Dennis R. Klinck, The Word of the Law: Approaches to Legal Discourse.
Ottawa: Carleton University Press, 1992. Pp. 458 [$34.95]. Reviewed by
James H. Roberts*
On Balance: Lexical Gymnastics and The Word of the Law
The shared concerns of two different academic or professional disciplines
often prove tantalisingly impervious to clarity of thought or discussion, for
when perceptions among different groups diverge radically, fundamental con-
ceptual difficulties arise. One of these difficulties involves the ability to con-
struct a valid argument that satisfies the criteria for thought and action within
both disciplines, especially when the conceptual gulf between a professional
enterprise and its alleged counterpart seems all too great. Attempts at bridging
the two areas can end in the expression of arguments that satisfy only within one
of the disciplines under consideration. Even more problematic, some arguments
appear valid to neither field of study.
law and literature –
Difficulties like these typify the problems encountered when making ana-
lytic connections between the language of literary criticism and studies in the
law. At first glance, these two disciplines –
appear
divided by central problems of viewpoint and method. To those unfamiliar with
the growing body of scholarly work in this area, even the proposition that lit-
erary criticism and the law share certain philosophic or interpretative features
is a tenuous one, at best. At worst, this interdisciplinary “marriage” might seem
an unholy union, fundamentally flawed and overly simplistic, if not wholly
facetious. After all, the traditional realm of the literary engages the interpreta-
tion and aesthetic judgment of fictional texts; the law ostensibly involves the
interpretation of factual events and social judgment. Given these traditional dif-
ferences, where can one begin to assess or discuss similarities? Put more con-
cretely, how could a scholarly reading of Paradise Lost possibly connect with
the judicial interpretation of, say, the Canadian Charter of Rights and Free-
doms?
To make matters more complex, the legal-literary dialogue itself can be
confusing, even to those specialists from either discipline who wish to explore
legal or literary – must prepare
connections more fully. Critical thinkers –
themselves to examine the contentious conceptual issues argued in various legal
* Doctoral candidate in English, University of Waterloo. Instructor for the Translation Depart-
ment at Glendon College, York University.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 732
Mode de rrfdrence: (1994) 39 R.D. McGill 732
19941
BOOK REVIEWS
and literary journals, written by commentators as disparate in their thinking as
Richard Posnerl or Stanley Fish.’ Interdisciplinary preparation like this is no
mean feat, for it requires a level of background familiarity with both disciplines
that is attained by few readers indeed.
The hazards of the “familiar” in this context cannot be overstated. The
simple reliance on one’s own discipline, for example, to interpret the other is
itself problematic; despite appearances to the contrary, neither the law nor liter-
ary theory lends itself to easy definition. Legally informed approaches to the
language or the study of law, for example, are not readily accessible to those
outside the profession. Moreover, literary theory itself is currently a widely var-
ied and almost amorphous subject: literary theory has arguably become a
“catch-phrase”, describing only loosely connected professional practices. Theo-
ries of literature today incorporate analytic programs that span a lexical and tex-
tual gamut from studies of a text’s auteur to chaotics, linguistics and even zod-
semiotics.3 Furthermore, both areas of study have their own attendant
gatekeepers of meaning, and requirements for disciplinary competence are quite
jealously guarded, usually by traditional and pedagogical methods.4
Still, the problem of joining these two different communal viewpoints
makes the interdisciplinary connections that might exist –
at various levels of
all the more intriguing. Both disciplines interpret texts, and
analytic thought –
both are concerned with language and meaning in various complex contexts.
Surely there must be a way to map the terra incognita that these two enterprises
– mostly unwittingly –
share. The problem remains, however: How does one
begin to view this common ground across the disciplinary divisions that prop-
erly exclude each other by definition?
In this problematic legal and literary milieu; Dennis R. Klinck’s recently
published work, The Word of the Law, provides an excellent overview of the
cognitive terrain. Klinck –
by training both aprofdssor of literature and an
accomplished legal professional –
is well-situated to comment on these mat-
‘See “Law and Literature: A Relation Reargued” (1986 7T2irginia L. Rev. 1351.
