Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.Download the article from SSRN at the link.
CFP: Judicial Rhetoric: A Symposium
April 5, 2024
University of Virginia School of Law
In collaboration with Case Western Reserve University
Judicial writing is a genre in flux. While court opinions remain both potent and controversial, many judges explicitly write for lay audiences or to entertain specialists. The resulting documents are quoted by the press, invoked at confirmation hearings, and memed in social media. Judges have been praised or blamed for cracking jokes, sharing hoary vignettes, and reciting song lyrics. Commentators might be forgiven for missing an older approach to judicial writing, one marked by a more technical, even tedious style.
We believe that literary and legal inquiries intersect in the judicial opinion and its rhetoric. Different methodologies are relevant to this joint inquiry, ranging from qualitative historical research to statistical modeling to literary scholarship.
We invite paper proposals for a one-day conference on the topic of law and rhetoric, broadly understood. Consider an illustrative set of questions:
- How do legal decisions incorporate or interact with poetic and narrative genres?
- How do literary genres represent legal argumentation and reasoning?
- What are the effects of new media and technology on legal practice?
- What is the role of the text, the author, and the audience in legal discourse?
- How can judges use rhetoric responsibly, or ethically?
- How does contemporary work on race, gender, sexuality, and ability bring together law and literature?
- How is rhetoric developed, situated, and used in specific institutional contexts (the academy, the court)?
A keynote address will be delivered by Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit. Judge Bibas was previously a professor of law and criminology at the University of Pennsylvania Carey Law School.
Papers may represent work at any stage of development but should be no more than 5,000 words or 10-12 minutes in length. (A paper may be a digest or portion of a longer work.) A second symposium, with its own call for papers, will be held at Case Western Reserve University in 2025.
By September 15, 2023, please send a short bio of 50-100 words and abstract of 250 words to Richard Re (firstname.lastname@example.org), Walt Hunter (email@example.com), and Martha Schaffer (firstname.lastname@example.org). Accepted papers will be due and circulated among participants in mid-March. Questions are also welcome.