In law as rhetoric and rhetoric as law, James White contends that law can be seen as a

“Constitutive rhetoric” where the person speaks the language of the law in terms of rules,
cases and statutes, rearrange and modifying it to suit the need of his client, and doing these in
a specific social and cultural context. However, while in the process of Rhetoric the lawyer is
a participant in the perpetual remaking of the language and culture that determines who he is
and who we are. Thus, there are total of three elements in the law.
This at the outset would make White stand against Hart when he the latter says the
institutionalized legal system can solve almost all cases in its own and there need not be any
value that one needs to look at beyond what the law is. According to White, this would only
be the first element or at most the first two elements of what law is. Hence, White would
reject the distinction between core and penumbra.
Secondly, to the extent that White opposes Hart, he would be sharing the title of Rule
Sceptics with Lon fuller in that Fuller too opposes that the first element of rules statutes and
case laws constitution etc alone can solve the problem. However, while White agrees there
are things more than the legal statutes, cases and constitution etc. he doesn’t say that cultural
aspects of law as a rhetoric is oriented towards something that is good. In other words, though
he says cultural aspects mattered, he didn’t say that it always be constituted towards what is
considered morally good and not morally evil. Hence, White would have agreed that Nazi
law is still a law and Nazi legal system is still a legal system. Or atleast, he didn’t disagree in
his paper.
Similarly, he would agree with Zimmerman when he says that we interpret something based
on our cultural context. Zimmerman also says our consciousness which is used in
interpretation is also shaped from the outside. The truth that we arrive at is because the
language AND culture deliver the same to us. Zimmerman says mind is not a tabula Rasa and
we cannot have disengaged reasoning. Hence, in all these aspects White would agree with
Zimmerman.
Zimmerman says there is a principle of integrity by which the judge has to look law as a
whole and then judge has to decide a case. He can’t do it as per his whims and fancies.
Schauer takes to a further extent and gives a lot of value to the generality of law in forming a
precedent and in not having an all-things-considered approach in legal reasoning. White
therefore is more flexible than Schauer in what seems to be a legal reasoning when he says
you can work through the language of law to fulfill your client’s needs questioning its
coherence with other forms of that language as well as external factors.
Coming to White we say he does place emphasis on the language of the law. He says if you
are a lawyer talking to the court you have to use your inherited language and therefore, he
certainly makes a divide between law, politics and personal opinion. A lawyer has to use the
language of law in his discourse and therefore in both using and modifying it, the lawyer is
bound by the language of the law. He can’t just argue in plain English and evoke emotions
and get a judgement in his favour. A personal opinion need not be in the language of law but
law as constitutive rhetoric has to be. Politicians similarly need not use the language of the
law. Therefore, he doesn’t seem to a Radical Sceptic since he doesn’t disregard the value of
words and language. He acknowledges its importance and says that one needs to work with it
but not totally disregard it
To certain extend White’s position confirms my experience of learning law in law school be
it through projects, exams, moots and internships. There are certain aspects such as family
law and constitutional law where White’s description of law clearly fits. Let’s take the
proposition on decriminalization of Homosexuality in Navtej Singh Johar v Union of India.
In this case we could see the judges and lawyers worked through different laws be it Section
377, Article 21 and Article 14 of the Constitution to hold that Section 377 is unconstitutional.
If one can go through the various arguments and material that court went through in this
judgement, it would be no surprise that court also looked at materials of biology, religion and
philosophy. Nevertheless, the arguments before the court were grounded in law and the
change brought in the society and change brought in law was through the usage of legal
language.