2See the many articles on law and literature in Fish’s Doing What Comes Naturally (Durham,
N.C.: Duke University Press, 1989).
3For the fundamentals of “auteur”, criticism, especially as it relates to the analysis of film as
“text”, see J. Monaco, How to Read a Film, rev. ed. (New York: Oxford University Press, 1981).
“Linguistics” is, of course, a well-known discipline in and of itself, while “chaotics” borrows from
investigations in general systems theory and the scientific “chaos” of non-linear .5ystems (see N.K.
Hayles, ed., Chaos and Order: Complex Dynamics in Literature and Science (Chicago: University
of Chicago Press, 1991)). Zo6semiotics, or “the study of signalling behaviour in and across animal
species,” is a term coined by Thomas Seebiok in “The Notion of Zodsemiotics” in 1963; it has a
particular resonance for the emerging “ecocritical” literary field. Seebiok’s article is reprinted in
J. Deely, B. Williams & RE. Krause, eds., Frontiers in Semiotics (Bloomington, Ind.: Indiana Uni-
versity Press, 1986) 74.
‘One well-known, historically-based exposition of these problems in an American literary con-
text is Gerald Graff’s Professing Literature (Chicago: University of Chicago Press, 1987). See S.
Fogel, The Postmodern University (Toronto: ECW Press, 1988), especially at 143-50, for a more
radical (and “irreverent”) discussion of the role of the university as arbiter of disciplinary values
in a Canadian context.
5D.R. Klinck, The Word of the Law (Ottawa: Carleton University Press, 1992).
REVUE DE DROIT DE McGILL
[Vol. 39
ters. Because of his interdisciplinary training, his work steers clear of some of
the problems that make other texts difficult to read from a cross-disciplinary
perspective. In short, Klinck provides what has been most often lacking in trea-
tises in this field: a balanced discussion of starting points. Consequently, the
book covers a wide range of material, beginning with a philosophic overview
of how language affects thought and ending with an analysis of how “good”
texts are aesthetically determined in the legal community. While there are
always problems with surveys like this one, the balanced viewpoint Klinck
brings to long-standing arguments about these issues testifies to his careful
preparation and presentation of topics in spite of the complexities of the subject.
Klinck himself states that his work is preliminary and introductory. More
precisely, he says that this work will concentrate on the practical analysis of
legal texts, and only partially engage theoretical questions:
My book is, I think, both modest (or naive) and ambitious (or pretentious).
It is modest in making no claims to ultimacy, or even, really, to theory. Rather, its
main focus is on the kinds of practical observations that can be made about legal
discourse of various kinds. Perhaps what makes it significant is the range of ways
of looking at texts that it suggests, and its application of those ways of seeing. But
it does not go very deeply into the theoretical issues that dog those ways of seeing.
Thus, in being in a sense introductory it is also modest. But it is ambitious in look-
ing at a range of topics –
topics to any of which others have devoted years of
study, and of which I can hope to have only limited knowledge. However, being
ambitious in this sense, it may be’usefid for the non-specialist who wants to see
something of the broad spectrum of considerations relevant to the subject “law and
language.
‘ 6
Even in his introduction, Klinck’s splitting of theory and practice are quite tell-
ing for the structure of his own work. On the one hand, The Word of the Law
analyzes legal texts to show how different views of language can inform studies
of the law. On the other hand, Klinck both confronts and neglects the larger, the-
oretical issues implied by his own analysis. Maintaining the view that “theore-
tical issues” are secondary to this project, Klinck supplies the warning that The
Word of the Law will not be like the other works on law and literature, and that
his book’s value lies in its wide and introductory scope.
With these caveats in mind, it is surprising just how often The Word of the
Law discusses theoretical issues at the heart of the literary-legal discussion.
