Introduction to Classical Legal Rhetoric

A Lost Heritage

Michael H. Frost

• Publisher: Routledge
• Year: 2017
• Topic: Law
• eBook ISBN:
  9781351926324
• Subtopic: Jurisprudence
• Index: Law

Lawyers, law students and their teachers all too frequently overlook the most comprehensive, adaptable and practical analysis of legal discourse ever devised: the classical art of rhetoric. Classical analysis of legal reasoning, methods and strategy is the foundation and source for most modern theories on the topic. Beginning with Aristotle's Rhetoric and culminating with Cicero's De Oratore and Quintilian's Institutio Oratoria, Greek and Roman rhetoricians created a clear, experience-based theoretical framework for analyzing legal discourse. This book is the first to systematically examine the connections between classical rhetoric and modern legal discourse. It traces the history of legal rhetoric from the classical period to the present day and shows how modern theorists have unknowingly benefited from the classical works. It also applies classical rhetorical principles to modern appellate briefs and judicial opinions to demonstrate how a greater familiarity with the classical sources can deepen our understanding of legal reasoning.

Chapter 1

Greco-Roman The Canon and Rhetoric: its History

A subject, which has exhausted the genius of Aristotle, Cicero, and Quinctilian [sic], can neither require nor admit much additional illustration. To select, combine, and apply their precepts, is the only duty left for their followers of all succeeding times, and to obtain a perfect familiarity with their instructions is to arrive at the mastery of the art.¹

John Quincy Adams, Boylston Professor of Rhetoric and Oratory, Harvard University

In 400 B.C. if an ordinary Greek citizen of the educated class had a legal dispute with another citizen, he usually appeared and argued his own case before other Greek citizens and did so without the advice or help of a lawyer. Even so, he analyzed and argued his case with a near-professional competence and thoroughness. In preparing his case, he first determined the proper forum for his argument and identified the applicable law. He then determined which facts were most important, which legal arguments were meritorious, and which arguments his adversary might use against him. When choosing his strategies for the trial, he also decided how he would start, how he would tell the story of the case, organize his arguments, rebut his opponent, and close his case. Before actually presenting his arguments, he would carefully evaluate the emotional content of the case and the reputation of the judges. And, finally, he would assess how his own character and credibility might affect the judges’ responses to his legal arguments. In effect, he was analyzing and preparing his case in a lawyer-like fashion.

In making these preparations, he was not depending solely on native intelligence or good instincts. If he was insecure about his ability to create effective arguments or if the case was a particularly important one, he might seek help from a logographoi, or ‘forensic ghost-writers.’² These were professional writers who composed speeches for litigants to deliver before the court.³ A litigant might also be assisted in court by a synegoros, or ‘with-speaker,’ who could offer help, substantive or otherwise, during the proceedings.⁴

With or without assistance, almost anyone preparing a legal case during this period was probably relying on a lengthy, highly structured, formal education in the classical art of rhetoric. Rhetoric, which was central to the classical curriculum, featured the most comprehensive, adaptable, and practical analysis of legal discourse ever created. In fact, the art of rhetoric was originally created as a flexible technique for training advocates to present cases in Greek and Roman law courts.⁵ Moreover, for nearly 1,000 years, the study of rhetoric was at the core of both Greek and Roman education and, in one form or another, has been part of most formal education since that time.

However, in the years since its creation in 450 B.C., classical rhetoric has continuously transformed itself in response to dozens of social, political, educational, religious, and philosophical forces. In the course of these transformations, rhetoric has lost its close identification with legal discourse. Instead of being regarded as the most coherent and experience-based discussion of legal reasoning, analytical methods, and argumentative strategy ever devised, the term rhetoric is now usually associated with meaningless political exaggeration or mere stylistic embellishment. Although this association is unfair and reductive, it is predictable. Throughout its history rhetoric has always suffered from misunderstandings concerning its meaning, value, scope, and purpose.

But because classical rhetoric is an adaptable and, above all, a practical discipline, it always manages to survive and reestablish its original identity as an extremely effective tool for analyzing and creating legal discourse. In fact, with some adaptations for modern stylistic taste and legal procedures, Greco-Roman rhetorical principles can be applied to modern legal discourse as readily as they have been to legal discourse in any other period.

However, to understand how classical principles apply to modern legal discourse, it is first necessary to understand their original principles and how, by virtue of several important historical transformations, these principles are connected to modern rhetorical theories and practice. Fortunately, for the past three decades, interest in classical rhetoric has been growing, and with it an interest in its application to contemporary legal discourse.⁶

A. The Rhetoricians

While countless Greek and Roman rhetoricians studied and wrote about legal rhetoric,⁷ the most important ones are Aristotle, Marcus Tullius Cicero, Marcus Fabius Quintilianus and the anonymous author of the Rhetorica ad Herennium.⁸ A few others made substantial contributions on specialized topics, most notably the rhetorician Hermagoras of Temnos, who is widely credited with creating a technique for classifying various kinds of legal arguments. But the treatises of Aristotle, Cicero and Quintilian form the intellectual core of classical forensic rhetoric and it is their work that is most often relied on when discussing the topic.

Of the three, Aristotle (384–322 B.C.) is the most famous and the most influential. In addition to being a philosopher, scientist, metaphysician, logician and teacher, he also wrote Rhetoric, a rhetoric manual that heavily influenced all those who followed him.⁹ Cicero and Quintilian are his Roman successors.

