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Terms of Use, Privacy Policy, and Acceptable Use Policy: What are the Differences?

In Communication, Information Design, Law, Property, Rhetoric & Communication on January 8, 2014 at 8:45 am

Allen 2

“Terms of use,” also called “terms of service,” are agreements between website owners and users of the website.  By consenting to the “terms of use,” a user manifests his or her assent to certain conditions in order to access the website; in some cases, accessing a website will itself constitute acquiescence to the restrictions and conditions explained in the “terms of use.” “Terms of use” may explain what will happen to someone who hacks into the website, may divest users of certain legal rights as a condition for use, or may detail the consequences of behaving or transacting in certain ways on the website. Social networks such as Facebook are notorious for frequently modifying their “terms of use,” and “terms of use” are often subject to criticism for their allegedly unfair contracting and bargaining practices and for concealing or obscuring information in shrinkwraps, browsewraps, and clickwraps.

A privacy policy is a disclosure regarding the information a website collects and how that information is used by the website owner.  Not all websites have privacy policies, but privacy policies are required of websites directed at children.  Websites containing health data for patients or banking and financial data for customers are also required to have and display privacy policies.  A privacy policy discloses what personal information is gathered by the website and states whether, for instance, a website uses cookies or targeted advertising, and whether the data collected by the website is shared with third parties.

Unlike “terms of use” or privacy policies, acceptable use policies generally are between employers and employees and govern the ways in which employees and other authorized users handle websites or networks of the employer.  The laws governing acceptable use policies are strict. For instance, acceptable use policies must be clear and made known to employees; they must also explain what sanctions are appropriate or applicable if the acceptable use policy is violated.

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Book Note: Machinic Modernism, by Beatrice Monaco

In Arts & Letters, Book Reviews, Fiction, Humanities, Literary Theory & Criticism, Literature, Modernism, Philosophy, Pragmatism, Rhetoric, Rhetoric & Communication, Western Philosophy, Writing on September 20, 2012 at 8:45 am

Allen Mendenhall

The following excerpt first appeared as part of the Routledge Annotated Bibliography of English Studies series.

Machinic Modernism: The Deleuzian Literary Machines of Woolf, Lawrence and Joyce

This book investigates several modernist novels in light of the theories of Gilles Deleuze and, to a slightly lesser degree, Felix Guattari.  The author is interested in how the “machine-like” work and style of Deleuze and Guattari facilitate pragmatic readings of texts.  These pragmatic readings suggest that textual activity in several modernist novels reflects broader cultural activities, that the metaphysical movement of text corresponds to various social movements, and that text reproduces historical circumstances in signs and syntax.

The book seeks to depart from conventional forms of scholarship and to resist Deleuze-Guattarian paradigms that overemphasize pragmatism and empiricism at the expense of radical innovation.  In a way this book is a Deleuze-Guattarian treatment of Deleuze and Guattarian with a focus on key modernist novels such as Virginia Woolf’s To the Lighthouse, D.H. Lawrence’s The Rainbow, and James Joyce’s Ulysses.  Just as Deleuze and Guattari reframe seminal issues of philosophy in terms of pragmatism, so these modernist novels negotiate cultural and discursive phenomena with a bearing on then-current philosophy.

This book seeks to build a critical “machine” with which to interpret the machine in texts as well as to negotiate the so-called machine age; it also interrogates the organic-mechanic duality already interrogated by Deleuze.  In so doing, it considers differences in literature in light of Deleuzian pragmatics to show that the philosophical moves taking place in Deleuze reflect similar moves taking place in modernist literature generally.  The book argues that To the Lighthouse and The Rainbow implicate metaphysical structures in interesting ways but also in ways that are not entirely satisfactory without an understanding of Ulysses.  In Ulysses the theories and mechanic imperatives of Deleuzian modernism find their fullest expression.

Kenneth Burke’s Constitution: In Brief

In Arts & Letters, Communication, Humanities, Information Design, Literary Theory & Criticism, Philosophy, Rhetoric, Rhetoric & Communication, Semiotics, Western Philosophy on August 8, 2012 at 8:45 am

Allen Mendenhall

Kenneth Burke treats the constitution—or, in some cases, constitutions—as a dialectic, symbolic act that is representative of the tendencies and preferences of communities.  Burke applies the elements of the pentad—act, agency, agent, scene, and purpose—to form what he calls paradigmatic anecdotes for understanding how constitutions apply to and interact with communities.  The pentad, for Burke, is equipment for simplifying complex ideas into understandable categories or anecdotes.  It provides, in that sense, what he calls an “idiom of reduction” for understanding human motives.