Beginning with the “common-sense” view of language as a “referential” reflec-
tion of things in the outside world, Klinck first notes that this view of language
dismisses mis-communications by condemning them to the realm of “mistake”:
words do not relate to things when they are used imperfectly or imprecisely.7
Noting, however, that “things” in the world do not necessarily correspond to
“moral” feelings or ideas, and that perfect correspondence between word and
thing implies a kind of perfect knowledge, Klinck quickly complicates this
straightforward view of language.8 Citing Locke’s argument that words relate to
ideas, not things, Klinck details the philosophic implications inherent in the
6 bid. at 3.
7Ibid. at 10.
‘Ibid.
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CHRONIQUES BIBLIOGRAPHIQUES
resulting view of language’s link with reality. The one-to-one correspondence of
language with objective reality is broken down here: ideas interfere with the
immediate reference of word to thing.9
But if reality is only perceived through our ideas and senses, and then
reflected in a language, to what extent does the language we inherit or choose
influence those very ideas? In its “extreme” form, the theory that language
shapes reality and determines the limits of what we can know or express is the
hypothesis of anthropologist and linguistic theorist Benjamin Whorf. 0 And it is
to Whorf’s claims for a “relativistic” and language-based reality that Klinck
directs most of his attention. Throughout his chapter on “Language and
Thought”, and (implicitly) through the rest of The Word of the Law, Klinck con-
stantly counters Whorf’s “extreme” claim with other commentators who seek to
ground reality in some ultimately knowable form.” So, for example, Klinck bal-
ances Whorf’s claim that language affects the way we divide up the “real” with
the notion that “deep” structures of “grammar”” give universal form to meaning
regardless of individual language or culture. 3 In other words, for the pur-
–
poses of analysis, Klinck wants his readers to believe that while language is
important in shaping thought, the reality to which language (at least partially)
refers is still more important. 4
Given this balanced position, Klinck discusses numerous facets of “weak”
linguistic relativity and the law, and in his careful exercise of theory he illumi-
nates many interesting and thought-provoking characteristics of legal expres-
sion. For example, in his investigation of the ways criminal law distinguishes
between “degrees” of intention, Klinck shows just how legal language forms
distinctive patterns of thought about real events:
A layperson might think in terms, of a dichotomy: a person either means or does
not mean to do something; perhaps he or she is “careless.” But the criminal law
9lbid. at 11-12.
‘0Collected Papers on Metalinguistics (Washington: Foreign Service Institute, United States
Department of State, 1952) at 21.
“It is interesting that Klinck feels he must refrain from siding with Whorf “too strongly”,
regardless of the fact that most of the trenchant analysis in The Word of the Law relies on a “Whor-
fian” view of language. Perhaps The Word of the Law here becomes a little too timid in its balanced
outlook, for linguistic “relativity” is-no more a “threat” to meaning than scientific “relativity”
threatens one’s use of, say, one’s car. There are many constraints on meaning and its use within
culture, even if ultimately we have difficulty (to put it mildly) perceiving outside our cultural and
linguistic domain. The term “perspectivist” (rather than relativist) may be a better one to use in
this context, for it more accurately describes the complex effects of the “Whorfian” framework for
meaning. “Perspectivist” itself is borrowed here from neither linguistics nor literature, but from sci-
ence: See Ludwig von Bertalaniffy, who has little trouble with Whorf’s views when dealing with
complex biology and systems theory, in General System Theory: Foundations, Development,
Applications, 11th ed. (New York: George Braziller, 1993) c. 10.
12This view of “deep structure” is the famous one put forward by Noam Chomsky, and is one
which, like Whorf’s, has been the subject of controversy (even to the point where Chomsky himself
no longer refers to “deep structures” of grammar). For a full discussion of the problems Chomsky’s
view created in the linguistic community, see R.A. Harris, Linguistic Wars (New York: Oxford
University Press, 1993).
‘3Klinck, supra note 5 at 20.
“Ibid. at 24.
