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Question: How does rhetoric critique, alter, create, or illuminate the relationship between law
and justice?
Brooke Rollins
English Department, Louisiana State University (brollins@lsu.edu).
In his discussions of the relationship between law and justice, Jacques Derrida shows us
that the two concepts, though inextricably linked, are also infinitely distanced. While justice is
incalculable, impossible, and unbounded, the law presents itself in the most precisely determined
ways: in rules, statutes, and regulations that lend themselves to highly calculated decisions.
While there is a practical finality to the law (in the sense that majority opinions are written and
verdicts are delivered), justice keeps us waiting—it never finally arrives. And while we may
hope that justice has been done, that the courts have been able to deliver it, we can never be
certain if this has been the case. These “equivocal slippages between law and justice,” as Derrida
calls them (“Force” 4), are not easy to negotiate, but neither are they reasons to opt out of ethical,
political, and legal debates. In fact, this negotiation is all the more important because “the
incalculable and giving idea of justice is always very close to the bad, even to the worst, for it
can always be reappropriated by the most perverse calculation” (28). Thus Derrida argues that
“incalculable justice requires us to calculate” (28). It is in this moment of calculation, I want to
suggest—a moment I will discuss with Derrida in terms of the decision—that rhetoric intervenes.
Because rhetoric always operates in response to a radically unknowable future, it creates an
interface between law and justice.
In part, I want to make this theoretical claim on the basis of some very practical—perhaps
obvious—reasons. Rhetoric creates an interface between law and justice because, even in its
most utilitarian and calculated guise, it takes place in the face of absolute alterity. Take, for
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example, the highly calculated rhetorical scene of a lawyer’s closing argument to the jury. I use
this example, on the one hand, because it relates to our theme, but more importantly, I think, it
presents us with a relatively closed (and thus demonstrably calculable) rhetorical situation. That
is, we have a speaker with a particular aim in mind, and we have an identifiable audience she
seeks to persuade. Even in this uniquely limited rhetorical moment, when the attorney has
carefully studied her audience and as a result of this analysis crafted for them a perfectly pitched
argument, she cannot guarantee the effects of her persuasive efforts. Once the argument has been
uttered, it is radically cut off from all of the careful audience analysis and rhetorical calibrations
that took place in advance of delivery. Reductive though it may be, this example illustrates
rhetoric’s movement toward impossible justice: Though it seeks to control and contain the
infinite array of possible audience responses by way of strategic linguistic choices, it is always
involved in a movement towards an infinite and unknowable future.
This movement also fascinated the Classical rhetorician Isocrates, who takes the very
practical idea that we cannot know the future and amplifies it, ultimately suggesting that
rhetoric’s responsive relation to alterity is a question of justice. I turn briefly to his work because
I think Isocrates makes a compelling case for rhetoric as the discipline that can help us negotiate
the distance between law and justice. The reason for this is that he insists that rhetoric must
respond to that which exceeds calculation, and he asks us to consider rhetoric as a response to the
unknowable “to come.” Because of rhetoric’s relation to otherness, then, it keeps open what
Derrida calls the “avenir for justice” (27).
Isocrates’ interest in futurity can be attributed to the forward looking nature of his
rhetorical paideia, an extensive training in philosophia that prepared students for an informed
and eloquent intervention into Athenian public life. (In addition to a series of rhetorical practices,
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Isocrates’ paideia included the study of and practice in other, unrelated subjects). Beyond the
good character he claimed to foster in the individuals who studied with him, Isocrates focused on
developing in his students the capacity to respond to situations they could not foresee. In the
Antidosis he argues that that “[i]t is not possible to learn [kairos] through study, since in all
activities, these opportune moments elude exact knowledge (epistēmē)” (Antidosis 240). What
his rhetorical paideia fosters, however, is the capacity to respond appropriately to these
unpredictable rhetorical demands.i Thus “responsibility” for Isocrates was never simply a matter
of being a good man speaking well; it was also the capacity to respond to the other.
Isocrates writes most explicitly about the radical unknowability of the future when he
works to favorably distinguish his rhetorical paideia from the more utilitarian and persuasive
pedagogies that rival teachers offered prospective students. To criticize his competitors’
pedagogical methods, Isocrates claims that:
I think it clear to all that it is not in our nature to know in advance what is going to
happen. We fall so far short of this intelligence that Homer, who enjoys the
highest reputation for wisdom, has written that the gods sometimes debate about
the future—not because he knows their thoughts but because he wants to show us
that this one thing (i.e., knowledge of the future) is impossible for human beings.
