We Orators
| Published date | 01 July 1990 |
| Date | 01 July 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02837.x |
REVIEW
ARTICLE
We
Orators
Peter
Goodrich*
Brian
Vickers,
In
Defence
of
Rhetoric,
Oxford: Clarendon Press, 1988, xvii and 508 pp,
pb f14.95.
‘Like exiles we wander
about
lost
in the discursive zone.”
The common law tradition, as an unwritten system
of
law, has a number of claims to
rhetorical distinctiveness. Insofar as the tradition was and to a degree remains an historically
based body of customary law, it has relied heavily both in terms
of
its structure and its
development upon the classical divisions
of
the forensic art
of
argumentation. It is not
simply that the early tradition was an
oral
narrative art, practised by professional narrators.
In a structural sense the legal tradition was based upon oratorical techniques
of
hearing,
on aural memory, advocacy or disputation and the related skills
of
dialectic or topical
argument, skills of representational speech which paid attention
to
style and gesture as
well as to content and order of presentation.2 The classical textbooks
of
common law
method
-
if one can
so
term the renaissance curricula manuals
-
were exhaustive studies
of
a fully rhetorical and oratorical art. They provided a training in ethics, in the offices
or duties of the legal orator. They provided advice on the appropriate diet, dress, deportment,
lifestyle and professional conduct
of
the la~yer.~ In more substantive terms the study
of
law was equally rhetorically structured.
The study of law began with the study
of
inventio
or sources of law, a study of the
discovery
of
topics, the starting-points,
of
legal argument. It moved subsequently to
dispositio
or distribution, the classification and ordering
of
legal argument. In studying
distribution a common lawyer was taught to distinguish the relative status of differing
sources
of
law.4
A
skilful narrative presentation of a legal cause would attend both
to
the relevance (appropriateness) of topics
as
well
as
to the proper order of their argumentative
*Department of Law, Lancaster University.
J. Habermas,
The Philosophical Discourse
of
Modernity
(Cambridge, Mass. 1987) p 186.
Particularly interesting on the auricular nature of the tradition is J.H. Baker (ed),
The Repons
of
John
Spelmun
ZZ
(London: Selden SOC., 1978) p 159 ff, where numerous instances are cited from the Year
Books of points of law that had been only improperly or partially heard. See also
M.T.
Clanchy,
From
Memory to Written Record
(London, 1979) pp 214-220 on hearing and seeing in lawcourts, and for
more general discussion
of
hearing and audience, see W. Ong,
Orality and Literacy
(London, 1982) ch 6.
On rhetoric in the legal curriculum the most informative discussions can be found in Sir John Doderidge,
The English Lawyer
(London:
I.
More, 1600); T. Wilson,
The Arre
of
Rhetorique
(London, 1553/1982);
Sir
Thomas
Elyot,
Zhe
Boke
Named the Governour
(London, 1531/1907)
pp
62-70. For recent discussions,
see R. Schoeck, ‘Lawyers and Rhetoric in Sixteenth-Century England’ in J.J. Murphy
(ed),
Renaissance
Eloquence
(California, 1983).
Also
of interest is P. Brand, ‘Courtroom and Schoolroom: The Education
of
Lawyers in England prior to 1400’ (1987) 60
Historical Research,
147-165.
TO Doderidge,
op cit,
should
be
added W. Fulbeck,
Direction
or
Preparative to the Study
of
the Laws
of
England
. .
,
useful for all gentlemen who are studious and desire to understand the customs
of
this
nation
(London: Roycroft, 1605/1651); Sir John Davies,
A
Discourse ofLaw and Lawyers
(Dublin, 1619
1876); H. Finch,
Law
or
a
Discourse Thereof in Foure Bookes
(London, 1627). The many law dictionaries,
‘expositions,’ ‘collections’ or ‘interpreters,’ books of
Entrees
and of statutes in English, associated
particularly with Cowell, the Rastells and with Sir Edward Coke, are
all
also, properly speaking, student
texts and contain considerable elements of advice. For later examples, see R. North,
A
Discourse
on
the Study
of
rhe Laws
(London, n.d.11824) and W. Phillips,
Studii Legalis Ratio or Directions
for
the
Study
of
the Law
(London: Kirkrnan, 1667).
As
made particularly clear in Finch,
op cit
Booke
1.
See further, North,
op
at
p 24ff
(on
comonplacing),
and
A.
Fraunce,
The Lawyer’s Logike
(London: W. How, 1588).
