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Classical rhetoric: The anonymous Dissoi Logoi and Antiphon’s Tetralogies

6 Jul

This summer, the Classical Rhetoric & Contemporary Law group has begun discussing classical texts relating to rhetoric and argumentation from the perspective of contemporary law. To support that effort, I began a series of background pieces (starting with this post on June 14) to function as a roadmap to classical rhetoric for members of the group and for others interested in classical forensic rhetoric and its intersections with contemporary practice and pedagogy. See that first post for objectives and ground rules of these background posts.

The last post focused on some terminology issues and some history of rhetoric before and up to approximately the time of the sophists in Athens (the 5th century BCE or so). I had originally meant to make the present post a more general one, but as I’m leading a discussing on the anonymous Dissoi Logoi and Antiphon’s Tetralogies tomorrow, I wanted to finish covering them today.

The next post will narrow the focus of the last by explaining the contexts for forensic rhetoric in Athens (and later, Rome); it thus explains what an ancient court case looked like. (Candidly, that would have been helpful in understanding Antiphon’s texts in this post, but it will just have to wait until next time.) It will also introduce some information about how rhetoric was taught in antiquity.

The Double Arguments (Dissoi Logoi)

This anonymous text is a series of show speeches, in most cases arguing both sides of mostly philosophical questions, in other cases arguing for a particular position. Dillon and Gergel date them to the 390s or 380s BCE,[1] after the heyday of the older sophists and well into the era of Plato. They do not readily fit the three genres of classical oratory (deliberative, forensic, or epideictic). Instead, they function as exercises or explorations, and some have said that the Dissoi Logoi are not polished productions by one of our better-known authors or anyone of comparable skill, but are instead the work of a schoolboy or pupil, the position Dillon and Gergel state[2] and which their notes on the text support.[3] Kennedy, however, describes them as “good examples of how to argue on both sides of an issue.”[4] Regardless of their quality as arguments, the fact that these texts have survived suggests that they have been viewed as somehow important or at least emblematic of the arguments or techniques they embody. I speculate that they (or texts like them) might have served as exemplars for folks like Plato of what was wrong with rhetoric. The fact that they may not be aptly argued, or that they argue for radically relativistic views, supports the position of those who are anti-rhetoric.

Antiphon and the Tetralogies

There may have been several Antiphons, and it’s not easy to say which is which: The author of these Tetralogies; the writer of three forensic speeches actually delivered in court; the author of two philosophical treatises, On Truth and On Concord, of which we have only fragments; an anti-democratic Athenian politician; a tragic poet; a dream interpreter; and a psychiatrist.[5] His/their identity was a matter of debate for ancient writers, just as it is for contemporary scholars.[6] In fact, not all contemporary scholars will grant that any Antiphon is author of the Tetralogies.[7] But the “three surviving forensic speeches . . . [attributed to him] have a claim to being among the earliest examples of Attic [Athenian] prose.”[8]

He is identified by Pseudo-Plutarch and others as one of the 10 great Attic (that is, Athenian) orators,[9] and may have had the nickname “speech cook” or logomageiros.[10] Contemporary accounts suggest he was somewhat younger than Gorgias and somewhat older than Socrates[11] and that he operated a school, perhaps of rhetoric (but remember this is before the term “rhetoric”) or sophistry.[12] One Antiphon was an anti-democratic supporter of the oligarchy known as The Four Hundred, which took power in Athens 412 – 411 BCE, and was tried and executed for his part in that coup when democracy was restored.[13] Antiphon is one of the few Athenian citizens classed as sophists—most were foreigners or metics.[14] He is the first author we know by name as a logographos, a writer of speeches for others to deliver before the court or assembly and the first to publish a handbook of rhetoric, though it does not survive. [15]

The Tetralogies are three sets of four forensic speeches, each relating to a single court case—two by the prosecution and two by the defense—and are show speeches, designed either to impress the reader with the author’s skill or to teach his students principles of forensic argumentation.[16] One the one hand, though these are not speeches actually delivered in court, Antiphon may have abstracted them from real cases he argued.[17] On the other hand, at least one scholar dates them to the 440s,[18] placing them more than 20 years before the earliest of his undisputed forensic speeches, which dates to around 419.[19] Kennedy goes further forward in time, nothing that “they seem to reflect legal arguments current at a time after Antiphon’s death,” possibly suggesting they were written in the fourth century.[20] The three Tetralogies all involve homicide: First a premeditated murder, second an accidental death, and third a claim for murder and corresponding claim of self-defense.