(Against 62)
This claim emerges in a section of Against the Sophists in which Isocrates takes to task some of
the lesser sophists for “persuading the young that if they study with them they will know what
they need to do and through this knowledge they will become happy” (62). Here, Isocrates
attempts to separate himself from these sophists, suggesting that only unqualified teachers would
promise that they could turn any student into a skillful and successful orator. (Isocrates, of
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course, made it well known that he refused those students he felt could not benefit from his
training.) More important for us, however, is that Isocrates criticized these teachers not only for
being indiscriminate, but also for describing in advance a future they could not know. That is,
these teachers claimed too soon that the young would be happy for having studied with them.
This suggests that their pedagogical claims flew in the face of Homer’s wisdom about human
nature: The sophists ignored the idea that we cannot “know in advance what is going to happen”
(62).
And yet Isocrates pushes beyond this practical quibble as he insists on the radical nature
of the future’s otherness. That is, Isocrates’ problem with the teachers he criticizes here is less
that they make promises about the future than it is that their pedagogical methods are not open to
its radical incalculability. His concern is that they provide their students with pre-determined
rhetorical programs for attending to this future. From Isocrates’ perspective, the problem with
offering students a method or “knowledge” that will tell them “what they need to do” removes
rhetoric from a responsive milieu and posits it as a pre-existing program of action residing above
specific events and situations. Rather than training students to respond appropriately to situations
they cannot foresee, the application of a program simply requires that they routinely apply one
general rule to every possible circumstance. From Derrida’s point of view, this rhetorical
pedagogy turns those who undertake into “calculating machine[s]” (23). And, according to
Derrida, such calculation closes off the possibility of justice: “[I]f the act simply consists of
applying a rule, of enacting a program or effecting a calculation, we might say that it is legal, that
it conforms to law, […] but we would be wrong to say that the decision was just” (23).
It is the incalculability of justice that makes responding so important, for Isocrates and
for Derrida. Just because the kairotic future is incalculable (insofar as no one can know in
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advance of the situation which approach will have been the best response), Isocrates does not
advise his students to proceed rashly or without concern for the details that define their
situations. Indeed, his training is meant to condition students to make the best choices from their
available array of rhetorical and civic options and to be quick and perceptive once they have
entered into these unfamiliar milieus. He explains as much in the Antidosis:
Since human nature cannot attain knowledge that would enable us to know what
we must say or do, after this I think that the wise (sophoi) are those who have the
ability to reach the best opinions (doxai) most of the time, and philosophers are
those who spend time acquiring such intelligence as quickly as possible. (254)
Even as the “opportune moments [of kairos] elude exact knowledge,” Isocrates insists on trying
to figure out how best to respond, and this is the case despite the fact that it is impossible to
know what will have been the best approach to any given situation (240). It is precisely because
he does not offer up a repeatable method for rhetorical action that Isocrates encourages this
attentiveness. If the future is utterly incalculable as Isocrates suggests, then his students must be
as attentive as possible to the circumstances they encounter in the very moment of encounter.
(There would be no such need for this attention to the situation if one were able to rely strictly on
a set rhetorical program.) It is in this way that Isocrates’ rhetorical training requires a
responsibility to the unknowable “to come.”
This responsibility for (and to) the unknowable future constitutes an action that Derrida
has discussed in terms of the decision, to which he refers when he argues that the incalculability
of justice demands that we calculate. The decision is a question of justice in the sense that it is
not the execution of an established program:
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[F]or a decision to be just and responsible, it must, in its proper moment if there is
one, be both regulated and without regulation: it must conserve the law and also
destroy it or suspend it enough to have to reinvent it in each case, rejustify it, at
least reinvent it in the reaffirmation and the new and free confirmation of a
principle. (“Force” 23)
What Derrida and Isocrates share in this regard is an insistence on the absolute necessity of
decision as the encounter with absolute, unrepresentable alterity. Thus the decision tests the
limits of the legal order because it cannot be the application of the law to a particular case. As
Derrida argues, “Each case is other, each decision is different and […] no existing, coded rule
can or ought to guarantee it absolutely” (23). Even though we cannot know in advance what the
best course of action is, we must still make choices; we must still make decisions about how to
proceed without simply upholding the rule of law. In the same way that Isocrates’ rhetorical
paideia requires response, Derrida argues that even though we cannot know what is to come, we
must nonetheless act.
