Classical Legal Rhetoric
Bill Long 12/3/05
Understanding a "Lost" Literature
I so much wanted to appreciate and embrace Michael H. Frost's recently-released 150-page Introduction to Classical Legal Rhetoric: A Lost Heritage (Hants, England; and Burlington, VT: Ashgate, 2005). I so much wanted to make the first line of this review a kind of "Eureka!" statement--that I had finally found someone who understood what I had believed ever since I set my foot inside a law school--that the classical rhetorical tradition is of crucial importance to understand the nature of legal argument. Indeed, I think Frost is mightily committed to the importance of that tradition for legal writing today. But, unfortunately, he has written an introduction which will do the precise opposite of what good introductions are supposed to do, which is to entice you to a deeper study of the field. I am afraid that if anyone ends up reading this book that they will leave with the thought that the ancient texts are difficult and almost inaccessible tomes which really don't need to be dusted off to be a good legal practitioner today. In this and the next essay I want to explain why I had so much hoped to find in Frost's book an eloquent protreptic for lawyers to study the ancient rhetorical tradition. Thus, I will begin autobiographically before examining a few points in his book.
An Autobiographical Word
When I entered law in 1996 after 25-years in the field of the history of religions, I thought that I might forever have to leave my classical rhetorical knowledge behind me. I had blazed new trails of sorts in my 1982 Brown University dissertation on "The Trial of Paul in the Book of Acts" by looking at Paul's defense speeches in Acts from the perspective of advice given by ancient rhetoricians on how to conduct defense speeches. At the time law was not even a gleam in my eye; I was interested in the classical rhetorical tradition because I wanted to understand the literary nature of the Acts of the Apostles as I tried to come up with a theory of what Germans called the Paulusbild in Acts. I made some suggestions in that dissertation that were probably appropriate for a 29 year-old that knew very little, and I have never gone back to the subject in a systematic way since then. But I always secretly wanted to find someone who really understood and felt the importance of the classical rhetorical tradition for good speech and writing today.
When I got into law in 1996 there were so many things I thought were wanting in the study of law that I found it difficult to concentrate on the curriculum that was taught. I desired not simply to understand a definition of the fee simple absolute or fee tail, but to understand the history of the fee tail in the 15th century, for example. I desired not simply to learn that there was a tort called "intentional infliction of emotional distress" but to understand the social situation that produced the tort in the post-WWII world and then to study that world so fully that other causes of action that I was simply taught to believe as "true" or "given" might be put in their historical context (such as doctrines of strict liability or the meaning of the Uniform Commercial Code). And, then, I wanted to understand why it was that no one was studying the classical rhetorical tradition, since it had its birth in the law courts of ancient Greece around 2500 years ago.
Coming to Myself
When I came to myself in 1996 and was looking for someone to exposit the classical rhetorical tradition from the perspective of law, I was coming to the subject with a different level of maturity than I approached the field in 1982. Then, I was looking simply to understand the "big four" ancient rhetoricans in their contexts and to glean from their words advice on how to give defense speeches.*
[* The "big four" are Aristotle, Cicero, Quintilian and the author of the anonymous Rhetorica ad Herennium].
But in the intervening 14 years I developed a deep appreciation and commitment to historical scholarship. Sometimes you need a few years on you to understand what historical work is all about, and I think I needed a few more years to develop this understanding. So, the kind of treatment of rhetoric I really wanted in 1996 was one which would place each of the classic authors in his time, give detailed attention to the influences on him as he shaped his work, review the structure and leading points of his work, give copious examples of how each rhetorical device "worked" and then conclude with the way that the classical tradition was refracted through the lenses of the medieval curriculum and through 17th century England, where it had a renaissance. That is, I was looking for someone in law not simply to tell me that the tradition existed and that there were some significant people who wrote treatises on rhetoric, but to give an "inside out" understanding of the ancient rhetorical tradition from the perspective of law.
In fact, I think I was looking for a work that combined the best in classical, historical, literary, philosophical and legal scholarship. Alas, I think my longings exceed any realistic expectation of what any one human being can produce, but I still had them.
So these, admittedly, were my hopes when I opened Mr. Frost's slender work introducing the classical rhetorical tradition to law students. Here is what I found.
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