Treatment of these texts in scholarship

These particular texts have received scant attention in the legal scholarship, and even in the rhetorical scholarship they have not frequently been treated with great depth. Classics scholarship, not surprisingly, appears to regard them as evergreen sources of debate. In the case of the Dissoi Logoi, the legal scholarship provides really only one examination: Eileen Scallen embraces the figures of Isocrates, Cicero, and Quintillian in her argument for a pragmatic legal rhetoric[21] and its use in teaching evidence,[22] and she cites the Dissoi Logoi to illustrate the proneness of contemporary and classical authors to regard the sophists as supporters of “radical relativism,” despite other possible interpretations.[23] Nuno Coehlo cites but does not discuss the Tetralogies and the Dissoi Logoi as examples of the mode of antilogy—opposing each argument with a counterargument—popular with the sophists.[24]

Dissoi logoi presents the additional problem of referring more generally to “contrasting arguments.” So, for example, Mootz mentions “dissoi logoi,” but not the Dissoi Logoi, in his review of a book that attacks “radical multiculturalism” in legal theory.[25] Mootz’s review functions as an argument for a contemporary rationality, a rhetorical logos, not constrained by oversimplifying Englightenment logic but not entirely unmoored from reason, as some post-modern theorists appear to be.[26] He mentions the concept again while arguing for a reconsideration of the reputation of the sophists in an article where he argues generally for rhetorical knowledge as a foundation for justice.[27] The dual nature of dissoi logoi and Dissoi Logoi shows up in the rhetorical literature as well: Robert Scott, in a landmark essay in rhetorical theory, also mentions the concept of the dissoi logoi without citing our text.[28]

The Tetralogies make a better showing in the legal literature. Adriaan Lanni provides a summary of the Athenian court case.[29] She also explores in considerable detail the evidence that litigants in Athenian cases made references to Athenian law,[30] and used (or mostly did not use) references to precedent.[31] During this process, she compares classical Athenian practice in some cases to concepts from contemporary law, such as identifying the ratio decidendi in a case[32] and distinguishing previous cases.[33] Her discussion is grounded in the corpus of classical Athenian speeches, mostly written by logographoi such as Lysias. She cites two of Antiphon’s forensic speeches[34] and briefly mentions his second Tetralogy.[35] Donald Verene refers to Antiphon’s Tetralogies as an early example of the four-part structure of speeches that he explores in the context of the works of Giambattista Vico, and particularly while comparing them to classical rhetoricians (and Verene would probably say, philosophers) Cicero and Quintillian.[36] Kevin Saunders uses the second Tetralogy as a brief example in a jurisprudence piece on the role of volition in justifying culpability in law.[37] His discussion complements that of Mann, who explores the second Tetralogy in detail while claiming the defense’s argument in it presages contemporary arguments and distinctions among agentive, evaluative, and moral responsibility for acts.[38] There is of course the obligatory cite-without-discussing example: Richard Sherwin includes a reference to the Tetralogies merely as part of a string-cite with several other classical authors in his article on contemporary legal theory.[39]

Antiphon is a subject of substantial interest among classics scholars. For example, in two articles Michael Gagarin discusses whether Antiphon’s existing forensic speeches suggest he was an innovator or reactionary among rhetoricians of his time[40] and the nature of the Athenian law of homicide applied in the Tetralogies.[41] The former piece may become interesting to us later, as it focuses on the distinction between artistic and inartistic proofs that Aristotle will draw in the Rhetoric. The detailed analysis in the latter would prove useful to anyone hoping to make a deep use of the Tetralogies as part of a research project. And Sealey takes up the question of whether the writer of the Tetralogies was using Athenian law as the basis for the speeches, and if so, of what era.[42] He concludes that features of the law in the Tetralogies mean they were “more likely to have been composed after 403 than before”[43] (and thus after Antiphon’s death).

