Jan 27, 2016
And today we have news: ast week something finally happened, something I always dreamed of, ever since I was 18 years old—I got called up for jury duty. I’m thrilled to be able to do my civic duty, not just because since I was 18 years old I’ve been mainlining old episodes of Law and Order, but also because because it gives me a front row seat to the world of forsensic rhetoric. Today on Mere rhetoric, we’re going to talk about the illustrious history of forsensic rhetoric. But first just a reminder that you can subscribe to this podcast on iTunes, or follow us on twitter at mererhetoricked (that’s mererhetoric followed by a ked) or email us at email@example.com.
Ok, so when we think about rhetoric, we often think of it as a foil to philosophy. Something completely unrelated to everyday life, abstract and smartsy-artsy. But for the ancient greeks, rhetoric was a cold, hard necessity. The Ancient Greeks of around 467 BC were a litigious group, constantly hauling each other into court. It was one of the great things about having such awell developed government, that you could drag your neighbor into court and get some money out of them. But in ancient Greece you didn’t have a professional corp of lawyers to fight your battles for you. If you were going to sue your neighbor, you were suing your neighbor and you had to make a case and that meant you had to give a good argument.
Rhetoric historian George A Kennedy even claims that rhetoric as
an art arose because of this legal imperative. He writes, "Citizens
found themselves involved in litigation... and
were forced to take up their own cases before the courts. A few
clever Sicilians developed
simple techniques for effective presentation and argumentation in
the law courts and taught them to others” "Anyone reading the
classical rhetorics soon discovers that the branch of rhetoric that
received the most attention was the judicial, the
oratory of the courtroom. Litigations in court in Greece and Rome
were an extremely common experience for even the ordinary free
citizen--usually the male head of a household--and it was a rare
citizen who did not go to court at least a half a dozen times
during the course of his adult life. Moreover, the ordinary citizen
was often expected to serve as his own advocate before a judge or
jury. The ordinary citizen did not possess the comprehensive
knowledge of the law and its technicalities that the professional
lawyer did, but it was greatly to his advantage to have a general
knowledge of the strategies of defense and prosecution. As a result
the schools of rhetoric did a flourishing business in training the
layperson to defend himself in court or to prosecute an offending
(Edward P.J. Corbett and Robert J. Connors
and so rhetoric came to the Greeks. Teaching other people how to argue their own cases was the first form of rhetorical education.
Eventually, the greeks came up with the idea of the logographer. So since you have to give your own case, the courts allowed you to get help from one and only one friend or relative….or professional ringer. The logographer would hear your case and write a speech written in your voice and then you would memorize the speech so that you could present it in court. People who knew you well might be surprised at how elquant and wise you sounded, but it might help you win the case after all.
Some of the best rhetoricians of the ancient world did stints as logographers. Demosthenes, the rabble-rouser who almost toppled Alexander the Great, was a logographer, as was the great rhetoric teacher Isocrates. Lysias, the orartor who inspired Plato’s Phaedrus, was a logographer, too, and Antiphon. So logography has a long and nobel tradition, even though it was, essentially like getting your speech written by a professional ringer. Arguments were made in the ancient world, like now, that there was something unfair about the way that rich people could buy the best defense. Many of the ancient complaints against rhetoric, like those made by Socrates in the gorgia, were against logographer’s ability to write as good of an argument against a position as for it. When a logographer could be hired for the defense or the prosecution, they weren’t perceived as sincere as someone who was arguing in court about their own life, property and freedom.
And what might go into Athenian forensic thetoric? What were those logographers writing? Well, to understand that, you have to understand a few things about Law and Order: Athens. First, this was a trial by jury, but it wasn’t necessary people like me getting called up for jury selection. People volunteered to be on a jury, because you did get paid. It wasn’t enough to volunteer, though you had to be selected. But sometimes it wasn’t necessarily selective. There could be hundreds of jurors on a jury—up to 500! And the jury had a lot of power—the judge didn’t decide the trial outcome at all, only the jury. So in appealing to a jury, you were appealing to a large group of people, a lot like making a political speech, really. In Athenian justice, reputation meant a lot to these juries, so many of the witnesses were just good and/or famous people brought it in say that they did or didn’t think the plaintiff did it—regardless of whether they were actually an eyewitness. It also helped to have some graphic description of the wrong done and make appeals to the common man—these jurors did want to be entertained while they decided after all.
