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Early history of classical rhetoric

15 Jun

On June 14, the Classical Rhetoric & Contemporary Law group discussed Gorgias’s Encomium of Helen from the perspective of contemporary law, but many of us were new to the text, and so we spent a considerable amount of time just getting familiar with it. We may report later as a group on our discussions and efforts. But first I want to provide background pieces to function as a roadmap to classical rhetoric, Gorgias, this text, and other classical texts for members of the group and for others interested in classical forensic rhetoric and its intersections with contemporary practice and pedagogy. My goal here is to document citations thoroughly enough that another legal scholar approaching these texts and this history will be able to find primary and very reputable secondary sources, including those cases where differences of opinion may exist.

[As the CRCL group has not yet discussed how we will refer to the group’s work when writing about the texts we discuss, I’m not providing any kind of summary of its meetings or of the interpretations and insights we discuss there. The materials in this post and future ones like it will consist only of work of my own and of those whose permission I’ve received to share it.]

In this first post, I’ll introduce the early history of classical rhetoric. In the next, I’ll characterize the forums where forensic or judicial rhetoric was practiced and describe classical rhetorical education. In later posts, I’ll describe the extant texts that contemporary scholars may read from the classical tradition, the Greek ‘sophists,’ and particularly Gorgias.

The term ‘classical rhetoric’ is like ‘classical music’ in that it refers both to a broad category and to a narrower part of it: We might describe all of Greco-Roman rhetoric from the fifth century BCE until after the end of the Roman empire nearly 1000 years later as ‘classical,’ as James Williams does in the title of his reader.[1] Or we might refer to the period in Athens between the end of tyrrany and establishment of democracy at Athens (ca. 510 – 508 BCE[2]) and the death of Alexander the Great (323 BC[3]) or basically the 5th and 4th centuries BCE as the ‘classical period’ in Greece. CRCL is using the broader meaning of this term.

This post (and indeed the CRCL) will focus more narrowly still on forensic or judicial rhetoric, where the audience is judging things that happened in the past, as in a court case.[4] This is one of the three “species”[5] or “genera”[6] of rhetoric that Aristotle identified, the other two being deliberative—where the audience judges a proposed future course of action[7]—and demonstrative or epideictic[8]usually ceremonial speeches “intended to influence the values and beliefs of the audience.”[9]

Though there is a time before ‘rhetoric’ in Greek culture, there is probably not one before rhetoric. This paradoxical assertion arises from the fact that the word rhētorikē in Greek does not make its first appearance until sometime in the early 4th century BCE. But according to Pernot, there was a long tradition of oratory in Greek going back to Homer’s Illiad and Odyssey,[10] which date to the 8th century[11] and which were originally transmitted orally from generation to generation.[12] In his history of rhetoric, he devotes nearly a whole chapter to Homer, describing his works as “a gallery of orators.”[13] He notes that Achilles is described there as “a speaker of words and a doer of deeds.”[14] “Speaker” there translates rhētēr, which along with rhētōr (the more common term in the modern era) means ‘orator.’ Rhētorikē then comes from placing this noun together with the –ikos suffix, which suggests a “technical” or “trade” term “carrying an intellectual connotation.”[15]

But Homer does not use ‘rhetoric’ or rhētorikē. Neither do the oldest fragments of text we have—from the fifth-century teachers of oratory, including Antiphon and Gorgias. Kennedy claims the term first appears in Plato’s dialogue Gorgias, “about 385 B.C. but set dramatically a generation earlier.”[16] Pernot says it first appears in the Gorgias—which he dates to around 387-385—or in Alcidamas’ On the Authors of Written Speeches—which he dates to around 390.[17]

The term used before ‘rhetoric’ was logos,[18] but that term poses great difficulties of translation, as Kennedy notes:

Logos has many meanings through the long history of the Greek language; it is anything that is “said,” but that can be a word, a sentence, part of a speech or a written work, or a whole speech . . . . Thus is can also mean “argument” and “reason,” and that can be further extended to mean “order” as perceived in the world or as given to it by some divine creator . . . . [L]ogos was consistently regarded as a positive factor in human life, and teachers of rhetoric often celebrated it.[19]

Why does it matter whether teachers of oratory used ‘rhetoric’ or not? I’ll take that up briefly when I write about the ‘sophists’ later.