[1] The Greek Sophists 319, (John Dillon & Tania Gergel trans., 2003). Cf. George A. Kennedy, A New History of Classical Rhetoric 17(1994) (placing them at the end of the fifth century); Thomas M. Conley, Dating the So-Called Dissoi Logoi: A Cautionary Note, 5 Ancient Philosophy 59, 62-63 (1985) (arguing they were written centuries later, perhaps as late as the twelfth or thirteenth century CE).

[2] The Greek Sophists, supra, at 319.

[3] See, e.g., The Greek Sophists, supra, at 405 nn.27-28, 33, at 408 n.69, and at 411 n.105. See also Conley, supra, at 59.

[4] Kennedy, supra at 17.

[5] The Greek Sophists, supra, at 133-34.

[6] Dillon and Gergel quote the second-century CE rhetorician Hermogenes of Tarsus at length on the question. The Greek Sophists, supra, at 135-36. For contemporary assessments, see, e.g., Kennedy, supra at 23 n.15; Laurent Pernot, Rhetoric in Antiquity 19 (W.E. Higgins tran., 2005).

[7] R. Sealey, The Tetralogies Ascribed to Antiphon, 114 Transactions of the Am. Philological Ass’n (1974-) 71 (1984). Sealey argues that the author of the Tetralogies did not correctly report Athenian law from the period and was guilty in some cases of writing with an Ionic (rather then Athenian) style; these are unlikely if the leading Athenian citizen of the period known as “Antiphon” was their author.

[8] The Greek Sophists, supra, at 134.

[9] The Greek Sophists, supra, at 137.

[10] The Greek Sophists, supra, at 134 (quoting the tenth-century CE Byzantine encyclopedia the Suda).

[11] Dillon and Gergel place his birth around 475 BCE, with Gorgias a half dozen years earlier and Socrates a half dozen later. The Greek Sophists, supra at vii. Gagarin puts it at 480. Michael Gagarin, Greek Oratory (Series Introduction), in Isocrates I xii, xv (David C. Mirhady & Yun Lee Too trans., 2000). Pernot also chooses “c. 480.” Pernot, supra, at 19.

[12] Xenophon describes “Antiphon the sophist” as trying to lure Socrates’ students away. Xenophon, Memoirs of Socrates, in Xenophon: Conversations of Socrates 95 (Robin Waterfield & Hugh Tredennick trans., 1990) (1.5.6; this section number refers to a contemporary “breakdown” of Xenophon’s text. See the note on a previous post regarding such references).

[13] The Greek Sophists, supra, at 133-34.

[14] Gagarin, supra, at xiii (noting that metics were “non-citizen residents of Athens,” and because “they were barred from direct participation in public life,” their only employment in as rhetoricians was to “contribute by writing speeches for others”).

[15] The Greek Sophists, supra, at 137 (quoting Pseudo-Plutarch, Lives of the Ten Orators).

[16] The Greek Sophists, supra, at 172.

[17] The Greek Sophists, supra, at 375 n.101.

[18] Kennedy, supra, at 23.

[19] Sealey, supra, at 72.

[20] Kennedy, supra, at 23. See also Sealy, supra, at 73 (“[O]ne need merely note that . . . the Tetralogies are closer to Antiphon’s practice late in life and to subsequent Athenian oratory than to his method in his earliest extant court-speech.”)

[21] Eileen A. Scallen, Evidence Law as Pragmatic Legal Rhetoric: Reconnecting Legal Scholarship, Teaching, and Ethics, 21 Quinnipiac L. Rev. 813, 850-51 (2003). Scallen’s article provides an overview in broad brushstrokes of classical rhetoric, the controversies between those in the camp of Plato and those in the camp of the sophists and Iscocrates.

[22] Scallen, supra, at 857-86.

[23] Scallen, supra, 839 n.101.

[24] Nuno M.M.S. Coelho, Controversy and Practical Reason in Aristotle, in Aristotle and The Philosophy of Law: Theory, Practice and Justice 87–108 (Liesbeth Huppes-Cluysenaer & Nuno M.M.S. Coelho eds., 2013).

[25] Francis J. III Mootz, Between Truth and Provocation: Reclaiming Reason in American Legal Scholarship (review of Daniel A. Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law), 10 Yale J.L. & Human. 605, 637 (1998). Mootz writes: “Protagoras did not seek singular rational truths in human affairs but began with a conception of the world as constituted by dissoi logoi (contending discourses) that can be resolved only as a matter of collective judgment.”