Humans are sign-using creatures motivated by different “grammars,” and it is a grammatical move to interpret human action in terms of the pentad.   A constitution is not simply a tangible document—indeed, as Burke points out, there is no written constitution in Britain—but instead represents a symbol of the coordination of individuals that provides them with a calculus for determining not only how to act, but also how to know what motivates action.

Constitutions put forth general types, or principles, that can be considered ideals, and these types, principles, or ideals provide standards or criteria by which individuals in a community aspire to act.  A constitution is therefore more of a symbol of that which coordinates human behavior within a given community than it is a top-down imposition of legislative fiat.  A constitution, in short, is a communicative sign validated and made useful by its ability to induce cooperation among people.

A Tale of the Rise of Law (Part One of Two)

In Arts & Letters, Britain, Christianity, Fiction, Historicism, History, Humanities, Imagination, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Politics, Rhetoric, Rhetoric & Communication, Western Civilization on March 9, 2012 at 10:09 pm

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

Geoffrey of Monmouth’s The History of the Kings of Britain is a tale of the rise of law that suggests that there can be no Britain without law – indeed, that Britain, like all nation-state constructs, was law or at least a complex network of interrelated processes and procedures that we might call law. During an age with multiple sources of legal authority in Britain, The History treats law as sovereign unto itself in order to create a narrative of order and stability.1 This article examines the way Geoffrey establishes the primacy of law by using the language-based, utilitarian methodologies of John Austin, who treats law as an expression of a command issued by a sovereign and followed by a polis, and whose jurisprudence enables twenty-first-century readers to understand Geoffrey’s narrative as a response to monarchical succession and emerging common law. The first section of this article briefly explains Austin’s jurisprudence and provides historical context for The History. The second section considers The History in terms of uniform and rational justice in the twelfth century, situating Geoffrey’s jurisprudence alongside that of Ranulf de Glanvill and analyzing the complex relationships between sovereignty, law, polis and nation state.

 The Jurisprudence of John Austin

Austin treats law as an expression of will that something be done or not done, coupled with the power to punish those who do not comply: “A command […] is a signification of desire […] distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he not comply with the desire” (Province 6).  Accordingly, law is a command that carries the power of sanction. Austin, who writes in the nineteenth century, is in many ways different from the twelfth-century Geoffrey. Whereas Geoffrey employs fiction to instruct his contemporaries in the official narrative of incipient nationalism, Austin proclaims that many “of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason” (Province 58). Austin adds that these legal and moral rules “have been taken from preceding generations without examination, and are deeply tinctured with barbarity,” and also that these takings are particularly harmful because the rules “arose in early ages” during “the infancy of the human mind” when people ruled based on “the caprices of fancy” (Province 58). Because The History is more mythology than fact, Austin probably would have accused Geoffrey of perpetuating “obstacles to the diffusion of ethical truth” and of “monstrous or crude productions of childish and imbecile intellect” that nonetheless “have been cherished […] through ages of advancing knowledge” (Province 58). Austin, in short, was skeptical of mythology and claims about absolute law, whereas Geoffrey embraced mythology and implied that law was a constant corrective.

Despite this disjuncture, or perhaps because of it, Austin’s theories provide an illuminating framework in which to consider The History. Austin’s proposition that laws are commands backed with the power to sanction stands in contradistinction to Geoffrey’s suggestion that law emerged out of an ancient precedent and achieved its fullest expression under the great King Arthur. The conception of law as merely language reinforced by the possibility of physical threat undercuts the idea that law is based in first principles discovered by the fathers of civilization. Austin’s proposition – that customary laws carry no threat of punishment and therefore are not laws at all unless a sovereign, who can punish, declares them to be laws – also contradicts Geoffrey’s suggestion that law is embedded in custom and represents a point of authority from which kings may or may not deviate. Finally, Austin’s proposition that “every law which obtains in all societies, is made by sovereign legislators” (Lectures 566), even if such law derives its lexicon from divine inspiration or religious texts, weakens Geoffrey’s suggestion that law is relatively fixed in custom and tradition despite the whims and fancies of a given age. To employ Austin’s jurisprudence is not to privilege Austin’s reading over Geoffrey’s or Geoffrey’s reading over Austin’s but to treat Austin as a lens through which to examine how Geoffrey navigates the legal terrain of his day and negotiates conflicts about law and monarchy that unsettled the harmony of the burgeoning state. Geoffrey uses myth both to validate law and British unity and to reassure the anxious polis of law’s ultimate supremacy over temporary ideological disruptions. He establishes models of behavior for both monarchs and the polis. Read the rest of this entry »

