Lucy Jewel, Neurorhetoric, Race, and the Law: Toxic Neural Pathways and Healing Alternatives, 76 Maryland Law Review 663 - 695 (2017) (180 Footnotes) (Full Article)
Persuasion happens in both the brain and the body. Departing from a Cartesian view of rationality, neuroscience explains that the mind and the body are highly integrated. It is a fallacy to believe that we engage with arguments in an abstract, analytical, and unemotional fashion. Instead, neuroscience explains that when rhetoric influences us, it does so in an embodied way, triggering electrochemical reactions that traverse our neural pathways, beyond the purview of our conscious thought. Although it sounds like a science fiction concept, the biological and embodied nature of rhetoric is in line with the beliefs of the ancient Sophists, who understood rhetoric to have the same kind of effect on the brain as a drug. This ancient understanding, that rhetoric can infiltrate the human body, is another instance where ancient knowledge aligns with modern scientific theory.
Neurorhetoric is the study of how rhetoric shapes the human brain. At the forefront of science and communication studies, neurorhetoric challenges many preconceptions about how humans respond to persuasive stimuli. Neurorhetoric can be applied to a multiplicity of relevant legal issues, including the topic of this Symposium Issue: race and advocacy. After detailing the neuroscientific and cognitive theories that underlie neurorhetoric, this Essay theorizes ways in which neurorhetoric intersects with the law, advocacy, and race. This Essay explores how toxic racial stereotypes and categories become embedded in the human brain and what can be done about it.
This Essay, which examines the way that language creates thought patterns that can become collectively entrenched, is especially relevant in our extremely divisive political age. For instance, President Donald Trump's campaign drew upon negative stereotypes about minorities by crafting an us *664 vs. them dichotomy to foment political support. As discussed below, these either/or thought patterns, adopted collectively, are what fueled the totalitarian and fascist regimes prior to World War II. And it is not just right-wing western political rhetoric that threatens. The Islamic State of Iraq and Syria (ISIS) also employs highly effective rhetorical tactics of inclusion and exclusion, defining a community of Muslims (the Ummah) who must join in jihad against the kufr camp, all those individuals existing outside the Ummah. ISIS's rhetoric, diffused online through multiple media platforms, effectively draws in disaffected youth from all over the world to join the movement, become part of the community, and massacre those outside of the community.
The harmful rhetoric used to describe racial minorities and other subordinated groups produces toxic thought patterns that can become entrenched in the public mind. For instance, as this Essay explains in more detail below, when overt racism lost political credibility in the 1970s, conservative political operatives began using coded categories to link racial minorities with enduring negative stereotypes. For example, the term “Welfare Queen” automatically conjures up racialized images that reify existing power structures in a rapid and unconscious way. The term quickly captures complex ideas concerning the undeserving versus deserving poor, the racialized and feminized nature of poverty in the United States, and longstanding historical stereotypes about race, work, and family.
Neuroscience explains why and how racially coded categories are so efficient: they create neural pathways that, upon continued use, become collectively entrenched. An entrenched neural pathway offers a smooth and rapid path for a conclusory message to reach an individual's consciousness. Coded categories are harmful because they encourage rapid unconscious thinking that has the effect of hardwiring stereotypes into the pathways of the brain. The rapid way in which a term raises these unspoken conclusions makes it difficult to imagine other narrative possibilities or engage in reasoned deliberation about the issue.
This Essay explores six thoughts related to neurorhetoric, the law, and race. First, this Essay generally explains the cognitive science and neuroscience theories that form the foundation of neurorhetoric, describing how rhetoric enters and interacts with the human brain and body. Second, from *665 a historical perspective, this Essay explores how racialized rhetoric can be used to produce collective brain pathways that dehumanizes entire groups of people-- a frightening process that sheds light on the widespread acquiescence to genocide and racial annihilation, such as what occurred in the Holocaust.
The third point fleshes out the intersection between neurorhetoric and race in the United States, with a specific focus on how U.S. racial stereotypes become embedded in the collective brainscape. The fourth point addresses neurorhetoric and the law, detailing law's unique power to reify concepts, which makes the law an especially potent type of embodied rhetoric. Building upon the previous discussion, the fifth point provides three concrete examples of how neurorhetoric connects with the law and race--in the courtroom, in recent tragedies involving police shootings of black men, and in the term “alien,” a toxic legal category that castigates and dehumanizes immigrant groups.
Finally, this Essay concludes with a theory of hope. To the extent that rhetoric produces collective neural pathways that reinforce racial oppression and subordination, the identification and deployment of alternative discourses have the potential to carve out healing pathways that can reshape brains, both individually and collectively. To that end, this Essay proposes a novel approach to legal rhetoric: a comparative approach that might uncover alternative discourses that can be infused into the law, carving out healing brain pathways and devitalizing pernicious pathways.