LLL III: Rhetoric’s constitutive role and logic’s rightful one

This post is the third in a series. The first post explains how I’ve excerpted these posts from one of my PhD prelim exams and introduces the questions I want to discuss. The second addresses a problem in legal theory—exemplary reasoning—and one with it—its failure to distinguish when it’s attempting to be explanatory and when normative. This post might make a lot more sense if you start with the earlier ones.

Rhetorical principles constitute the law, and nowhere is that more evident than in the courts’ rules of procedure. Hermagoras of Temnos, writing in the first or second century BCE, set out a model of procedure for legal disputes, known as stasis theory, after the stases, or standing points, it identified (Nadeau, 1964). His work was popular in the classical era—it was an important influence on Cicero—but it has not survived. A more elaborate version survives in the works of Hermogenes of Tarsus, writing three centuries later. Hermagoras, divided the questions before an adjudicator into four kinds:

  • Stasis of conjecture: What were the facts? What happened?
  • Stasis of definition: What are the elements of the offence? Do the facts satisfy those elements?
  • Stasis of Quality: What are the defendant’s excuses, if any? Self-defense or some other justification?
  • Stasis of objection: Should this matter be before this tribunal? Are there other procedural problems?

In Hermogenes’ conception, these were to be taken up in this order. No question later in the list was to be taken up before the earlier questions had been settled.

The contemporary rules of procedure embody these stases perfectly, but they change the order, and rhetoric helps to explain why. For example, the Federal Rules of Civil Procedure require that the plaintiff in a case must (a) plead facts; (b) make a claim that the law recognizes, which would be supported by the facts pled; and (c) assert that the court has jurisdiction over the matter. But the case does not “begin” with the proof of plaintiff’s alleged facts and it does not end with a consideration of jurisdiction. Under Rule 12 (g), the court may dismiss a case at any time if it determines it does not have jurisdiction over the matter (stasis of objection, the last of Hermagoras’). Even before responding to the plaintiff’s allegations, the defendant has the opportunity to move for the case to be dismissed under Rule 12(b), for “failure to state a claim upon which relief can be granted.” In short, this means that even if all of plaintiff’s allegations are taken as true, they would not constitute an offense (stasis of definition, second of Hermagora’s). If and when the defendant does respond to the allegations in the complaint, it can dispute the facts pled by the plaintiff (stasis of conjecture) and assert facts constituting legal defenses (stasis of conjecture and quality).

The stases of Hermagoras are intact, though reordered. The reordering represents a response to a sort of rhetorical exigence, however. In contemporary litigation, the most expensive activity is the gathering of facts (“discovery”) and the proving of them, usually via a trial. By placing the stases of objection and definition first, the court assures many cases will be disposed of quickly, with minimal institutional expense. Rhetoric plays an important role in structuring inquiry (see more on that in the discussion of Aristotle and logic, below). The procedural nature of the stases and the FCRP, and even the fact that the FCRP reorders the stases, speak to sensitivity to questions of time and place, to issues of adjudicative resources. Law and rhetoric are procedural (Lodder, 2004), and they recognize and adopt procedures that are appropriate to time and place. The same cannot be said of logic (discussed further below).

The implementation of stasis theory into contemporary law is welcome, creating a procedure that conserves the scarce resources of parties and adjudicators. Contemporary legal theory does not acknowledge this as an outgrowth of classical rhetoric, which is perhaps disingenuous, but I don’t believe it makes the implementation of these procedures less effective. Law students need not be taught to recognize the law’s indebtedness to Hermagoras, so long as they understand the organizing principles of the procedures; they need not refer to the process as rhetorical, either. However, I believe law students, lawyers, and lay people would benefit from a basic understanding of the principles that motivate this structuring of legal inquiry, of the principles of legal rhetoric.

“You can’t handle [finding] the truth!”
The role of logic/dialectic in legal theory

Aristotle is the first scholar known to have formalized the study of logic, in a series of works known together as the Organon. (Categories and De Interpretatione, Aristotle, 1963; Prior Analytics, 1989; Posterior Analytics, 2010; Topics, 1997b; and Sophistical Refutations, 1997a.) Aristotle seems to acknowledge in most, if not all, of those works that logic is not productive of knowledge in the broadest sense. For example, he acknowledges in the Posterior Analytics the principles/first premises that ground any science will come from empirical experience. (I commit a redundancy, given that empeiria is Greek for experience.) In the Topics, the premises come from what is accepted (endoxa) by the wise, the learned, or people in general.

If we are interested in acquiring knowledge through experience, however, we have to be prepared to get empeiria-cal. It is in formulating this inquiry, then, that rhetorical principles can help us. Aristotle’s On Rhetoric (2007) frequently calls upon the tools of the Organon (often by referring to Topics and dialectic, which themselves are dependent on the rest of that collection). But the Rhetoric deals with judicial and deliberative questions, not like logic with things that are “necessarily the case,” but with things that “can also be otherwise.” As I noted above, this role of rhetoric as the structuring force of inquiry is important in the law.

