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THE REVIEW OF COMMUNICATION
1 (2001): 177-182
© 2001 National Communication Association

Reconstructing Jurisprudence as

Transformative Rhetoric

William E. Wiethoff

Allan C. Hutchinson. It’s All in the Game: A Nonfoundational Account of Law and Adjudication. Durham and London: Duke University Press, 2000. xii + 374 pages. Notes and index. $54.95.

While Osgoode Hall was being renovated, a prominent member of the law school’s faculty was composing a blueprint for the reconstruction of common-law adjudication. Drawing on his passion for soccer, Allan C. Hutchinson grounds his critical project in “playing the game” (1). Judges, he insists, should engage in “a legal game of interpretive playfulness” (“nonfoundational” jurisprudence) rather than more traditionally seeking applications of universal principles (“foundational” jurisprudence) or radically rejecting principles for an exercise of arbitrary power (“antifoundational” jurisprudence) (37). Allying himself with leading critical theorists such as Foucault, Derrida, and Lyotard, Hutchinson endorses the viewpoint of Wittgenstein and treats adjudication as “a language game of contingent character” (53).  More specifically, because “language is constitutive rather than designative, contextual rather than abstract, and political rather than metaphysical” (76), judicial opinions should be read as rhetoric or poetry rather than logic or science. A nonfoundational jurisprudence is a “robust and effective companion for a subversive politics that is committed to confronting and confounding the oppressive workings of elite institutions” (255); nonfoundational judges are imaginative and rhetorically skillful in pursuing “a more flexible and less oppressive social structure” (328). Otherwise, as Hutchinson notes about the tenor in his 1995 Waiting for Coraf: A Critique of Law and Rights, adjudication might be inimical to a truly democratic society (37, n. 36).

 Professor Hutchinson writes as elegantly and pointedly in his scholarly books and law journal articles as in his popular works and contributions to the Toronto Star. Articulate and occasionally lyrical, It’s All in the Game offers a highly attractive exposition of critical theory in illustrating a related thesis that the best jurisprudence offers the most attractive judgment. A brief, clear assessment of the book would offend the author’s sensibilities about judgments that lack instability and volatility. However, the book’s organizational strategy can safely be said to identify Hutchinson’s intellectual grounding in the initial four chapters, refute alternative accounts of jurisprudence in chapters five through eight, and expound the nonfoundational project in the final three chapters. An appendix of classically sophistic dissoi logoi, paired arguments invoking either precedent or policy, illustrates the potentially indeterminate outcomes of judicial decision making.

 To forestall hasty rejoinders to his approach, Hutchinson locates his ground in the “mature theory” of H.L.A. Hart. However, following Wittgenstein’s notion of language games more closely than did Hart, Hutchinson argues that “convention and context” are essential to the meaning of legal language and that, as a result, “the practice of adjudication becomes an incorrigibly indeterminate and political exercise” (54). Furthermore, legal texts authored by “reactionary writers, such as legislators or judges” can be interpreted imaginatively to benefit “those who are presently excluded by entrenched patterns of oppression” (104). In this sense, rhetoric can be villainous because reactionary writers may use it to imbue their statutes or opinions with the appearance of truth and coherence. The purpose of nonfoundational jurisprudence is to challenge “the grounds on which a particular interpretation is claimed to be authoritative or determinative” (109).

Hutchinson persuasively identifies the critical function of his approach to jurisprudence but, heroically or vainly depending on the reader’s politics, he also extends his reach toward practical results that seem beyond his grasp. Wide appreciation of nonfoundational jurisprudence, he suggests, “might” impel legal professionals to address social ills — “economic deprivation, public illiteracy, sexual violence, education, racial hatred, and other such issues” — as well as “enrich and transform the lives of judges and lawyers” (111). Yet the uncertainty of these results, the restricted application of his approach to appellate decision-making, and the lack of role models in common-law jurisdictions are daunting hurdles even for an athletic intellectual to surmount. In addition, the author does not explain why education is a social plague of the same type as public illiteracy. Later in his book, to his credit, the author does engage more closely the other issues.

In his central chapters Hutchinson refutes alternative approaches to jurisprudence — “foundational” and “antifoundational” — including the naturalist perspective, legal pragmatism, the antifoundational approach, and deep-logic theories such as feminism and Marxism. In each refutation, case law from common-law countries is analyzed deftly to illustrate why a given alternative is flawed.

From the naturalist perspective, law has a transcendent quality that empowers judges of integrity to reach right and moral decisions. Hutchinson decries this foundational and idealistic perspective, as articulated by Ronald Dworkin and Ernest Weinrib, for casting judges as “heirs of the Platonic tradition.” Naturalists believe in one best way to play the game rather than acknowledging the nonfoundational thesis that law is a “contextualized, contingent, and constructed” activity lacking a single overarching metaprinciple (118-120).