According to Kennedy, the term rhētorikē “in Greek specifically denotes the civic art of public speaking as it developed in deliberative assemblies, law courts, and other formal occasions under constitutional government in the Greek cities, especially the Athenian democracy.”[20] This is the way I will generally use the term ‘rhetoric’ in these posts. It seems western law and rhetoric arose together, in the context of democracies, or at least where decisions are made according to some procedure.

So, for example, Korax, the supposed inventor of rhetoric, becomes its first famous practitioner in Syracuse, a Greek colony in Sicily, after the death of the tyrant there.[21] According to Habinek, there is a “widespread sense that the end of tyranny is the beginning of rhetoric, and vice versa,” and he contends “that the ancient belief in the mutual exclusivity of tyranny and rhetoric is itself a variation on the wider theme of rhetoric’s role in the foundation of the state.”[22] Kennedy, too, claims “Aristotle associated attempts to describe a technique of public speaking with the emergence of democracy.”[23]

The invention or discovery of rhetoric by Corax and Tisias of Sicily is reported by Cicero,[24] but Kennedy claims that “Corax” (crow) was likely just a nickname for Tisias.[25]

Given Pernot’s claims that Greece was hyper-oratorical from the time of Homer, how and why would Protagoras and Gorgias—‘sophists’ and the earliest teachers of oratory in Athens—so have amazed the Athenians? It cannot merely have been the “poetic character” and “showy effects” of Gorgias’ style,[26] as the Athenians (and all the Greeks) had seen these attested in Homer.[27]

We’ll have space to talk more about that later, but I suspect it was because these teachers brought a new philosophy, at least of language, but also of logos or reasoning and peitho or persuasion. The idea of systematically exploring a subject from all sides to identify epistemic and argumentative possibilities may have been new to the Athenians. This is the beginning of what I will call “classical argumentation theory” later in these posts.

As a consequence, according to Pernot, the sophists focused thought on situations “where the discussion is situated within the category of values and probabilities, not of axioms and scientific demonstrations . . . . the situation of the courtroom . . . where speeches oppose one another and justice and truth are not preexisting, but only pronounced afterward, at the end of the debates that have evoked them.”[28] So according to these earliest influential teachers of oratory, “courses of practical action can best be determined by considering the advantages of the alternatives . . . [which] opens up a place for skill in ‘making the weaker the stronger cause.’”[29]

It is this purpose of rhetoric to lead to a truth instead of the Truth, its power to deceive and lead folks astray, and its propensity to examine an issue in minute detail—to split hairs—that puts it at odds with philosophers and common people alike, a fact we will take up in a later post.

In the next post, I’ll take up the forums where judicial rhetoric was performed and rhetorical education.


[1] James D. Williams, An Introduction to Classical Rhetoric: Essential Readings (2009). Note: As I teach students (mostly) to use the Bluebook “blue pages” citations, and I don’t like the law-review footnote style of citations, I use the former here, even though this text is more ‘academic-ey’—and I’m using footnotes. Note too, that because of the way I draft these posts, I prefer not to use id. citations, because I never know if I’m going to insert new sentences that might break the “id-chains.”

[2] Thomas Habinek, Ancient Rhetoric and Oratory ix (2005).

[3] Habinek, supra, at x.

[4] George A. Kennedy, A New History of Classical Rhetoric 4 (1994). Aristotle’s term in Greek is dikanikon. Aristotle, On Rhetoric: A Theory of Civic Discourse 48 (George A. Kennedy tran., 2d ed. 2007) (I.3.3., 1358b). Citing classical texts, which are rarely available in ‘original editions,’ can be a challenge. Citing only to the page number in one translation may make it difficult to find the same text in another edition. Citing only to esoteric section and page numbers from reference editions of texts can leave the reader possessing the particular edition used by the author somewhat adrift. Consequently, when I cite a classical text the first time, I’ll explain how the citation works. When I cite it subsequently, I’ll provide as much information as I can for the reader. So, in the case of Aristotle’s rhetoric, cited earlier in this note, I have provided the page number in Kennedy’s translation, but in the parenthetical I have provided the book, chapter, and section number, and also the Bekker number. The book numbers are Aristotle’s, the chapter and section numbers were assigned by Renaissance and early modern editors, and the Bekker number refers to the page in a canonical Greek edition from the 19th century. See George A. Kennedy, Notes on the Translation, in On Rhetoric: A Theory of Civic Discourse xiv, xiv (2d ed. 2007).