McGILL LAW JOURNAL
[Vol. 39
attaches a whole range of labels which tend to carve up the continuum of mental
states much more finely: “motive,” “purpose,” “desire,” “intention,” “knowledge,”
“wilful blindness,” “recklessness,” “criminal negligence,” “gross negligence,”
“inadvertent negligence,” “thoughtlessness,” “carelessness,” “wantonness,” “sim-
ple inadvertence,” “accident.” Again, these are all terms which co-exist in the
ordinary language; but the average speaker’s usage dissects reality in a different
way from the lawyer’s usage. The lawyer sees the world in terms of this linguistic
usage.’
5
Despite Klinck’s own theoretical misgivings over Whorf’s view of language,
the analytic tools provided by the theoretical discussion are here particularly
apt. In his conclusion to this chapter, however, Klinck again returns to an argu-
ment of impartiality, saying that, theoretically, the implications of the arguments
he has discussed are “not altogether clear,” but that a general “critical sensitiv-
ity” to language itself is, perhaps, the best place to begin analysis. 6
This first chapter of Klinck’s text forms the pattern for the remainder of the
book. Klinck raises representative arguments, then proceeds to analysis based
on some of the implications of the theoretical discussion. So for example, when
discussing the notion that legal language “signifies” different things in different
the semiotics of legal language – he examines first Ferdinand de
situations –
Saussure’s linguistic basis for structural analysis and the semiotic theories of
C.S. Peirce and I.A. Richards. 7 Following his discussion of these notions,
Klinck then analytically exercises them in a legal context. After developing the
idea of “semiotic differences” in legal concepts, Klinck discusses the historical
title “defender of the faith” as a legal representation understood (differently, of
course) by both King Henry VI!I and Pope Leo X. 8 Similarly, in assessing the
different ways that “sound-images” of specific words can connote different cul-
tural values, Klinck applies the linguistic distinction to connotative differences
between legal forms of language which limit the use of property in a trust.19
More complex, perhaps, is Klinck’s analysis of legal “signs” as derived from
Peirce’s theories. 0 “Iconic” elements of signs (such as photographs or demon-
strations in evidence) communicate through actual physical or cultural resem-
blance,2′ while the “indexical” elements of a sign (like “blood” signifying a
“wound”) identify the extent of the event or object.22 “Conventional” elements
of signs (such as specific uses of language forms in the law) are purely “sym-
bolic”, for an arbitrary meaning is culturally established between the sign and
its concept.2
In this kind of detailed analysis, The Word of the Law is at its strongest, for
Klinck teases out of numerous legal, and a few, surprisingly literary, texts the
closely patterned connections of thought manifested in law by its different lex-
151bid. at 30.
’61bid. at 38.
171bid. at 47-62.
“8Ibid. at 60.
19Ibid. at 63.
Z1lbid. at 69.
21Jbid. at 72-73.
22Ibid. at 74-78.
23Ibid. at 71.
1994]
BOOK REVIEWS
737
ical and symbolic expressions. Further, for those accustomed to reading literary
analyses of American constitutional documents, Klinck’s work provides a
refreshingly Canadian corrective. The Word of the Law continues this analytic
inquiry in numerous areas by examining questions of “Interpretation”, “Legal
Language”, “Legal Diction”, “Syntax”, “Narrative”, “Metaphor” and “Critical
Evaluation”.
For instance, to illustrate how different perspectives provide a variety of
grounds for interpretation, Klinck discusses whether the meaning of a text really
rests primarily in texts themselves, in the consensus of a group of informed
readers, or in the original intentions of the authors.24 While this interpretative
question poses potentially insurmountable problems, Klinck points out that for
the writers of a proposed new Canadian Criminal Code,’ a notion of “textual-
ism” governs interpretation:
Recently, the Law Reform Commission of Canada has been attempting to draft a
new Criminal Code. It has included the following interpretation provisions:
(a) The provisions of this Code shall be interpreted and applied according
to the ordinary meaning of the words used read in the context of this
Code.
(b) Where a provision of this Code is unclear and is capable of more than
one interpretation it shall be interpreted in favour of the accused.