Proponents of legal pragmatism, such as Cass Sunstein, endorse reliance on a self-sufficient legal reasoning—especially analogical reasoning—and an avoidance of “large-scale social controversies” (154). The only ideologies or values that come into play are internal to the legal establishment.  A nonfoundationalist rejects legal pragmatism because it recognizes only legal contexts and experiences rather than “the real world of historical struggle” (158).

Moreover, a “good” legal argument should be assessed on “its capacity to persuade other judges and lawyers in a particular community at a particular time rather than its analytical approximation to some logical ideal of argument” (176).

The antifoundational approach to jurisprudence, or Callicles’ “might makes right” counterpoint to Platonic idealism, measures up poorly in Hutchinson’s scrutiny because “law is a rhetorical performance that can be played in better or worse ways” (188). Rather than an exercise of raw power, a judgment should win the day “because the judge is able to persuade others that it is a reasonable interpretation and that it has earned its legitimacy through the persuasive force of its supporting arguments” (191). From the nonfoundational perspective, a judge acts “in good faith” by authoring a decision that has political and rhetorical merits, and not necessarily legal and logical values (200).

Other alternatives to a nonfoundational approach are “deep-logic” theories of law and adjudication such as feminism and Marxism. These remain merely foundational because they offer two-dimensional, totalizing accounts of jurisprudence. Hutchinson’s critiques of Catherine MacKinnon’s work (“a simple and flat meta-narrative”) (225) and the Marxist interpretation of law combine the author’s admiration for their deeply logical features with his disdain for their reliance on “some off-stage hand who controls the routines and rhythms of judicial marionettes” (250).

These rebuffs to alternative accounts, despite their orderly exposition and bristling point, erect another hurdle for Hutchinson. His refutations are thoroughly consistent with his frame of reference and his definition of terms, but playing the game by other rules might snatch victory away from the nonfoundational team. If the foundational and antifoundational approaches are not two extremes to be mediated by a nonfoundational account, then representing them as polar opposites on a linear scale would be hegemonic at best. Indeed, what if the nonfoundational approach is actually one of several strands in a web of perspectives on jurisprudence? As the author observes, both feminist and Marxist jurists are likely to prefer ideological quarters outside the foundational camp. Proponents of the other alternatives also might appreciate similarly dispersed accommodations. Hutchinson’s engaging exposition of a nonfoundational perspective suggests that he could withstand being surrounded by a diverse host of foes rather than merely playing two opposing teams against one another. Have the author’s competitive urges, otherwise well suited to game playing, hurt his chances of winning the game of law?

The final group of three chapters expounds affirmatively the nonfoundational approach. Turning aside the chief criticism of his approach, that “its deconstructive passion debilitates its reconstructive possibilities” (252), Hutchinson disdains any grand theory or sweeping solution for social ills. Local, experimental, and revisable efforts are needed. Contributing to these efforts, but not necessarily leading the way, judges should apply their “rhetorical skills and argumentative maneuvers in each individual performance .  .  .  to further better the prospects and practices of a democratic society” (261). The “game of democratic transformation” is infinite, requiring the type of judicial “vision and inventiveness” endorsed in a nonfoundational approach. In fact, adapting the formula for a “good” orator popularized by Quintilian in the first century, Hutchinson opines that “good judging is a good person deciding well” (299).  What really counts is “a decision’s social utility and a judgment’s rhetorical success” (309).

Confirming the auxiliary role of rhetoric in democratic transformation, Hutchinson identifies two more substantive remedies to be attempted. First, it is “paramount” that “elite ranks of the judicial and legal profession are opened up along more varied class, gender, racial, ethnic, sexual, and political lines”; second, “the role and representation of the jury might be greatly expanded” (314-315). Although Hutchinson observes that “there is no necessary connection between identity and interpretation” (114) (comparing United States Supreme Court justices Thurgood Marshall and Clarence Thomas) he believes that these two measures would ensure a wide experiential base for decision making in context, here and now.

And so, in the end, rhetoric occupies a traditionally instrumental role in the nonfoundational project. Quintilian’s Institutio Oratoria is the touchstone for defining a “good” judge and the need for more diversity among rhetors outstrips the potential for rhetoric itself.  By this I mean no disrespect to a professor of law whose exegesis of a nonfoundational jurisprudence should be read both by those disgruntled scholars who have not found a satisfying exposition of critical theory and by those more fully evolved scholars who have already embraced rhetoric’s transformative value in a democratic society. Rather, members of this latter class may wish to assess the type and scope of their contributions to the scholarly dialogue. Why is scholarly citation basically a one-way street leading from rhetoric to law? Professor Hutchinson did not express scholarly debt to any rhetorician other than Chaim Perelman (although citations are prominent of legal scholars who profess rhetoric secondarily). What is lacking in the goals or methods of rhetorical theorizing and criticism that makes it peripheral to legal scholars? While pondering these questions, subscribers to the Review of Communication who have not yet enjoyed It’s All in the Game should put this book near the top of their reading lists.  These readers ultimately will join those already familiar with the book in recommending it to others.