particular judicial situations. Moreover, I hope to show that the use of jurisprudential terms that look emancipatory does not always mean that actual "freedom" or "liberty" exists in the lives of everyday citizens. The symbolic world is more than simply play and fabrication, and nowhere is this more obvious than in the realm of legal argumentation, where the romantic impulses of jurisprudence cannot hide the ways people gain and suffer (Lewis, 1994). As Makau and Lawrence (1994) noted in a previous essay in this journal, "[S]tudies of judicial reasoning" show that institutions have members who often use "inventional strategies that both reflect and help create cultural norms ..." (p. 191). In order to understand just how some of these judicial negotiations take place, I have divided this essay into four major sections. In the first segment, I discuss the relationship between law, materiality and critical rhetoric, keying on possible alterations in the way we think about ideographs (McGee, 1980) and ideology. In the second part of the manuscript, I provide a brief genealogy of the term "Necessity," including some of its political usages in the seventeenth and eighteenth centuries. The third portion of the essay then shows how some key classical liberal ideographs were deployed in the Malthus-Godwin "Poor Law" debates. Finally, in the last section of the essay, I provide a brief assessment of the potentialities of adopting critical legal perspectives. LAW, MATERIALITY, AND CRITICAL RHETORIC In most orthodox legal theorizing, jurisprudence is considered to be a field of scholastic inquiry, where the best theorists are able to put aside their subjective notions of ideology in their search for the true rules, principles, and standards of the law. Klinger (1994) averred that at one time "the theory of law and the theory of rhetoric had an almost synchronous relationship," but today that "relationship is substantially ignored, and overtly denied" (p. 236). Within this traditional perspective, legal argumentation may be influenced by external social disputation, but the "rule of law" is only altered by decision makers who can avoid being influenced by "politics" or "ideology." For example, Rosen (1999) has recently observed that there are those who believe that both conservatives and liberals need to follow the Founder's "original understanding" of the Constitution (p. …