These provisions again imply a belief that the meaning of a text can be plain or
clear, that there is such a thing as “ordinary meaning.” …
Again, my point is simply that, although there may be paucity of defences of
textual formalism coming from “sophisticated” academic writers, textual formal-
ism may be alive and well as a theory of legal interpretation –
although it may
never work when it is tested.26
Klinck’s analysis, while grounded in a literary and hermeneutic perspective,
points to a difficulty rarely seen in purely literary works, for authors of fiction
rarely give their readers instructions about how to read their work.
Similarly, Klinck investigates narrative analysis (from a body of work that
may be described as “narratological”) by analysing the salient structures of a
report in the trial, R. v. Townley!’ For example, Klinck asks whether or not
“durative-descriptive clauses” (“D.D.C.’s” in Klinck’s text) – which encode a
narrative time that suggests a persistent “state of affairs” – provide a subtly dif-
ferent meaning than “story event clauses” (“S.E.C.’s”), which pinpoint an event
at an “instantaneous” moment in narrative time:
In Townley itself we may query whether D.D.C.’s are ever preferred to S.E.C.’s for
essentially “artistic” reasons. Thus, we are not told “Townley cut her throat three
times” but, rather, “the deceased was found … with her throat cut in three places.”
That is, a central event in the narrative –
is introduced in a
stative, rather than an event clause. Perhaps this manifests no more than a careful
the actual killing –
24Ibid. at 96.
2Law Reform Commission of Canada, Recodifying Criminal Law (Report No. 31) (Hull, Que.:
26Supra note 5 at 99 [endnote omitted].
27(1863), 3 F & F 839, 176 E.R. 384. Klinck provides the whole text of the excerpt in an appen-
Supply & Services Canada, 1987).
dix to his chapter on “Narrative”.
REVUE DE DROIT DE McGILL
[Vol. 39
exposition of the evidence, but it might have other motivations –
for example, the
objectivizing or distancing of the most horrible part of the story (suggested as well
by the epithet, “the deceased’;).2s
By closely examining the features of “story” that the report tells, Klinck points
towards a valuable set of methods for further analysis of the law. Moreover, he
also emphasizes the complexities that occur in any story –
even in as simple
a legal “tale” as a recitation of facts.29
But these complex analyses give Klinck some problems on the theoretical
front. As previously mentioned, Klinck goes out of his way to qualify his
approach, lest he give the impression that he too has been seduced by the
charms of linguistic relativism. A sample from the chapter on “Interpretation”
shows the extent to which Klinck qualifies his analytic insight:
I find Moore’s view [on the referential nature of language] compelling –
but
I think that it mistakes the nature of language. Or, at least, it depends on language’s
being essentially only referential. Whether we like it or not, language –
even,
probably, legal language –
signifies variously. In saying this, I do not adopt a rad-
ical linguistic relativism: the fact that language can be used to “skew” our percep-
tions of things does not mean that there is no objective reality, even ethical reality.
But it means that our medium for conveying meaning –
is inade-
quate to its task. Moreover, to the extent it approaches adequacy, it must be mul-
tidimensional, capable of meaning in different ways –
for example, texturally as
well as “literally.” And appreciating how language means requires becoming sen-
sitive to the complex of factors involved in its use.30
language –
In his quest to present an “objectively” argued view, Klinck constantly must bal-
ance his desire for stability with the findings of his close and careful readings
of legal text.
Consequently –
despite Klinck’s qualifications –
The Word of the Law
frequently contradicts itself. Paradoxically, the inferential weight of his ex-
amples and analytic exercises seems to overpower Klinck’s strong intention to
keep theoretical problems in the background of his text. All too clearly, the
implications of Klinck’s analysis of metaphor and the law betray Klinck’s own,
oft-stated theoretical impartiality. Following Lackoff and Johnson, among oth-
ers, Klinck notes that
we rhake reality manageable by thinking about it metaphorically. But I do think
that we have to be aware of these metaphorical structures as metaphorical: they are
a shape that we have imposed upon reality. They are inevitably distorting in that
they highlight certain concepts while obscuring others. 3 1
This conception of metaphor is strikingly similar to the “Whorfian” view of lan-
guage that Klinck finds so problematic. If we “manage” reality “metaphoric-
ally”, then isn’t that tantamount to suggesting that our use of language deter-
mines what we know about reality?