[5] Aristotle, supra, at 47 (I.3.1, 1358a-b).

[6] Aristotle, supra, at 48 (I.3.3, 1358b).

[7] Greek symbouleutikon. Aristotle, supra, at 48 (I.3.3, 1358b).

[8] Greek epideiktikon. Aristotle, supra, at 48 (I.3.3, 1358b).

[9] Kennedy, A New History of Classical Rhetoric, supra, at 4.

[10] Laurent Pernot, Rhetoric in Antiquity 1-7 (W.E. Higgins tran., 2005).

[11] Pernot, supra, at 7.

[12] Kennedy, A New History of Classical Rhetoric, supra, at 26.

[13] Pernot, supra, at 3.

[14] Pernot, supra, at 4 (quoting Homer, Iliad 9.442-443).

[15] Pernot, supra, at 23.

[16] Kennedy, A New History of Classical Rhetoric, supra, at 3.

[17] Pernot, supra, at 21.

[18] Pernot, supra, at 22.

[19] Kennedy, A New History of Classical Rhetoric, supra, at 11-12.

[20] Kennedy, A New History of Classical Rhetoric, supra, at 3.

[21] Thomas Habinek, Ancient Rhetoric and Oratory 9 (2005). Habinek gives 466 BCE for the “[d]eath of Hieron, tyrant of Syracuse, and ‘invention’ of rhetoric by Korax.” Id. at ix. Cf. Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage 2 (2005) (dating the “creation” of rhetoric to 450 BCE).

[22] Habinek, supra, at 8.

[23] Kennedy, A New History of Classical Rhetoric, supra, at 11. See also Pernot, supra, at 11 (describing the “judicial and democratic character of the new invention,” rhetoric).

[24] Kennedy, A New History of Classical Rhetoric, supra, at 11.

[25] Aristotle, supra at 48, n. 202; George A. Kennedy, The Earliest Rhetorical Handbooks, in On Rhetoric: A Theory of Civic Discourse 293, 294 (2d ed. 2007).

[26] Pernot, supra, at 18.

[27] Pernot, supra, at 1-7.

[28] Pernot, supra, at 14.

[29] Kennedy, A New History of Classical Rhetoric, supra, at 7.

‘Irreparable harm’ and legal arguments by analogy and example

29 Nov

I’m excited! My proposal for the 8th ISSA Conference on Argumentation in Amsterdam in July 2014 has been accepted. Of course, I still have plenty of work to do to get ready! Here’s my abstract:

This paper presents the results of a pilot empirical study of written legal arguments and oral reports of authors’ cognition to explore the following research questions: Do American lawyers perceive differences between arguments by analogy and arguments by example, and if so, how are those differences represented in their argumentative writing? Scott Brewer (1996), Lloyd Wienreb (2005; 2007), and Richard Posner (2006) engaged in a lively debate regarding exemplary and analogical reasoning in court opinions, but they did not consider actual arguments before trial or appellate court judges or the cognition of attorneys or judges arising around them. Macagno and Walton (2009), following Perelman and Olbrechts-Tyteca (1969) and harkening to the tradition originating with Aristotle, discussed the distinction between legal reasoning by example and by analogy. But their discussion was largely theoretical.

I will present results of a systematic textual analysis of a small random sample of memoranda in support of and in opposition to motions for preliminary injunction before U.S. trial judges. Because of the particular nature of preliminary injunction motions, which seek to prevent “irreparable harm” to the moving parties, memoranda relating to them often represent instances both of exemplary and analogical argument. I will characterize the cognition of authors of some of these memoranda based upon discourse-based interviews of them. Discourse-based interviews (Odell, Goswami & Herrington, 1983) are an adaptation of the think-aloud protocols developed by Herbert Simon and others and are common in studies in cognitive science (Ericsson & Simon, 1980). The results offer insight into whether the argument by example/analogy distinction is tenable in legal reasoning. These results should be of interest to argumentation theorists, legal philosophers, and teachers of legal reasoning and writing.