[26] Mootz, Between Truth and Provocation, supra, at 641.

[27] Francis J. III Mootz, Rhetorical Knowledge in Legal Practice and Theory, 6 S. Cal. Interdisc. L.J. 491, 551 n.155 (1998). The article is a thorough and complex synthesis of ideas from Chaim Perelman and Hans-Georg Gadamer.

[28] Robert Scott, On Viewing Rhetoric as Epistemic, 18 Central States Speech J. 9, 15 (1967).

[29] Adriaan Lanni, Precedent and Legal Reasoning in Classical Athenian Courts: A Noble Lie?, 43 Am. J. Legal Hist. 27, 29-31 (1999).

[30] Lanni, supra, at 31-41.

[31] Lanni, supra, at 41-51.

[32] Lanni, supra, at 42, 47, 49, 50. Interestingly, Lanni’s article refers to ratio dicendi, a term unknown to me, rather than the well known ratio decidendi.

[33] Lanni, supra, at 47, 49.

[34] Lanni, supra, at 30 n. 13 (citing Antiphon 5) and at 38 n. 74 (citing Antiphon 6).

[35] Lanni, supra, at 37 n. 67.

[36] Donald Phillip Verene, Vichian Moral Philosophy: Prudence as Jurisprudence, 83 Chi.-Kent. L. Rev. 1107, 1121 (2008). The reference to the Tetralogies as an example of a four-part structure is strange, given that they are conceived as four separate speeches given by two different speakers. The focus of Verene’s article is to argue for Vico’s view that eloquence, ethical prudence, and jurisprudence should be taught as necessary parts of the liberal arts.

[37] Kevin W. Saunders, Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition, 49 U. Pitt. L. Rev. 443, 444-45 (1988).

[38] Joel E Mann, Causation, Agency, and the Law: On Some Subtleties in Antiphon’s Second Tetralogy, 50 J. of the History of Philosophy 7, 16 (2012).

[39] Richard K. Sherwin, Lawyering Theory—An Overview: What We Talk About When We Talk About Law, 37 N.Y.L. Sch. L. Rev 9–53 (1992).

[40] Michael Gagarin, The Nature of Proofs in Antiphon, 85 Classical Philology 22–32 (1990).

[41] Michael Gagarin, The Prohibition of Just and Unjust Homicide in Antiphon’s Tetralogies, 19 Greek, Roman and Byzantine Studies 291–306 (1978).

[42] Sealy, supra, at 72.

[43] Sealy, supra, at 84.

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.

Introducing the Classical Rhetoric & Contemporary Law group

14 Jun

[It’s been a while since I posted: I’ve been wrapped up in wrapping up things as I prepare to leave Georgia Tech and head to Texas A&M’s School of Law in the fall. But here’s one new project about which I’m very excited.]

In January 2017 I invited colleagues in the legal academy, particularly those active as teachers of legal writing and legal theory, to join me in an exploration of classical rhetorical texts and their intersections with contemporary law. I issued the invitation over the Legal Writing Institute’s mailing list and via direct emails to a few specific colleagues.

Today, we had our first teleconference to discuss a classical text, Gorgias’ Encomium of Helen—it was a wonderful experience for me, but more on that in another post. In this post, I want to discuss why I thought it made sense to form such a group and to describe what the group has agreed to do.

Why have a reading group for classical rhetorical texts?

Athenian democracy and the study of rhetoric appeared together in the 400s BCE. The twin birth of classical rhetoric and classical legal thinking has not resulted in a close relationship between their children, contemporary legal theory and the contemporary study of classical rhetoric. In broad terms, rhetoric scholars don’t know contemporary law; perhaps every PhD student in rhetoric and related fields has a classical rhetoric course, but their training and scholarship do not reflect practical knowledge of contemporary law. And law scholars treat classical rhetoric superficially (more on that in a moment). Like many generalizations, this is a gross oversimplification: There are certainly scholars of rhetoric and law (e.g., James Boyd White), scholars of law who know rhetoric (e.g., Kristen Tiscione, Michael Frost), and scholars of rhetoric who know law (e.g., Clarke Rountree, Mary Schuster, Peter Campbell, Anjali Vats).