Marcus Tullius Cicero (109–43 B.C.) was a politician, legal orator, scholar, Roman consul and author, whose collection of rhetorical works includes De Inventione (On Invention), Brutus, De Optimum Genere Oratore (The Best Kind of Orator), Orator, De Partitione Oratoria (Of the Classification of Rhetoric), Topica and, most famously, De Oratore (On the Orator).¹⁰ De Oratore is a multi-volume comprehensive examination of rhetoric and its place in the world of practical affairs.

Marcus Fabius Quintilianus (35–95 A.D.), a great admirer of both Aristotle and Cicero, was a legal orator but, above all, he was a teacher. In his twelve-book Institutio Oratoria (Training of an Orator) he describes not only Roman educational principles, but also principles of legal rhetoric.¹¹

B. Origins and Early Development

Much of the historical and current interest in classical rhetoric springs from its origins as a pedagogical tool. The Roman rhetorical education system, which survived in substantially the same form for more than 400 years, was based on an art of rhetoric first formulated in the fifth century B.C. by Corax of Syracuse and developed more fully by Aristotle, Cicero, and Quintilian.¹² The study of rhetoric was central to the Roman education system from the first century B.C. until the fall of the Empire in 410 A.D.¹³ Before that, rhetorical education had also been a key component in Greek education from at least 450 B.C.¹⁴ Thus, the formal study of rhetoric, especially as reflected in Aristotle’s Rhetoric,¹⁵ Cicero’s De Oratore,¹⁶ and Quintilian’s Institutio Oratoria,¹⁷ had a virtually continuous 1,000 year history in the Greco-Roman world.

Although all Roman citizens did not complete the full course of study, many completed a substantial part of the ten-to twelve-year rhetoric course which ‘carried boys from beginning alphabet exercises at six or seven through a dozen years of interactive classroom activities designed to produce an adult capable of public improvisation under any circumstances.’¹⁸ Designed for use by all members of the educated classes, the rhetoric course included, among other things, detailed instructions for discovering and presenting legal arguments in almost any context and to almost any audience. A student’s rhetorical education prepared him to meet all his public speaking obligations, especially his legal obligations.¹⁹

From its very inception in ancient Syracuse, forensic or judicial discourse has been one of the primary rhetorical topics:

Certain political and social changes taking place at the time prompted [Corax] to establish some system of rhetoric. When Thrasybulus, the tyrant of Syracuse, was deposed and a form of democracy established, the newly enfranchised citizens flooded the courts with litigations to recover property that had been confiscated during the reign of the despot. The ‘art’ that Corax formulated was designed to help ordinary men plead their claims in court. Since, understandably enough, no documentary evidence was available to prove their claims they had to rely on inferential reasoning and on the general topic of probability … to establish their proprietary rights. Perhaps the chief contribution that Corax made to the art of rhetoric was the formula he proposed for the parts of a judicial speech – proem, narration, arguments (both confirmation and refutation), and peroration – the arrangement that becomes a staple of all later rhetorical theory.²⁰

PRINCIPLES OF GRECO-ROMAN FORENSIC RHETORIC: THE CANON

While their analysis of the controlling principles of legal discourse was not absolutely uniform, even a brief (and necessarily simplified) summary reveals that most Greek and Roman rhetoricians nevertheless agreed about legal rhetoric’s fundamental features. They divided legal rhetoric into five parts: invention, arrangement, style, memory, and delivery.²¹ Memory and delivery are primarily useful in oral, as opposed to written, advocacy.

Understandably, classical rhetoricians focused first on systematic methods for discovering or ‘inventing’ all the available legal arguments in a given case.²² To aid in the factual analysis of the case, they compiled detailed checklists and inventories of common types of legally significant facts.²³ Following this they listed and analyzed dozens of commonly used lines of argument called topoi or topics of invention. Their classification system was based on the ‘characteristic ways in which the human mind reasons or thinks. … [They were a] codification of the various ways in which the human mind probes a subject to discover something significant or cogent that can be said about that subject.’²⁴ As they discussed arguments from definition, precedent, ambiguity, legislative intent, etc., they provided numerous illustrations drawn from real and hypothetical cases. They also described rebuttal techniques, logical fallacies, common refutations, and weaknesses frequently associated with particular types of argument.

At the invention stage of the rhetorical process, they simply wanted to ensure that important facts and arguments were not overlooked. Nevertheless, comprehensive as their analysis was, Greco-Roman rhetoricians never regarded their suggestions as anything more than starting points for discovering the available arguments in a given case. Based on their own practical experience, they were acutely aware, and repeatedly reminded their readers, that advocates must be creative, resourceful, and flexible in devising arguments.²⁵

The second stage of the rhetorical process concerned the arrangement or organization of arguments.²⁶ Building on Corax’s teachings regarding the standard organization of legal argument and their own observations regarding the practice of experienced advocates, they divided ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Acknowledgments
• 1 Greco-Roman Rhetoric: The Canon and its History
• 2 Greco-Roman Legal Analysis: The Topics of Invention
• 3 Brief Rhetoric: The Organization of Argument
• 4 Ethos, Pathos and Legal Audience
• 5 Greco-Roman Analysis of Metaphoric Reasoning
• 6 Greco-Roman Elements of Forensic Style
• 7 The Rhetoric of Dissent: A Greco-Roman Analysis
• Bibliography
• Index