Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning
83 Pages Posted: 9 May 2008
Date Written: May 8, 2003
At the inception of their careers, most lawyers have little or no background in classical rhetoric. Many law students enter law school thinking that they will receive formal training in either logic or rhetoric, but very few law schools even teach classes in these subjects. In the absence of any formal training, most lawyers learn to write persuasively by imitating "good" legal writing. The consequence for the legal profession is an abundance of legal writing that is not grounded conceptually in the rhetorical tradition from which it is derived. The principal problem with legal writing is not that lawyers cannot write; the problem is that we have not been taught how to create and construct arguments. It is not our writing that is undeveloped or unclear; it is our thinking. In order to develop "clearer" thinking, lawyers need to know something about the rhetorical tradition from which legal argument is derived.
This article highlights the need for educating lawyers about the rhetorical tradition, to provide a brief summary of the basics in syllogistic and analogical reasoning that lawyers need to know in order to understand that tradition, and to isolate and analyze several of the problems in both types of reasoning common to legal writers. Each of these problems can be identified, evaluated and improved regardless of the lawyer's "writing ability" or experience level. The article creates a working vocabulary for recognizing these problems that enables lawyers, professors, students, and judges to communicate in the same language about a critical component of persuasive writing - the validity of its reasoning.
Keywords: classical rhetoric, syllogism
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