How I Taught Sustainability

In Arts & Letters, Communication, Emerson, Fiction, Humanities, Literature, Nineteenth-Century America, Pedagogy, Rhetoric, Rhetoric & Communication, Teaching, Writing on January 9, 2012 at 1:12 am

Allen Mendenhall

Last spring I learned that I had been assigned to teach a freshman writing course on sustainability.  I don’t know much about sustainability, at least not in the currently popular sense of that term, and for many other reasons I was not thrilled about having to teach this course.  So I decided to put a spin on the subject.  What follows is an abridged version of my syllabus.  I owe more than a little gratitude to John Hasnas for the sections called “The Classroom Experience,” “Present and Prepared Policy,” and “Ground Rules for Discussion.”  He created these policies, and, with a few exceptions, the language from these policies is taken from a syllabus he provided during a workshop at a July 2011 Institute for Humane Studies conference on teaching and pedagogy.

Sustainability and American Communities

What is sustainability?  You have registered for this course about sustainability, so presumably you have some notion of what sustainability means.  The Oxford English Dictionary treats “sustainability” as a derivative of “sustainable,” which is defined as

  1. Capable of being borne or endured; supportable, bearable.
  2. Capable of being upheld or defended; maintainable.
  3. Capable of being maintained at a certain rate or level.

Recently, though, sustainability has become associated with ecology and the environment.  The OED dates this development as beginning in 1980 and trending during the 1990s.  The OED also defines “sustainability” in the ecological context as follows: “Of, relating to, or designating forms of human economic activity and culture that do not lead to environmental degradation, esp. avoiding the long-term depletion of natural resources.”  With this definition in mind, we will examine landmark American authors and texts and discuss their relationship to sustainability.  You will read William Bartram, Thomas Jefferson, Emerson, Thoreau, Hawthorne, Whitman, Mark Twain, and others.  Our readings will address nature, community, place, stewardship, husbandry, and other concepts related to sustainability.  By the end of the course, you will have refined your understanding of sustainability through the study of literary texts. 

Course Objectives

I have designed this course to help you improve your reading, writing, and thinking skills.  In this course, you will learn to write prose for general, academic, and professional audiences.  ENGL 1120 is a writing course, not a lecture course.  Plan to work on your writing every night.  You will have writing assignments every week. Read the rest of this entry »

Review of Forensic Fictions by Jay Watson

In Arts & Letters, Book Reviews, Fiction, Georgia, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Novels, Rhetoric, Rhetoric & Communication, Southern History, Southern Literary Review, The South, Writing on December 5, 2011 at 10:56 pm

Allen Mendenhall

The following review originally appeared here at the Southern Literary Review.  If you enjoy this review, please consider subscribing to the Southern Literary Review.  I became the managing editor of the Southern Literary Review in November.

 

Kudos to the University of Georgia Press for this recent reprint of Jay Watson’s Forensic Fictions, which has become something of a classic among law-and-literature scholars.  A pioneering project, Forensic Fictions stands as the first critical work to interrogate the lawyer figure in Faulkner’s oeuvre.

Watson submits that law is vast and multidimensional, “at once a deeply normative cultural system, a vehicle of ideology (in its constructive and destructive manifestations), a force of social stability and control, an entrenched and often blindly self-interested institution, and not least of all a human vocation, a form of practice that in some instances achieves the status of a calling.” 