For Isocrates, the incalculability of the future means that rhetoricians must “spend time
acquiring intelligence as quickly as possible” by attending carefully to their individual situations.
Derrida, too, argues that prior to the decision, one must accumulate knowledge and intelligence.
Because there is no single program that can help one make a decision about the unknowable
future, the individual circumstances of each event must always be closely considered. And what
is crucial about the subject’s entrance into the unknowable future for Derrida is precisely
Isocrates’ point about kairos: The decision must be entirely heterogeneous to knowledge. Indeed,
for a decision to take place, there must be a radical break from the intelligence gathering that
seems to lead up to it. All of the information and consideration leading up to the decision must be
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of an entirely different order than the decision itself. Derrida describes this seemingly
paradoxical idea in a 1993 interview with Richard Beardsworth:
One must know as much as possible, one must deliberate, reflect, let things
mature. But, however long this process lasts, however careful one is in the
theoretical preparation of the decision, the instant of decision, if there is to be a
decision, must be heterogeneous to this accumulation of knowledge. Otherwise
there is no responsibility. (“Nietzsche” 231)
Because the decision is radically severed from knowledge in this way, we are not only
unable to determine in advance precisely how to proceed, but we are also unable to know after
the fact if our decision has been the right one. Even after we have acted, we cannot know if it
was indeed the right moment to have intervened. Why? Because the very structure of decision
exceeds the horizon of knowledge. Therefore, according to Derrida:
One can never know if one has been responsible or not, one cannot have a good
conscience: ‘I made the right decision,’ ‘I fulfilled my responsibilities,’ ‘My debts
are paid’ […] and so on—all such statements are contrary to the essence of
responsibility as well as to the essence of the decision. (232)
What is at stake in this understanding of the decision as “heterogeneous to knowledge as
such” is a commitment to responsibility over programmatic applications. The decision is a
response to the unknowable future (we could also understand this unknowable future as the
other) in the very moment of the encounter. If we were able to apply a program—something that
would tell us how to act in every case—we would not be relating or attending to the particulars
of the situation. We would simply be “applying a particular causality” or implementing a predetermined and repeatable set of instructions that could not account for the unique qualities of
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each individual event (231). In this sense, the application of a rule is un-responsive; indeed, it is,
in the sense of the structural definition above, irresponsible. This is why Derrida insists that “[i]f
one anticipates the future by predetermining the instant of decision, then one closes it off, just as
one closes it off if there is no anticipation, no knowledge ‘prior’ to the decision” (231).
For our purposes, what is interesting about revisiting Isocrates’ account of rhetoric with
Derrida’s discussion of the decision in mind is that it shows us how rhetoric leaves open the
possibility of justice (which is also the impossibility of justice). Isocrates is particularly
interesting because he goes out of his way to insist on the radical otherness of the future and to
posit rhetoric as the discipline that gives this unknowable future its chance. If we accept that
nearly all rhetorical acts take place in the face of this alterity (considering the example of the
closing argument above), then rhetoric gives justice a chance. Because of its structural reliance
on the unknowable future—absolute alterity—rhetoric takes place in the negotiation between
calculable law and incalculable justice. Thinking about justice, law, and rhetoric in terms of our
conference theme, “Rhetorical Questions,” I might ultimately suggest this connection: If rhetoric
takes place in the face of unrepresentable otherness, we might understand it as responding to a
question in which the answer is not—indeed, must not—be assumed in advance.
Works Cited
Derrida, Jacques. “Force of Law: The ‘Mystical Foundation of Authority.’” Deconstruction and
the Possibility of Justice. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson,
eds. New York: Routledge, 1992, 3-67.
Derrida, Jacques. “Nietzsche and the Machine.” Negotiations: Interventions and Interviews,
1971-2001. Ed., Trans. Elizabeth Rottenberg. Stanford: Stanford UP, 2002. 215-256.
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Isocrates. “Antidosis.” Isocrates I. Trans. David C. Mirhady and Yun Lee Too. Austin: U of
Texas P, 2000, 201-264.
Isocrates. “Against the Sophists.” Isocrates I. Trans. David C. Mirhady and Yun Lee Too. Austin:
U of Texas P, 2000. 61-66.
In the Antidosis, Isocrates argues that his rhetorical paideia makes his students “accustomed to hard work, and then
force[s] them to synthesize everything they have learned in order that they may have a more secure understanding
and their views may be better adapted to the right moments (kairoi)” (239-240).
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