Rhetorical Criticism

This post is just to invite commentary, questions, and insights about today's discussion in class about rhetorical criticism.

Some helpful links:

Here is Martin Luther King Jr's "I Have a Dream" speech.

Here is a site explaining the rhetorical theories of Kenneth Burke.

Here is a site explaining Marxist criticism (as well as psychoanalytic, feminist, dramatistic/narrative, media-centered, and culture-centered criticism).

OK--have fun commenting on today's lecture.

Rhetorical Criticism and the Law: questions of form and content

The readings for the next two weeks deal with the concept of law as a collection of rhetorical messages. This is very different from the conventional, and more metaphysical, understanding of the law.

Put another way, traditional legal studies address the CONTENT of the law, while a rhetorical study of law concentrates on FORM as well as content. The distinction between form and content (and the ultimately problematic nature of that distinction) is addressed in this reading from the syllabus. Two particularly important passages from this section are:

First, the notion that, even though we divide form and content, they are inseparable and mutually dependent:

The divide between form and content is always an artificial and conditional one, since ultimately attempting to make this division reveals the fundamentally indivisible nature of verbal expression and ideas. For example, when students were asked to perform translations as rhetorical exercises, they analyzed their compositions in terms of approximations, since it is impossible to completely capture the meaning and effect of a thought expressed in any terms other than its original words.

Second, that the WAY we say something ultimately influences the content itself:

...rhetoricians divided form and content not to place content above form, but to highlight the interdependence of language and meaning, argument and ornament, thought and its expression. It means that linguistic forms are not merely instrumental, but fundamental—not only to persuasion, but to thought itself.

In this class, we are trying to discover the various ways in which the phrasing, imagery, and unspoken assumptions in the utterances and texts that constitute "The Law" ultimately influence the way "audiences" (judges, advocates, the people) interpret and act upon laws.

Gerald Wetlaufer, in your assigned article "Rhetoric and its Denial in Legal Discourse," lists the following "rhetorical" commitments that participants in the field of law share. He lists commitments:

--to a certain kind of toughmindedness and rigor
--to relevance and orderliness in discourse
--to objectivity
--to clarity and logic
--to binary judgment
--to the closure of controversies
--to hierarchy and authority
--to the impersonal voice
--to the one right (or best) answer to questions
--to the one true (or best) meaning of texts

What I would like to suggest, and challenge you to think about, is the way in which these are commitments of TONE and not merely commitments of content. In other words, part of the rhetorical strategy of a legal advocate is not merely to BE "tough-minded" or "objective," but to SOUND "tough-minded" and "objective."

Wetlaufer has a lot more to say, which we'll address soon enough. In the meantime, you should also read the Levinson and Balkin article, comparing law to "music and other performing arts." A pat on the back and shameless praise will go to the first person who can answer the authors' question: "Why should any lawyer care in the slightest about the debates occurring in the alien field of music?"

First Response Paper

The first response paper is due one week from today. You may email it to me, or you can bring a hard copy to class on Thursday.

The paper should be 5-7 pages long. You needn't include a cover sheet; just have your name at the top of the first page.

1. At a minimum, the paper should be well-written, well-edited, and free from any technical errors.

2. I don't care WHAT citation method you use, but you should use SOME kind of method (APA, MLA, Chicago, etc).

3. The paper should advance a central thesis as the answer to the question you choose, and the paper should be centered around providing support for the answer to that question.

I will happily examine drafts of the paper up to 24 hours before it is due. Pragmatically, this means you should have any drafts to me by no later than 5:00 PM on Wednesday.

You may choose from one of the following questions. If you don't like any of these questions and want to suggest one of your own, I need to approve it as soon as possible--no later than Monday.

Questions:

1. Identify and describe at least three aspects of Aristotle's treatment of rhetoric that are still relevant today. Explain their contemporary relevance using recent, well-developed examples.

2. Aristotle writes that "things that are true and things that are just have a natural tendency to prevail over their opposites..." Do you agree or disagree with this claim? Support your answer using relevant, well-developed examples.

