Title: 'Government of the Tongue': Law, Rhetoric and Mental Capacity in English Law

Abstract: 'What contribution can rhetoric make to socio-legal studies? Though now a byword for deception and spin, rhetoric was long identified with the very substance of law and politics. Classical and early modern writers still offer a powerful mode of reading persuasive speech (and writing) which takes agency seriously while attending to wider cultural and social contexts. Latterly radical scholars have foregrounded an understanding of law as rhetoric in their polemics against legal formalism. This is an important inheritance, but it needs to be complemented by a critical rhetoric which goes beyond simple revivalism. Account needs to be taken of rhetoric’s own blindspots, inquiring into the means by which some speakers and listeners are privileged as participants and others excluded or silenced. The critical potential of legal rhetoric in this key is tested here through a review of the developing law on mental capacity and the best interests of people with disabilities in England and Wales. Much of what is at stake there is properly grasped in terms of a politics of speech: who is addressed, who can speak, who must speak and how are they represented in judicial and media discourse. What Séamus Heaney referred to as 'government of the tongue' is central to critical and socio-legal studies of the field'