Klinck’s own “objective” stance –
is also
implicated in this analysis of metaphor and the law. Klinck goes as far as to sug-
his difficult “balancing act” –
I’Supra note 5 at 318.
29Ibid. at 323.
30Ibid. at 123.
31Ibid. at 357.
1994]
CHRONIQUES BIBLIOGRAPHIQUES
gest that a metaphorical notion of “subjectivism” itself is at the root of the law’s
“distrust” of metaphor:
Thus, the law’s distrust of subjectivism –
may be related to its distrust of metaphor. Ironically, this distrust is expressed in
terms of one of the pervasive formative metaphors in the law.
as a kind of importation of the alien –
Dickson J.’s judgment here can be read for a complex of (I believe) conven-
tional legal metaphors associated with territory. Thus, parties “take up positions,”
they “carry burdens,” they cross thresholds, they have to stay within boundaries,
they meet obstacles, they find paths closed, doors open, alternative ways available.
What emerges is an image of a person moving not so much through a landscape
as through a maze. Perhaps this is the controlling image of the law. We might want
to question whether it should be.32
Disappointihgly, Klinck’s text raises this intriguing notion without actually
pointing towards ways that this “controlling image” might be challenged. At
these junctures in Klinck’s text, I wish that he had given up his “introductory”
and “balanced” stance, in favour of his own analytic advice, and developed a
more fully argumentative position.
Klinck’s own adherence to an “objective” metaphor makes The Word of the
Law less useful as an overview than it promises. The lack of any detailed over-
view of feminist approaches to language and power, for example, is a particu-
larly glaring omission. To be sure, Klinck does mention feminist approaches to
the law, but given the length of this work, these perspectives are tellingly rel-
egated to a supporting role in his view of metaphor: “And much of the work of
feminist writers consists of the positing of new or alternative metaphors for
social experience.” ‘ While Klinck’s perception is no doubt apposite, it simply
doesn’t go far enough. Any number of feminist works in literature or the law
should have been more fully presented in this text. Noticeable too, is the lack
of argument on behalf of the (generally much misunderstood) claims of post-
structural analysis. References to Stanley Fish notwithstanding, a whole body of
relatively recent research, from Jacques Derrida’s work on the “grammatologi-
cal” structures of meaning to Michel Foucault’s historical treatises on language
and institutional power are largely –
ignored in The Word
of the Law3
if not completely –
Perhaps this is an unfair criticism, because Klinck does not explicitly pur-
port to deal with the theoretical complexities that these thinkers investigate.
Still, theory implies practice, and practice in turn informs theoretical perception,
321bid. at 356 [endnote omitted].
33Ibid. at 358.
31I realize, of course, that a survey cannot include everything. And Klinck does mention
“deconstruction”, but like many (though not Derrida) who use the term, he doesn’t ever explain
what he means. As is the case with Klinck’s (non)incorporation of the feminist viewpoint, a single
quote from Derrida’s “White Mythology” hardly constitutes either an explanation or an overview
of his position. This is all the more strange in that Derrida’s work over the last thirty years has argu-
ably influenced literary and philosophic discussion of language more than any other recent thinker.
See J. Derrida, Of Grammatology, trans. G. Spivak (Baltimore, N.J.: Johns Hopkins University
Press, 1976) for a good introduction to his theories on language, semiotics and writing. For a less
theoretically –
oriented work, see his “Racism’s Last Word” in H.L.
Gates, ed., “Race,” Writing and Difference (Chicago: University of Chicago Press, 1986) 329.
and perhaps more legally –
McGILL LAW JOURNAL
[Vol. 39
as The Word of the Law constantly demonstrates. As a result of these omissions,
the book is at its most tentative and confusing when it deals with the questions
raised by these recent analytic writings. Further –
and Klinck acknowledges
this shortcoming –
the weakest part of the text concerns another “epistemolog-
ical” discipline: the study of rhetoric.
