The History of Rhetoric
KRISTEN K. TISCIONE
JUNE 2014
Rhetoric is the art of “discovering in the
particular case what are the available means of
persuasion.”
— Aristotle, RHETORIC (c. 333 BCE)
Logic
Rhetoric
the invention and
arrangement of ideas
that
lead to truth
the invention,
arrangement, and
expression of ideas
that lead to probable
truth
(the philosopher)
(the politician, lawyer)
The Trivium
Grammar
The art of inventing
and combining symbols
to communicate
Logic
The art of
thinking
Rhetoric
The art of
communication
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
(theory)
scientific
case
method
true principles of law
Legal –
Writing
Courses
expression +
invention
arrangement
(practice)
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
Constituencies
Judges
Advocates
Parties
Scholars
LAW
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
Using Rhetorical Theory and
Method to Study Legal
Communication
KIRSTEN K. DAVIS
JUNE 2014
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:
http://www.americanrhetoric.com/rhetoricdefinitions.htm
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.
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.
Symbol
(of Law)
[Legal]
Context and
Constraints
Need
Speaker
Audience
Rhetorical theory is a lens
for looking at legal communication as
a rhetorical situation.
Two Main Areas for Using Rhetorical Theory and
Method to Analyze Legal Communication
Production (Instructive)
Reception (Instructive,
Critical)
 Construct messages
 Receive messages more
more consciously.
 Write better.
 Speak better.
 Teach better.
consciously.
 As a lawyer:
read/listen better.
 As a scholar/ “special
citizen”: critically
assess legal messages.
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
 Ideographic
 Metaphor
 Ideological
 Narrative
 Generative
 Fantasy Theme
 Feminist
 Dramatistic
 Sociological
 Genre
 Social Movement
Dramatism: Cluster Analysis
Generally
Method
 Looking for how symbols
 Key symbols
 Frequency
 Intensity
“hang together”
 “What goes with what”
Action is motivated.
Language is symbolic
action. Symbol choices
reveal motivation.
 Associational Clusters
 Proximity
 Cause/effect
 Connectedness
 Opposing terms
Dramatism: Pentadic Analysis
The idea
 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.
The Pentad
Pentadic Ratios
Scene Determines Act
 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.
Act Defines Agent
 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.
Metaphor Analysis
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.”
http://flowtv.org/2013/01/what%E2%80%99s-in-a-metaphorabortion-rhetoric/
Tenor: Abortion
Vehicle: Terrorism
Julie A. Oseid
University of St. Thomas
School of Law
Minneapolis, MN
jaoseid@stthomas.edu
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 . . .