Legal theory (at least formalist and pragmatist models), though, prefers to focus on the law as an activity that is described, explained, or evaluated according to logical principles. Going back to exemplary reasoning (first introduced above), note that Brewer’s (1996) treatment can function as a framework for evaluating judicial decisions. If the judge fails to abduce a rule that deductively warrants an analogy between precedent and the present case, the judge’s decision in the present case fails to have rational force. It does not, however, fail to have legal effect, unless the failure is detected and corrected on appeal. (Of course, it’s just as possible for a case decided “correctly” at one level to be overturned on appeal.) In at least this one respect, it should be clear that Brewer’s project is normative rather than explanatory. Posner (2006) criticizes reasoning by analogy as having no rational force, but then sets up a logico-deductive, policy-based theory (explanatory or normative?) as an alternative.

A very interesting additional example also comes from Brewer (2006). He attempts to determine how courts can make a logically compelling decision to admit expert testimony. Since the expert’s judgment cannot be examined in the way that a direct witness’s judgment can be, this is an important question. Brewer notes that the main ways to tell whether one is an expert are credentials, publications, and the like. But the problem is that if the universities and editors responsible for granting those indicia of expertise are not themselves experts, then their assessment is of no value. So he goes looking for ways to assess their authority, and so on, until he reaches an aporia, and all but acknowledges defeat. He nevertheless clings to the assertion that this is a problem that must be solved in a manner that gives expert opinions rational force. What he has actually done is fallen into the infinite regress problem (ask me about “turtles all the way down” if you want to talk about how to get that across to students). Aristotle recognized it 2,500 years ago; he admitted that logic could not solve this problem.

The legal theory of formalists and pragmatists fails because it places too high a value on logic. The legal theories of Hasian et al. and the critical legal scholars fail because they place too great a focus on logic in the theory of their antagonists (the formalists and pragmatists) and too little on the value of logic as a legitimate tool for deliberation.

The CLS camp is convinced that logic is of no value. Typical of this view are Farber and Sherry, who adopt a mindset theory, under which every person approaches deliberation with a predisposition to view matters one way or the other: “On this view, one cannot be persuaded to change one’s view on basic matters through argument, because what needs to be changed is the mindset controlling which arguments are received as persuasive and which are rejected” (42).

Certainly there is no doubt that humans, whether trained as lawyers and judges or not, come to decision-making tasks with a great many predispositions, styled by some as “heuristics” and by others as “cognitive biases.” (I’ll post about this in a few days, based on answers I provided in a different prelim exam answer.) I believe the law mixes rhetoric and logic in such a way as to dampen this effect.

Because judges typically have to explain their decisions in opinions, and because they are held to both ‘field-independent’ and ‘field-dependent’ standards of reasoning, as those terms are used by Toulmin (2003), logic provides an important tool both for guiding and evaluating their opinions. Logic is a field-independent standard of reasoning. And it’s hard to knock logic, if its preconditions are met. “All murders are felons. Bill is a murderer. Therefore Bill is a felon.” If the first two sentences are true, hardly a person alive will deny you the third. But logic, even of this modus ponens kind, is not well understood. Given an opportunity for a quasi-logical judgment, most folks will “perfect the conditional”: Given “Bill is a felon” they will conclude that “Bill is a murderer.” One reason for training law students, lawyers, and judges in logic is to prevent these types of error; one reason for expecting written judicial opinions is to allow everyone to check the judge’s work.

But the process of establishing logical premises is itself no function of logic, while it is the bread and butter of rhetoric. And those processes are not field-independent. They are, in fact, highly field dependent. I discussed the Federal Rules of Civil Procedure above. Another example comes from the Federal Rules of Evidence, which prohibits the admission of a statement made out of court for purposes of proving what was asserted in the statement. So, if I encountered Mary after a shooting, and she said to me, “I saw Bill shoot John,” I would (generally) not be allowed to testify to that fact in court. The (certainly procedural and arguably rhetorical) evidentiary principle for this rule is that Mary should be available for cross-examination if her statement about those events is to be admitted. This is not a logical principle; in fact, logic would seem to dictate that if both Mary and I are reliable, I should be able to testify as to Mary’s statement.

Logic is about substantive truth. Given the truth of the premises in a valid syllogism, we can be sure that the conclusion is true. It is field-independent; but it can’t make its own premises. Rhetoric is always field-dependent, dealing with the contingencies of time and place, and in law, it is interested only in procedural truth. Given the resources we have in this time and this place, how can we fairly (if not perfectly) determine the outcome? But if law’s rhetorical procedures provide procedural truths, then logic can still be applied to them to generate legal truths at least as useful.

The interplay of logic and rhetoric gives the legal system its power as a form of epistemic machinery. Formalists and pragmatists are right to value logical reasoning, but they are foolish to seek premises there or to use it unreflectively. CLS scholars are right that slavish attention to logic misses the ideological and unconscious influences that permeate the legal system, but they are foolish to overlook law’s logical and rhetorical tools.

Next, I’ll wrap up with some observations based on my personal experience and based on an interview I did for a research project I’m trying to launch.


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