Klinck, citing Kenneth Burke, investigates rhetoric as a way to “approach
legal discourse” as a “structure in the larger sense.”’35 This formulation, how-
ever, begs the question: But what sort of structure? Rhetoric, as Klinck himself
points out in his chapter on “Rhetoric”,36 is one of those terms that requires care-
ful definition, for it means one thing in general use (as in “a politician’s pro-
mises are nothing but rhetoric”), another to the historian and philosopher (as in
“the arrangement of ‘surface’ ornaments of language belong to the traditional
study of rhetoric”) and still another in current “literary”37 parlance (“rhetorical
theory … has come to focus today on the question of the source and status of
knowledge”‘3 ). Some of Klinck’s problems emerge from these multiple defini-
tions, for despite his attempt to define rhetoric in a quasi-Aristotelian sense, he
uses the term inconsistently in his own arguments. Throughout The Word of the
Law, rhetoric variously stands for “non-formal persuasive argument”, 39 “disin-
genuous argument”, or “stylistic ornament”.” – More problematic is Klinck’s
view of rhetoric as essentially prescriptive. Whether ancient or modem, Klinck
discusses rhetoric as if it were only a set of guidelines for making effective argu-
ments, whether ethically “true” or misleadingly “false”. Consequently, most of
Klinck’s rhetorical investigations emphasize the arrangement of arguments or
figures of speech in text. For example, Klinck finishes his analysis of rhetorical
structure in legal documents by stating that the conclusions of a text “indicate
that any discourse must end in some way, that it may be worth attending to how
a given discourse does end, and asking what justification –
rhetorical or ‘other-
there may be for such a finishing off.” 2 As far as they go, Klinck’s
wise’ –
views here are accurate, and even appropriate insofar as rhetoric is figured here
as a guide for arrangement. For Chalin Perelman, however, whose rhetorical
theories Klinck partially employs, the formal arrangement and nature of argu-
ments are not the main thrust of modem rhetoric. Rather, for Perelman (and
many other contemporary rhetorical practitioners) the questions most applicable
to a discussion of the law and rhetoric would examine the “adherence” of the
audience to a given argument.43 Certainly, this view of persuasive analysis could
35Supra note 5 at 201.
3 6Ibid. at 172.
37Quotation marks are required here since “rhetoric” as an academic discipline is often,
“divorced” from literary studies and frequently resides in its own department, or within “Speech
and Communication” departments. This is especially the case in the United States.
38P. Bizzell & B. Herzberg, eds., The Rhetorical Tradition: Readings from Classical Times to the
39Supra note 5 at 174.
4Ibid. at 410.
41lbid. at 409.
42Ibid. at 201.
43See C. Perelman & L. Obrechts-Tyteca, The Nfew Rhetoric: A Treatise on Argumentation, trans.
Present (Boston: St. Martin’s Press, 1990) at 14.
J. Wilkinson & P. Weaver (London: University of Notre Dame Press, 1969) at 511.
1994]
BOOK REVIEWS
yield fascinating insights for examining any legal debate, juried or not, pub-
lic or private. Interestingly, Klinck moves towards this broader sense of
rhetorically-based criticism in the conclusion of his chapter on “Evaluation of
Legal Texts”:
Indeed, what this exercise may demonstrate in the end is a kind of “percep-
tualism” – my saying, “here are features of this text to which I wish to draw your
attention; you should see it in this way.” In doing this, I believe that I have at least
had to look closely at the texts, to explain my evaluations in some detail; perhaps
I have set an example of looking at texts more sharply, even though ultimately my
value judgments cannot be “logically” justified.
Klinck is clearly arguing “probable” values here and expects to win audience
approval for his evaluative efforts. But if his arguments are not a logical or
formal justification, then what sort of rhetorical “adherence” does Klinck expect
from his audience? Why are legal judgments convincing, after all?
Perhaps it’s not surprising that in his final analysis of the confluence of
“literary theory” and the law, Klinck almost apologizes for “losing his balance”.