3. We discussed in class how the need for rhetoric/persuasion arises from the fundamental uncertainty of the human condition. What is the relationship between epistemological uncertainty and the adversarial system of justice in the law? (This wikipedia entry may be helpful in describing and assessing the adversarial system of justice).

Notes on Aristotle's Rhetoric

Background:

Plato’s vision of the world and humanity=pessimistic, hierarchical

Aristotle’s vision, as articulated in The Politics=optimistic, inclusive.

Aristotle wrote that the highest political good was a community that included everyone (all citizens).

Plato believed rhetoric was a malevolent kind of magic, capable of manipulating people and stirring up the masses to destructive behavior.
--opposition to the Sophists as relativists
--set up an opposition between philosophy on one side, poetry and rhetoric on the other
--Plato championed the dialectic as a method of philosophical inquiry, didn’t believe it was rhetorical; rather, he believed it teased out the truth
--but since Plato’s ideal society was not a democracy, and since all important decisions were to be made by philosophers, there was no need to “persuade,” only to reach the already-existing, transcendent understanding.

Aristotle didn’t believe truth was “up there” or “out there,” but instead was in the things themselves, capable of being brought out by study of those things. Likewise, the political community was to be inclusive.

This meant that persuasion was necessary. Rhetoric, says Aristotle, is a counterpart to the dialectic.

Thus, everyone uses both; in Book One, he writes: “all men make use, more or less, of both; for to a certain extent all men attempt to discuss statements and to maintain them, to defend themselves and to attack others. Ordinary people do this either at random or through practice and from acquired habit.”

Why is rhetoric important?

Aristotle says:

Rhetoric is useful (1) because things that are true and things that are just have a natural tendency to prevail over their opposites, so that if the decisions of judges are not what they ought to be, the defeat must be due to the speakers themselves, and they must be blamed accordingly. Moreover, (2) before some audiences not even the possession of the exactest knowledge will make it easy for what we say to produce conviction. For argument based on knowledge implies instruction, and there are people whom one cannot instruct. Here, then, we must use, as our modes of persuasion and argument, notions possessed by everybody, as we observed in the Topics when dealing with the way to handle a popular audience. Further, (3) we must be able to employ persuasion, just as strict reasoning can be employed, on opposite sides of a question, not in order that we may in practice employ it in both ways (for we must not make people believe what is wrong), but in order that we may see clearly what the facts are, and that, if another man argues unfairly, we on our part may be able to confute him. No other of the arts draws opposite conclusions: dialectic and rhetoric alone do this. Both these arts draw opposite conclusions impartially. Nevertheless, the underlying facts do not lend themselves equally well to the contrary views. No; things that are true and things that are better are, by their nature, practically always easier to prove and easier to believe in. Again, (4) it is absurd to hold that a man ought to be ashamed of being unable to defend himself with his limbs, but not of being unable to defend himself with speech and reason, when the use of rational speech is more distinctive of a human being than the use of his limbs. And if it be objected that one who uses such power of speech unjustly might do great harm, that is a charge which may be made in common against all good things except virtue, and above all against the things that are most useful, as strength, health, wealth, generalship. A man can confer the greatest of benefits by a right use of these, and inflict the greatest of injuries by using them wrongly.

Thus:
First, truth tends to prevail over untruth. Is this true?

Second, different people are reachable, instructable, in different ways (and some not at all)

Third, we must understand both sides of an issue, be able to consider opposing arguments.

Fourth, it is right to use speech and reason to defend ourselves (and, in answer to Plato, speech and reason are no more dangerous than any other things we commonly hold as good, such as strength, health, wealth, or military skills).

Philosophy as certainty, rhetoric as living with uncertainty

We discussed this in class last Thursday. Once we accept the fact that it's impossible to have perfect knowledge, then persuasion, and hence rhetoric, is a necessary part of human existence.

Think of this in application to legal rhetoric: If it were possible to know with exact and precise certainty the truth of a defendant's guilt or innocence, no trial would be necessary--we wouldn't need judges or juries. We could just feed all the facts into a computer and the computer could make the right decision.

The Definition of “Rhetoric”

“Rhetoric may be defined as the faculty of observing in any given case the available means of persuasion.”

