classical rhetorical tradition and classical legal rhetoric and justic scalia and united states v. virginia

Frost's work, Introduction to Classical Legal Rhetoric: A Lost Tradition (2005) consists of seven chapters. After an overview of the history of the Graeco-Roman rhetorical tradition in the West, he looks at classical topics in the field from the perspective of contemporary legal practice. That is, he devotes subsequent chapters to (1) the "topics of invention" (which were studied under the first "canon" of classical rhetoric--invention); (2) the organization of the argument (covered in the classical notion of "arrangement"); (3) ethos and pathos (two of the three subjects that classical rhetoricians urged students to understand about human nature); (4) metaphoric reasoning (dealing mostly with "style"); (5) forensic style; and (6) the rhetoric of dissent. He gives illustrations in some of his chapters about the way that modern authors use techniques that would have been recognized by ancient rhetoricians, such as when he examines Justice Scalia's dissent at length in US v. Virginia in his last chapter. But what he never really does is to bring us into the nuts and bolts of the classical tradition, into an appreciation of how that tradition used language, into the riveting power of that tradition.

He has, in fact, reduced the ancient rhetorical tradition to some suggestions on how to construct arguments rather than as a living method of instantiating human experience and emotion in speech. In so doing he has, as it were, shown us a human skeleton and pointed out a few bones and told us that he has just described a human being. There is, however, no breath of life, no nephesh hayah, that animates his treatment.

An Example

One could illustrate my point from any of his chapters, but his chapter on "Brief Rhetoric: The Organization of Argument" is as good as any to show his method. He is interested in this chapter in understanding what goes into constructing a legal brief in American law today and how good brief-writing practice might be informed by advice of ancient rhetoricians. He begins by citing US Supreme Court rules 14 and 24 on the content of briefs. Then he says: "In all important respects, these organizational requirements are the same as those first formulated in the fifth century B.C...." (44). This provides him his entree into the parts of a speech, according to the classical tradition: (1) questions presented; (2) statement of the case; (3) argument summary; (4) argument; and (5) conclusion. Of course Frost, as he continues his treatment, gives the classical terminology for each of these (exordium, narratio, partitio, confirmatio, peroratio) but the remainder of the chapter is taken up with how the advice classical rhetoricians give about constructing a speech is really similar to advice given in modern books on how to put together an argument. He opines: "Classical rhetoric manuals, modern legal writing handbooks, and US Supreme Court rules give remarkably consistent advice about how to organize arguments" (47).

This "gee whiz" type of conclusion does two things: first it actually dissuades a person from looking to the ancient rhetoricians (after all, if they just say the same thing as modern books, why take the time to slog through the ancient stuff?), and second, it ignores the richness of the ancient tradition. That is, in order to understand the narratio, for example, wouldn't it have been helpful to be brought right into Cicero's courtroom and hear him narrate the facts of the case against Cataline? We would not only learn something about ancient Roman law and history, but would get a window into Cicero, his language, his times, his way of using language for rhetorical/legal argument. The dull advice on what a narratio is (an account "of the facts and...a base and foundation for the establishment of belief"--from De Partitione Oratoria) is taken by Frost to be sufficient to make his point. Thus, we lose the living voice and are just left with scholastic words.

Metaphor

I'll close this review by dipping into one other chapter, his treatment of Greco-Roman analysis of metaphoric reasoning (ch. 5). A footnote from Aristotle tucked deeply into his treatment, to the effect that the ability to create metaphors was the "surest sign of originality" (106, n. 79), unfortunately was not the guide for his chapter. He spends a lot of time trying to show that the ancient rhetoricians thought metaphors were important in order to enhance the logos, ethos and pathos of the speech, but rarely if ever does he regale us with metaphors, the subject of the chapter. It is like giving a lecture on preparation of a most delicious meal and then, when the students are salivating, telling them that they ought to put these insights into practice in their own cooking. Is that the way culinary school works? Of course not! After you see a demonstration or hear a lecture on spices or herbs, you dive in and try your hand at it right away. You "taste" your learning. But all there is here in the chapter on metaphor are statements such as (from Aristotle), "the charm of metaphor, and with it that of ornament in general, is primarily cognitive" (88) or (from Quintilian), "[m]etaphor is designed to move the feelings" (89). Duh. But take us into the workshop of the metaphor-maker and show us how to make them, Professor Frost. Show us how metaphor moves people. Give us many examples of their use. Bring learning before our eyes, please.

And then, I can't finish this review without noting a few of his comments about use of metaphors in modern judicial opinions. He begins his chapter by quoting Justice Benjamin Cardozo to the effect that "[m]etaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it" (85). He also later cites Justice OW Holmes, Jr. on the inadvisability and dangers of metaphors in judicial opinions (106, n. 91). But what he doesn't mention is that Cardozo and Holmes are remembered today in large part precisely because they used metaphor effectively. One example of each is all I have space for. From Cardozo's concurrence in Schechter (1935): "The delegated power of legislation which has found expression in this code is not canalized within banks that keep it from overflowing. It is unconfined and vagrant..." What fun! And, what eloquence. And then, from Holmes: "A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used." Don't you just want to read more of these guys?

Conclusion

So, I still am in love with the classical rhetorical tradition and am interested in bringing its living character into the courtroom today. I am sorry we don't yet have a sure guide to show us how to do so.

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