But contemporary study of classical rhetoric makes hardly any mention of contemporary law at all. And a review of contemporary law scholarship shows that classical rhetoric is of interest to contemporary scholars of legal writing, but it also points up common problems: contemporary citations are often only to the most famous classical figures (e.g., Aristotle and Cicero), are occasionally only superficial, and sometimes are to secondary authorities without showing evidence of reading the original classical texts (despite their availability in modern, inexpensive translations).

My goal in asking folks to join me in reading these texts together was to broaden and deepen the legal-writing and legal-theory fields’ understanding of classical texts. Two dozen scholars, mostly from the legal writing community, have joined to form the Classical Rhetoric & Contemporary Law (CRCL) group.

The goals of CRCL are to read classical texts and engage with them, to develop insights about the ways that classical rhetoric intersects with contemporary law, and to help the legal writing and legal theory community to engage more productively with the classics.

Process and products

CRCL formed in May 2017, made up principally of legal scholars planning to engage in the following practices. First, the group selected texts they would read. The list includes Greek Sophists, Plato, Aristotle (both the foundational texts in logic, the Organon, and the Rhetoric), some other Greeks of the classical period, Romans such as Cicero and Quintilian, and some other Hellenistic writers (including Hermogenes of Tarsus).

As their second order of business, the group adopted a procedure for discussing each text via teleconference, with each meeting being 60 mins and taking place between two and four weeks after the last. In some sessions, the group may discuss more than one text. Some longer texts will require more than one session. All members of the group read the assigned text(s), but one member agrees to be discussion facilitator.

A session’s facilitator/leader has several duties. At least three weeks before the scheduled meeting, the facilitator informs the group which edition/translation of the work(s) considered at the meeting the facilitator will use. Other participants can use different editions/translations, but if they want to work from the same text as the facilitator, they’ll know the text. At least 10 days before the scheduled meeting, the facilitator provides some items to the entire group: a summary of references to the work(s) considered in the field of law (potentially including uses of the work(s) considered in the legal writing and jurisprudence (legal philosophy) literature); and four or five reading questions to guide other participants’ involvement. The facilitator also identifies and reads some sources outside the legal literature engaging with the work(s) considered, possibly critically. At the meeting’s beginning, the facilitator presents a 5-10-minute introduction of the text to contextualize it. (The facilitator can write this and send it out in advance instead.)

Of course, this approach is still subject to revision based on our experiences in early days.

The group’s third and final order of business was to consider what scholarly products might come out of this effort. Two are described here merely to provide a basis for discussion. An ambitious product would be an edited collection consisting of the components listed here, one that we would intend for use in at least two environments: (1) The law school classroom, probably in an advanced class in rhetoric, communication, legal writing, legal history, or the like; and (2) the graduate classical rhetoric classroom. It would take the form of a “reader,” including an introductory “chapter” by the editors, excerpts (and in some cases, complete works) of key classical texts in good translations, for each text an introduction to that text akin to an encyclopedia entry, and for each text (or group of them) a reflection by a law-trained scholar on the continuing “traces” of the classical text in contemporary legal practice, theory, or both.

Each contemporary reflection might focus merely on using a classical text to find and explain parallels in contemporary legal theory and practice, perhaps arguing that the parallels illustrate concepts essential to legal/forensic rhetoric. On the other hand, it could take a more critical approach, arguing that contemporary legal practice should move on from hidebound traditions that better reflect the needs of classical litigants than contemporary ones. More nuanced and other angles are possible, of course.

The success of the volume in this form would stem from its uniqueness as a resource for law and rhetoric teachers. We are not familiar with any volume that exposes law students or students of rhetoric to classical rhetoric while connecting what they learn in a systematic way to contemporary practices in the field of law (or any other profession).

A less ambitious final product might take the form of a series of essays in a special issue of a law review. For example, one of our schools could host a symposium where we present the papers and then its law review would publish proceedings as a special issue. Such resources would likely be useful in a law school class, but they would be less likely to be used outside the legal academy (it’s not as easy for non-law faculty to find law review articles).

We are already looking for ways to engage scholars of law and rhetoric in discussions regarding our early observations: The group submitted two panel proposals for the 2018 LWI conference (one proposal discussing our reading-group procedure and one discussing substantive insights), and we plan to submit a proposal for the 2018 Rhetoric Society of America conference as well.

I hope that the members of the group will have more to say about what they are discovering in the coming months and years.