KRISTEN K. TISCIONE JUNE 2014 The History of Rhetoric

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

Logic Rhetoric the invention and arrangement of ideas that lead to truth (the philosopher) the invention, arrangement, and expression of ideas that lead to probable truth (the politician, lawyer)

The Trivium GrammarLogicRhetoric 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)  Literature – (how to read)  Composition (how to write) Speaking (Speech )  Rhetorical criticism (how to evaluate speech)  Speech (how to speak)

Impact on legal education Doctrinal – invention Courses arrangement true principles of law Legal – expression Writing Courses + invention arrangement (theory) (practice) scientific case method

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: theory and practice are inseparable –  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

KIRSTEN K. DAVIS JUNE 2014 Using Rhetorical Theory and Method to Study Legal Communication

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:

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.

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

Production (Instructive) Reception (Instructive, Critical) Construct messages more consciously. Write better. Speak better. Teach better. Receive messages more consciously. As a lawyer: read/listen better. As a scholar/ “special citizen”: critically assess legal messages. Two Main Areas for Using Rhetorical Theory and Method to Analyze Legal Communication

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 (method) the scholar will take? 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

Generally Method Looking for how symbols “hang together” “What goes with what” Key symbols  Frequency  Intensity Associational Clusters  Proximity  Cause/effect  Connectedness  Opposing terms Dramatism: Cluster Analysis Action is motivated. Language is symbolic action. Symbol choices reveal motivation.

The idea The Pentad 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. Dramatism: Pentadic Analysis

Scene Determines Act Act Defines Agent 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. 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. Pentadic Ratios

Generally Metaphor Parts The way in which we know our reality through language. An argument for a particular view of the world. The “vehicle” frames the “tenor.” Metaphor Analysis Tenor: Abortion Vehicle: Terrorism abortion-rhetoric/

Julie A. Oseid University of St. Thomas School of Law Minneapolis, MN

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...