In Faulkner’s fiction, law helps to highlight the complexity, sometimes liberating and sometimes disorienting, of the “everyday” aspects of Southern culture, institutions, and traditions.  Law is more than bills, statutes, judge-made opinions, codes, and the like.  Law isn’t a monolithic animal but a multiplicity of people and institutions; a product of self-serving performances by lawyers, judges, and politicians; and an accumulation of arguments couched in topoi of guilt and innocence, right and wrong, justice and equality.  Law is, simply put, a network of human relations and a collection of stories. 

Watson’s book examines how lawyers and laws constitute and presuppose authority in the microcosm of Yoknapatawpha.  “Lawyers of course advocate by narrating,” Watson explains, “by telling their clients’ stories in the language of the law.”  Lawyers, then, are raconteurs, and laws are products of language, even as they institute language.

Watson suggests that Faulkner internalized the “conspicuous and complicated presence” of real-life lawyers—Dean R.J. Farley, Governor Lee M. Russell, General James Stone, Ben Wasson, Jim Kyle Hudson, and Lucy Somerville Howorth, to name just a few—and then expressed mixed feelings about lawyers and the legal community in his writings.  Although not a lawyer himself, Faulkner could boast of a legal pedigree, having been born into a family and a society overflowing with attorneys.  Faulkner’s multifaceted and often contradictory ideas about law reflect these cultural associations.

Watson uses the term “forensic fictions” to refer to Faulkner’s depictions “of the legal vocation and the practice of law, a practice that extends from the official space of the courtroom and the professional space of the law office to the farthest reaches of the community.”  Thus conceived, law is not only a communicative vehicle but also a way of life, as mundane as it is exciting. 

Watson works out of the paradigms of forensic discourse.  He treats law as a theater of differences and disparate perspectives and as a vast system of interrelated parts.  An “important subtext” for Faulkner’s forensic fictions, according to Watson, “is the conviction that the values and concerns of the storyteller can and must carry over from a limited, private, aesthetic realm into a public world outside, where verbal creations can reinforce, challenge, or otherwise inform social norms.”

Three novels—Intruder in the Dust, Knight’s Gambit, and Requiem for a Nun—make up what Watson dubs Faulkner’s “forensic trilogy.”  These novels portray the lawyer as citizen-spokesperson, able to appropriate the public sphere as a space for social celebration or critique. Read the rest of this entry »

Teaching Style

In Arts & Letters, Communication, Pedagogy, Rhetoric, Rhetoric & Communication, Teaching, Writing on November 16, 2011 at 10:13 am

Allen Mendenhall

In his essay “Teaching Style: A Possible Anatomy,” Winston Weathers mentions a “definite exercise system” whereby students learn to mimic stylistic writing models.  This exercise recalls writing emulation activities that were popular in late 19th and early 20th century America.  Recently, I have conducted some “emulation exercises” in my classes. 

I had students compare Natalia Ginsburg’s “He and I” with the draft of an essay by Michael Blumenthal (whom I met during law school and who was kind enough to show my students what a professional writer’s “rough” draft looks like).  Then the students undertook an exercise.  They picked out their favorite sentences, which were mostly the sentences they thought were the most “stylistic.”  The students wrote these sentences on the board.  They erased all the words in the sentence so that only punctuation remained.  Finally, they inserted their own words where the authors’ had been, maintaining the integrity of the sentence structure (i.e., the punctuation) but conveying an entirely different message.  After doing this with several sentences, my students, some of them at least, began to see how professional authors use colons, dashes, and semi-colons.  They began to see how professional authors use different styles.  I believe they also learned ways to experiment with syntax. 

To employ Weathers’s wording, I hope the students learned “(1) how to recognize stylistic material, (2) how to transfer this stylistic material and make it a part of compositional technique, (3) how to combine stylistic materials into particular stylistic modes, and (4) how to adapt particular stylistic modes to particular rhetorical situations” (369).  I’m not sure my exercise provided much guidance as to # 4, but it seemed to teach the lessons of # 1, # 2, and # 3. 

Since I gave this exercise, I’ve noticed one sign of improvement among my students:  they have become better readers.  They know, for instance, what style they like.  Some students preferred Ginsburg’s style to Blumenthal’s, and vice versa.  At first, they weren’t sure why, but after the exercise, they slowly gained a sense of why they liked one more than the other.  One student claimed that Ginsburg’s piece was a faster read because it had fewer commas.  This student preferred short, matter-of-fact sentences with a quick rhythm.  I don’t think he realized this preference until he did the exercise.  I later gave this student a Hemingway passage and asked, “Is this the style you like?”  The student said that, indeed, this was the style he liked, and also that he was afraid that my reading assignments were encouraging students to write sentences in a New Yorker style: long, meandering, and comma-heavy.  This last comment was interesting on many levels.