In concluding The Word of the Law, Klinck acknowledges that the weight of his
analysis supports the “relativist” view of language and its use in law, and again
“qualifies” his support for the implications of his own analysis.4 Here this rel-
ativist view of language is called a “nominalist position”:
I feel some uneasiness, in retrospect, because so much of what I have written
implies a nominalist position. Indeed, if one wants to give prominence to lan-
guage, as I have done, it is in one’s interest to adopt a nominalist stance. Realism
inevitably assigns to language –
a subordinate role. But
nominalism says, in effect, “The word’s the thing.” Much of my study may appear
to take this position. 4 6
to any system of signs –
Klinck fears this stance might lead his readers down a philosophically limiting
one which might go by the name, though Klinck doesn’t name it, of
path –
“postmodem nihilism”. In place of these alleged problems and complexities,
Klinck calls for a view of text that is fully objective in its new manner of
accounting for meaning:
Finally, I suppose, I would prefer an account of the word as the incarnation
of meaning, the mode in which the meaning is figured forth. In such an account,
the sign is not autonomous, because it does incarnate something. At the same time,
that something cannot do withbut the sign, because only by incarnation in the sign
can it be figured forth.4 7
Leaving aside for the moment obvious figurative problems with his call for an
“incarnation”, and his problematic insistence on a fully “pragmatic” stance, it
is evident from this passage that Klinck acknowledges, if only implicitly, the
limitations of the binary oppositions he constructs with his categories of “objec-
tive reference” and “nominalist despair”. In fact, he wants to stop “balancing”
the two altogether and proceed to a different kind of analysis.
“Supra note 5 at 400.
45Jbid. at 410.
461bid. at 409.
471bid. at 411.
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[Vol. 39
And here I can partly agree with Klinck, even if I don’t endorse his nearly
theological resolution and desire for “immediate” meaning in legal text. In his
call for a different framework and another beginning for analysis, he recognises
that there are other ways to continue the fruitful analysis of law and literary
theory. Rhetorically speaking, we argue about legal theories –
and literary ones
because the way these concepts form part of our larger cultural context is
–
important.
The use of these different languages affects us –
individually and in com-
munities –
and efforts to persuade us, though not based on some ultimate or
“incarnate” verity, have a real impact on our thought, our actions and our lives.
Furthermore, rhetoric, or how we argue about what is relatively important, does
not disappear in an undefined and transcendent “everything” in this view of lan-
guage, as Klinck implies in his conclusion.48 Argument has its limits and discus-
sions stop, even in a “relativist” world: there is no “rhetorical” language in the
face of mathematic proof or at the point of a gun.49 In this rhetorical view, lan-
guage and legal text, argument and discourse play a large and complex role in
maintaining the possibility for open discourse and effective action.50 In his final
call for a recognition of the complexities of language situations, Klinck seems
to be urging research towards precisely this kind of complex rhetorical and
semiotic analysis. A new analysis of the words of the law would extend beyond
the analytic exercises –
of Klinck’s present,
introductory work.
as intriguing as they may be –
On balance, then, The Word of The Law is a valuable survey of starting pla-
ces, and the book can provide a necessary training ground for those who seek
to understand more critically some of the issues involved in legal-literary dis-
course. Klinck’s excellent analytic exercises, as far as they go, examine many
“first principles” of language and the law. Still, Klinck’s rhetorical desire for an
“impartial” and ultimately “balanced” view seems excessive in light of recent
theoretical issues and his own analysis. For my part, I know my own ways of
reading Klinck have been undoubtedly altered by my training in rhetoric and lit-
erary theory. Speaking rhetorically, then, I wonder what the introductory over-
view provided by The Word of the Law might achieve –
technically and artis-
tically –
in the eyes of another judge.
41Jbid. at 410.
49Though, ot course, how we perceive and consequently argue about these non-persuasive ele-
ments of life is still arguably rhetorical.
5 0See K. Burke, On Symbols and Society, rev. ed. by J.R. Gusfield (Chicago: University of Chi-
cago Press, 1989) for a good overview of some of the complexities in this rhetorical enterprise.