This is not to say that the rhetorician will be able to convince under all circumstances. Rather he is in a similar situation as the physician: the latter has a complete grasp of his art only if he neglects nothing which might heal his patient, though he is not able to heal every patient. Similarly, the rhetorician has a complete grasp of his method, if he discovers the available means of persuasion, though he is not able to convince everybody.

The debate about whether rhetoric is an art or a science continues today, in the form of conflicts between those who study communication quantitatively, and those who study it through analysis of rhetorical artifacts. The latter form of study is always inexact.

Kinds of Rhetoric:

Name, types, time-frame, ends:

POLITICAL (deliberative): Exhortation and dehortation, aimed to the future, expediency and inexpediency
FORENSIC (legal): Accusation and defense, aimed to past, justice and injustice
EPIDEICTIC (ceremonial): Praise and censure, aimed to present, honor and dishonor

ARISTOTLE ON FORENSIC RHETORIC: Main reading begins at Book One Chapter 10.

“Injustice” for Aristotle, is “voluntarily causing injury contrary to law.”

Accusation and Defense:

--motives of unjust acts

--state of mind of those who act unjustly

--they think it can be done by them
--their action will be undiscovered or unpunished
--the punishment will be less than the profit
--they will escape due to eloquence, business sense, trial experience, influence, wealth
--or their friends have the above qualities
--if they are friends of those wronged or of the judges
--if character out of keeping with charges
--if acts are done openly
--if acts are of such a nature no one would be likely to attempt them
--if they have either no enemy or many enemies
--they have ways to conceal stolen property or means of disposal
--they can get the trial put off or corrupt the judges
--can avoid the fine or have nothing to lose
--profit is large and immediate while punishment is remote
--there is no punishment equal to the advantages
--acts are real gains and punishmnet merely disgrace
--unjust acts are creditable (i.e. vengeance) and punishment is exile or financial loss
--they have often escaped punishment
--or have often been unsuccessful
--hope for pleasure or profit immediately (intemperate)
--or the pain is immediate but the pleasure lasting (temperate)
--acted by chance rather than intent
--hope to obtain indulgence
--need whether necessary or superfluous
--highly esteemed will not be suspected
--or will be no more suspected than they are already

--character of those exposed to injustice

All of these require speculative, inferential, descriptive rhetoric, rather than any kind of exact science. Moreover, all these are EMPIRICAL in nature—in order to know what injustice is, we have to see these particular acts. And more importantly, in order to convince others (judges, jury) that those acts are unjust, we must describe them in a certain way.

TOPOI/COMMON PLACES

according to Aristotle, the places in the mind where one finds material for a speech.

topos (Greek) = locus (Latin) = place
topoi = loci = places
loci communes (Latin) = common places

"Topoi are usually constellations of motifs, themes, images, or arguments that are common within the texts of a a specific age and place (say, enlightenment, post-war Germany) or a specific discourse (say, anti-feminism, neo-conservatism). They can but don't have to be cliches."

topics are "commonplaces," that is, concepts, subjects or maxims that are widely shared in the culture or are associated with the wisdom that has been distilled into common sense.

In forensic (legal) rhetoric, there are certain topoi:

Laws
Witnesses
Contracts
Torture
Oaths

Read all this in 1:15

Some questions for reflection:

--Do you agree more with Plato, or Aristotle, on the nature of truth and the resulting ideal society?

--Do you agree that, all else being equal, truth tends to triumph over untruth?

--Would it ever be possible to try a criminal defendant and return a verdict with absolute certainty?

Greetings and Salutations!

This is the web journal for the University of Wyoming course, COJO 4150: Legal Communication. Here we will post lecture notes, links to relevant articles, and commentary about rhetorical theory and its application to legal communication.

The syllabus for the course can be found here on the COJO department syllabi page.

The readings for the first two weeks include the following:

Aristotle's Rhetoric (alternate site here)

This commentary on Aristotle is very helpful.

Introduction to rhetorical theory and criticism:
What is Rhetoric?
General Rhetorical Strategies
Content and Form
The Rhetorical Situation

Legal Rhetoric

My next post will be a version of last Thursday's lecture notes.