Writing instructors ought to teach or at least encourage style. 

Style is important; style can be cultivated.

 

For further reading, see Winston Weathers, “Teaching Style: A Possible Anatomy,” in The Writing Teacher’s Sourcebook, Fourth Edition.  Edited by Edward P. J. Corbett, Nancy Meyers and Gary Tate (Oxford University Press, 1999).

Habermas for Law Professors

In Art, Arts & Letters, Communication, Creativity, Essays, Ethics, Habermas, Humanities, Information Design, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Pragmatism, Rhetoric, Rhetoric & Communication, Teaching, Western Civilization, Western Philosophy, Writing on November 4, 2011 at 3:12 pm

Allen Mendenhall

This post is an adaptation of this printable, PDF document

This post is intended to assist law professors who wish to incorporate critical theory (in general) and Habermas (in particular) into their teaching.  This post addresses just one essay by Habermas that is representative of his thought.  It does not address other important areas of Habermasian theory such as the “public sphere” (a concept that the essay nevertheless implicates). 

This post should provide some basic insights into Habermas that could be incorporated into a law school classroom.  Contracts in particular would benefit from Habermasian analyses, which could just as constructively be applied to torts, evidence, constitutional law, or any course dealing with litigation and the courtroom.  This post provides basic information.  It does not tell law professors how to use the information.  The use will require creativity. 

 

Fundamental to the paradigm of mutual understanding is … the performative attitude of participants in interaction, who coordinate their plans for action by coming to an understanding about something in the world.  When ego carries out a speech act and alter takes up a position with regard to it, the two parties enter into an interpersonal relationship.  The latter is structured by the system of reciprocally interlocked perspectives among speakers, hearers, and non-participants who happen to be present at the time. 

        —Jürgen Habermas, “An Alternative Way Out of the Philosophy of the Subject”[1]

In a way, “An Alternative Way Out of the Philosophy of the Subject” is a response to Foucault’s theories of subjectivity that treat subjects as produced by forces of power.  Habermas seems to consider Foucault’s theories as so preoccupied with knowledge formation and structural preconditions for knowledge formation that they (the theories) become pseudoscience abstracted from practical realities.  A Foucaultian paradigm centers on subjectivity trained by mechanical forces whereas a Habermasian paradigm explores communicative reason in the context of discourse enabled by the ideations of individual subjects articulating their positions to one another in mutually intelligible utterances.       

Contra Foucault, Habermas submits that reason—articulated, assimilated, and mediated by language—must be understood as social.  For social interaction to be meaningful, its interlocutors must believe that their articulations are objectively “true” or sincere (I place “true” in quotations because the “pragmatically expanded theory of meaning overcomes [the] fixation on the fact-mirroring function of language”).  Speech must be governed by points of common understanding.  These points are reached when “ego carries out a speech act and alter takes up a position with regard to it.”  Ego, here, refers to a person’s conscious awareness that is capable of being conveyed in speech.  “Alter” does not refer to alter ego, but to some agent outside the subjective world of cognition, intention, and belief.  This “alter” is part of the external or objective world to which the ego can articulate feelings or thoughts, provided that ego and alter have in common a familiar discursive space (a lifeworld) for their subjective expressions.  By this reading, alter has an ego, and ego can be an alter.  The terms simply depend upon which subject is articulating his position in a given speech situation; the terms are merely descriptive.  

To claim that we can comprehend events or things in the world is to suggest that we can speak about them.  To speak about events or things in the world is to convey information about them from one party to another using shared vocabularies governed by rules that the parties accept unconditionally. The interpersonal relationship among or between parties, as Habermas suggests, is “structured by the system of reciprocally interlocked perspectives.”  The study of this relationship brings Habermas further away from the Foucaultian paradigms of subjectivity and towards the paradigm of mutual understanding that has come to mark Habermasian thought.  Read the rest of this entry »

Teaching Audience

In Arts & Letters, Communication, Pedagogy, Rhetoric, Rhetoric & Communication, Teaching, Writing on October 21, 2011 at 12:04 pm

