Law as Conflict: The Constitutive Rhetoric of the American Legal System

• In Event: The Founders' Evolving Constitution

Abstract

Rhetoric scholars have long recognized that language has constitutive effects—that the words and metaphors we use shape the way we experience phenomena and understand our world. In law, those words and metaphors are often adversarial. The American legal system resolves “disputes” and “conflicts” between “winners” and “losers.” In fact, as a matter of constitutional law, adversativeness is actually required, because the federal judicial power only extends to “cases and controversies” between adverse litigants. In this paper, I explore the constitutive effects of these adversarial rhetorical framings. I contemplate how the adversarial language that characterizes American law might shape participants’ experience of the American legal system. I also consider how an alternate rhetorical framing—one that emphasizes cooperation or problem-solving, rather than zero-sum conflicts—might change the tenor of American law.

Author

• Lucy Williams, Brigham Young University Law School