546
The
Modern Law Review
53:4
July 1990 0026-7961
July
19901
We
Orators
presentation. It was through the study of topics and of their relation to genre and audience
that questions of adequacy of proof could be competently addressed. Subsequent sections
of the cumculum would examine the language of law, analysing questions of etymology
or notation as well as broader questions of style or
elocutio,
of the tropes and figures
most conducive
to
effective legal
lea ding.^
Finally, though by no means least, there was
the study of
memoriu
or memory, the rhetorical analysis of the development, the retention
and the renewal of an immemorial and
so
unwritten tradition which eventually became
the contemporary system of precedent, that of the systematics of repetition, of habitual
memory turned to liturgy.6
It is clear also from the early curricula literature that in classical common law terms
rhetoric and substantive law, or simply practice, were intimately linked. To take but one
striking doctrinal example, conversations of men or the phrases of everyday speech, ‘deduced
from the ordinary manner of conference by talk among men’ were an explicit source of
law
.’
More specifically a rhetorically available oral tradition was recognised repeatedly
as a significant general
locus communis
or topic of legal invention.
So
too the interpretative
development of law was based upon the rhetorical arts of memory and analogy, recollection
and style.
To
make an argument memorable and a resemblance striking requires
a
vivid
use of figures of speech. To this day the art of legal memory is perpetuated through the
development of law by the use of striking figures, often figures of powerful visual or
imagistic force, classically termed figures of simulation
-
energeiu
or
illustrutio
-
which
Quntilian in particular had noted for their argumentative power as well as for their hold
on memory. Time immemorial
(metulepsis),
the man on the Clapham Omnibus
@rosopopoeiu),
simple reasonableness
@urudeigma
),
the reasonable woman
@rosogruphiu),
the foresight due from a careful neighbour
(synecdoche),
the intention
of Parliament
(semocinatio),
fundamental breach
(cutuchresis)
of a contractual relation,
legitimate expectations
(metaphor)
of administrative action,
tests
of proportionality
(gnome),
fiduciary relations
@aradiegesis)
or opening floodgates
(hypofyposis)
are but some recent
or continuing figures
to
have dominated the interpretative development of the common
law. More pedantically, every use of analogy in legal argument is an employment of
rhetorical forms and
so
too every attempt at persuasion made from, or from before, the
bench benefits either implicitly or explicitly from rules of rhetorical felicity.
Using the vehicle of a recent and monumental defence of rhetoric by the distinguished
renaissance scholar Brian Vickers, the present essay will attempt to address the topical
issue of whether or not the classical humanistic discipline of rhetoric should be revived
as an element of the legal curriculum. The issue has affected all the disciplines and rhetoric
Aristotle,
Rhetoric
(Cambridge,
1909)
1354 at 5-7 gives advice
on
not travelling out of record and not
offering emotive
or
irrelevant proofs, which advice is central to the scholastic tradition and to the Ramist
revival of a dialectical rhetoric. See, for example, P. Ramus,
The Logike
(London,
1574) 9-10,
‘is he
not worthy to be mocked of all men
.
. .
(whom) asked
of
contracts or obligations, answers of liberty
or
bondage.’ The later oratorical tradition saw the lawyer as
actor
(from
actiones)
whose very specific
intent was that of appealing to the affections of his audience, as Cicero,
De Znventione
1.42.78, 1.52.98
and Quintilian,
Znrtinrtio
Oratio
9.2.26.
Later authors frequently listed figures conducive to legal persuasion,
as Richard Sherry,
A Treatise
of
Schemes and Tropes
(London,
1550)
fol
D
vii
b
(figures of sentence),
Puttenham,
The Ane
of
English Poesie
(London,
1589)
(listing sensable figures and particularly those
of sententiousness
as,
for example,
(19O)paranalogiu
‘a figure of admittance much
used
by English pleaders
in Starchamber and Chancery!’)
The advice
on
memory is extensive and
can
be found both in treatises
on
rhetoric and on dialectic. As
regards the latter the entire organisation of the art of argumentation is rhetorical in that ‘method works
for all sciences and arts that the auditor may the better retain thy sayings’
(P.
Ramus,
op
cit
p 13). Classic
discussions can also be found in T. Wilson,
Ane
of
Rhetorique, op
cit
p
422-24,
and Doderidge,
op
cit,
for whom memory is the ‘storehouse’ of all
our
understanding, ‘signaturn rerum in mentum vestigium,’
the character of things imprinted in
our
mind. It is divided according to topics and subdivided by Doderidge
into
actus memorandi
and
acrus reminiscendi,
respectively the representation of the past and the discourse
of memory.
Doderidge,
op cit
at p
162-63.
547
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