Some great early pieces of rhetoric were, in fact, legal speeches. In some cases we don’t know whether these speeches were actually ever used in court or if they were used for demonstrating a logographer or rhetoric teacher’s ability. For example, Isocrates wrote “real” forensic pieces like “Against Lochites, Aegineticus, Against Euthynus, Trapeziticus, Span of Horses, and Callimachus.” Even though he always said that he wasn’t fit for the court. He may have been working as a logographer for someone else, or they might not have been cases that were actually tried. Some of these court cases are pretty crazy, showing how you didn’t have to be famous to sue someone. The speech against Lochites - where "a man of the people" irX1790vs is the speaker - exhibits much rhetorical skill. The speech about the horses concerns An Athenian citizen had complained that Alcibiades had robbed him of a team of four horses, and sues the statesman's son and namesake (who is the speaker) for their value.
Isocrates also wrote faux forencis speeches.“Against the Sophists” and “Antidosis” defend his character and profession against imaginary lawsuits. Forencis examples were common for a rhetorician to show off his capacities in what kind of defendents he could write for and one popular form of rhetoric was to write a defense of someone who isn’t actually going to see the inside of a court room, or to write a legal argument for a case long settled. Students of rhetoric, too, engaged in a lot of forensic rhetoric. The progymnasmata, or series of exercises used in training a young rhetor, included crucial steps of defending or protesting a law and writing definitions of what is and isn’t just. Forensic rhetoric drove rhetorical education forward.
Eventually legal speeches became a clear genre of rhetoric, one of several. By the time Aristotle writes On Rhetoric, legal, or forsencic rhetoric is, along with deliberartive and epideictic one of the three major categories of rhetoric that Artistotle classifies. Aristotle spends 6 chapter discussing forensic rhetoric. At the beginning he sets up the primary “means or persuasion” in forensic rhetoric. He suggests 3 things need to be considered: “1. For what purposes persons do wrong 2. How these persons are mentally disposed 3. What kind of persons they wrong and what these persons are like.” He also explores abstract ideas like what kind of wrongs are being done when someone breaks the law, and The Koinon of Degree of Magnitude"which states: "A wrong is greater insofar as it is caused by greater injustice. Thus the least wrong can sometimes be the greatest.” Pretty heady stuff.
If greeks were good at setting up legal rhetoric, the Romans took it to a new level. Romans love laws. Even more than laws, they love talking about laws: which ones are just, which ones are misinterpreted, which ones are being faunted. Arguably, arguing was their greatest art. One of the greasted of these contentious legal types of Cicero. In The orator Cicero emphasizes the importance of learning all of the ins and outs of the law if you want to become a rhetor, because it was assumed that you would be involved in the court system on one side or the other. Again, this was all personal—the idea of separate lawyers who represent you in court is only a few hundred years old.
So what does this have to do with what I’ll expect to see when I show up for jury duty? Well, I don’t think I’ll see the defendant and plantiff respresenting themselves, although they might, especially if this is one of those sweet small-claims deals. If not, there will be lawyers who rae taking the case not because of any great affection for the parties, but because they’re getting paid. And they will be making speeches, not because they have any great passion for it, but because they’re professionals good at what they do. Acutaly, if you think about the complaints that people make against lawyers in our society—that they’re insincere and slimy and only after the money—those are the same complainst people had of logographers and rhetors. The legal arguments I’ll hear will almost certainly invoke ideas of wrongdoing and talk about the character of the parties involved. And I and my five or eleven fellow jurors will get a say in justice, just like the hundreds of Athenian jurors back in the days of Isocrates.