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What is "law as rhetoric?" How does it apply to a state's management of monopoly?

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The idea of law as rhetoric was described by J.B. White in an article published in the University of Chicago Law Review in 1985. Instead of viewing law is a set of rules, as it is most commonly viewed by philosophers and academic scholars, White proposes that we view law as a branch of rhetoric. According to Plato, the ancient rhetorician Gorgias defined rhetoric “the art of persuading people about matters of justice and injustice in the public places of the state.”

White believed that law cannot be objectified or abstracted, because the acceptance of any law is subjective, based on the views of the audience, or the persons...

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Law as rhetoric is a popular idea that focuses on law's persuasive character. Both legal scholars and rhetorical studies scholars have addressed these issues in books, academic articles, and the blogosphere. Scholars think about law as rhetoric, that is as a persuasive activity that does not conform to the more strict standards of formal logic. Scholars have also written extensively about the way that rhetoric informs law. Remember, the beginnings of rhetoric are in Greek land disputes. Disputants needed someone well-versed in persuasion to help argue their case, and it is at this point that classical rhetoric gets started with Aristotle and others. Scholars of law and rhetoric also think about law as persuasion and as constitutive of identities, which is one way to think about what is called "constitutive rhetoric."

Scholars also think about the construction of judicial opinions, the writing of laws, and the policy statements made by law makers as rhetorical because they are attempts at persuasion and generative of action.

There are a couple ways to think about state management of monopolies and law as rhetoric. Keep in mind that law as rhetoric is used as a lens to understand law across legal disciplines (tort, criminal law, family law, civil procedure, and more). One might think about what a state's management of monopolies means about a state's ability to control the economy. Put another way, one might also think about the way controls on monopolies expand state power and create the image of the state or its officials as anti-free market or as a necessary protection against certain economic practices. That is, laws send messages and those messages are crafted to give officials and states certain personas (tough on crime, supportive of diversity, welcoming, etc.). This is law as rhetoric in practice. We use law to persuade and construct identities. Scholars have written much about this as well.