Allen Mendenhall

The following post comes from a journal entry I wrote to myself in the fall of 2010.  The post addresses the importance of audience to writing, and more specifically to the teaching of writing.  Other posts on this site have addressed this topic: see here, here, here, here, and here

I’m sitting here at a small wooden desk in my hotel in Destin, Florida, beneath a window that overlooks crowded parking lots, ivy-lined tennis courts, swaying palm trees, and beyond all these, white sand and an emerald-blue ocean.  I haven’t shaved all weekend.  I’m slightly sunburned.  I feel refreshed, except that Giuliana keeps insisting I get a haircut before I head back to Auburn and she to Atlanta.  Instead of walking the beach with her, I’m reading The History of the Kings of Britain and considering what I’ll teach my college freshmen this week. 

I’ve skimmed my syllabus and revisited each underlined phrase and barely legible marginalia from my teaching notes, and now I’m considering a line by Douglas B. Park.  It says, “Locating and discussing the audience for a given piece of prose can be frustrating.” 

Indeed it can.  Just this week I gave my students an assignment that I hoped would teach a thing or two about audience.  I handed out two pieces of paper on which I had copied and pasted three articles about Cancun, Mexico.

I had drawn the first article from the website of a tourist agency, the second from a newspaper, and the third from a literary journal.  I asked my students the same question that Park posed to his students: “Who or what. . . is the audience for this piece?”   

My students replied that tourists—surprise, surprise!—were the targeted audience for article one (perhaps “brochure” is a better term than “article”).  But they couldn’t name the audience for the second and third articles.  They responded with things like “the general public” or “the average reader,” categories so broad as to lack any clear referent.  So I tried, without really knowing what I was doing, asking something like Park’s next question: “How does audience manifest itself to writers writing?”   

I think I put the question more simply: “What’s the point of each piece?”

Perhaps stuck on the first brochure, my students answered, “To persuade you to go to Cancun.” 

I was making progress, but not enough. 

“How,” I asked, “does the article accomplish that?”

One student said, “By bolding words like ‘vacation,’ ‘beach,’ and ‘fun.’”

“What could make this article more effective?” I said.

One student, in so many words, said, “More adjectives.  Some pictures.  Maybe a story or two.” 

The students seemed to “get” article one.  But articles two and three were harder to pin down.  When I repeated my question—“Who is the audience for this piece?”—the students said something like “smart people.” 

Not until this weekend did I realize why my exercise failed.  The failure had something to do with Park’s claim that in the “case of unstructured situations where we would call the audience ‘general,’ where no simple, concrete identifications of audience are possible, the whole concept [of audience] becomes much more elusive.”

Articles two and three were elusive.  Or maybe my exercise for articles two and three was elusive because it created an unstructured situation. 

What documents could I have used to show how different kinds of writings signal different audiences? 

One problem with my activity was that even I couldn’t determine the intended audience for articles two and three.  Presumably there were several audiences.  The point of advertising, after all, is to appeal to as many audiences as possible.     

To satisfy my students, I lumped together articles two and three and said something like, “Now you see how a persuasive piece is different from leisure reading or newspaper reading.” 

That was that.  My activity failed.  I learned, however, about what Park calls the “elusiveness of audience in written discourse.”  I learned that I needed a better exercise to show my students how to anticipate their audiences.  Read the rest of this entry »

Lyotard’s “Differend” and Torts

In Arts & Letters, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Western Philosophy on October 13, 2011 at 12:53 pm

Allen Mendenhall

 

“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim.  If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9).  A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”

                             —Jean-François Lyotard, from “The Differend”

Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation.  The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him.  He is therefore a victim.  If the plaintiff has no voice, he has no remedies because he cannot prove damages.  Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof.  Lyotard describes this situation in relation to power or authority.  Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice.  This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible.  A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority.  As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong.  A plaintiff is someone who has incurred damages and who disposes of the means to prove it.  One becomes a victim if one loses these means.  One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.”  Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable. 

If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony.  That is why a State may tax its citizens.  In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do.  When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft.  The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction.  The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent. 

“Sanction” is a double-edged term: it can mean either to approve or to punish.  Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.”  (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.)  Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party.  The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation.  The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm.  In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.  Read the rest of this entry »

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