The History of Rhetoric

K R I S T E N K . T I S C I O N E J U N E 2 0 1 4

Rhetoric is the art of “discovering in the particular case what are the available means of persuasion.” — Aristotle, R HETORIC (c. 333 BCE)

Logic

the invention and arrangement of ideas that lead to truth (the philosopher)

Rhetoric

the invention, arrangement, and

expression

of ideas that lead to

probable

truth (the politician, lawyer)

Grammar

The Trivium

Logic Rhetoric The art of inventing The art of The art of and combining symbols thinking communication to communicate

Ramism

Logic –

invention arrangement Rhetoric – invention arrangement expression beauty style

Rhetoric disappears as a school subject



Writing (English)



Speaking (Speech

) 

Literature –

(how to read) 

Rhetorical criticism

(how to evaluate speech) 

Composition

(how to write) 

Speech

(how to speak)

Impact on legal education

Doctrinal – invention Courses arrangement scientific case method true principles of law

(theory)

Legal –

Writing Courses

expression

+ invention arrangement

(practice)

Invention in Legal Writing

• the holding of a case • synthesized legal rules • analogies

No “true” law

Q: What is negligence?

A: It depends . . . on the jurisdiction, the case law, the lawyer who interprets it, and the judge who applies it.

What does this all mean for us?

 Ramus was wrong: inseparable – theory and practice are  Ideas and knowledge cannot exist in society outside their expression  Aristotle was wrong: all knowledge is probable and a product of the rhetorical process  Rhetoric uses logic and grammar to produce knowledge

Law is the product of rhetoric

Administrators Legislators Regulators LAW Constituencies Judges Advocates Parties Scholars 1nvention arrangement +

expression

Teaching law as rhetoric

If law is a function of rhetoric, rhetorical theory helps us understand     the lawmaking process how to persuade and participate in the process how to teach the process, and how to teach it better

Using Rhetorical Theory and Method to Study Legal Communication

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Rhetoric: Kirsten’s Definition

 The ability to    use or understand how others use symbols to  reason from shared assumptions,  increase identification between “speaker” and “audience,” and  inspire an audience to take action or change attitudes.

 More definitions: http://www.americanrhetoric.com/rhetoricdefinitions.htm

Rhetorical Theory and Method

 Rhetorical Theory: A body of thought about human symbol use.

 Rhetorical Method: Using rhetorical theory to ask questions about “how communication constructs a specific understanding of the world.”

Applying rhetorical theory is humanistic inquiry.

 Seeks to explain:   Agency of speakers Roles of symbols in the human world  Power of audience to co-construct reality  Humanistic, not scientific:   Not looking for objective truth—reality is not a distinct object to be “discovered” Looking to understanding the meaning humans assign—reality is a product of humans interactively creating knowledge in context.

A speaker uses symbols of the law to persuade an audience to take action. The action of the audience is constrained. All of this takes place in a context.

Speaker Symbol (of Law) [Legal] Context and Constraints Need Audience Rhetorical theory is a lens for looking at legal communication as a rhetorical situation.

Two Main Areas for Using Rhetorical Theory and Method to Analyze Legal Communication

Production (Instructive)

    Construct messages more consciously.

Write better.

Speak better.

Teach better.

Reception (Instructive, Critical)

   Receive messages more consciously.

As a lawyer: read/listen better.

As a scholar/ “special citizen”: critically assess legal messages.

Why Rhetorical Theory for Legal Communication?

   Improve  teaching and develop expertise.

  production and reception of legal communication.

understanding of how legal language works by standing “outside” the law to make better sense of law as language. Examine  ethics of legal communication as well as effectiveness. Create  The legal community we want by theorizing the practice of law.

Applying Rhetorical Theory: The Researcher’s Choices      What will be the

focus

of study? The speaker, audience, patterns, strategies?

What is the

perspective

take?

(method) the scholar will What is the

judgment

the scholar wishes to make (descriptive, interpretive, evaluative)?

What kind of

insight

will be gained from the study?

Rhetorical Theory Is Applied Through Methodological Perspectives       Neoaristotelian Metaphor Narrative Fantasy Theme Dramatistic Genre       Ideographic Ideological Generative Feminist Sociological Social Movement

Dramatism: Cluster Analysis

Generally Method

  Looking for how symbols “hang together” “What goes with what” Action is motivated. Language is symbolic action. Symbol choices reveal motivation.

 Key symbols   Frequency Intensity  Associational Clusters  Proximity    Cause/effect Connectedness Opposing terms

Dramatism: Pentadic Analysis

The idea

   Symbolic structures have five interacting elements.

Meaning changes depending on the relationship between those elements.

Pentad allows systematic exam of the “strategic moments” in symbol use.

The Pentad

Pentadic Ratios

Scene Determines Act

 At a little after the restaurant’s closing time, Ms. Jones found herself alone in an unlit alley. That was when Mr. Smith rushed toward Ms. Jones from an area obscured by empty liquor crates.

Act Defines Agent

 While walking home after a late dinner at a local restaurant, Mr. Smith saw Ms. Jones, a tenant in his apartment building, and he attempted to escort her home.

Metaphor Analysis

Metaphor Parts Generally

   The way in which we know our reality through language.

An argument for a particular view of the world.

The “vehicle” frames the “tenor.” http://flowtv.org/2013/01/what%E2%80%99s-in-a-metaphor abortion-rhetoric/ Tenor: Abortion Vehicle: Terrorism

Julie A. Oseid University of St. Thomas School of Law Minneapolis, MN [email protected]

Kristen Tiscione

Aristotle Michael Smith and Linda Berger

Kirsten Davis

The Four James Boyd White

I (and maybe you, too?) was a rhetoric scholar and teacher and didn’t really realize it . . .