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p. 1 Aristotle Teaches Persuasion: The Psychic Connection Steven D. Jamar* 8 Scribes 61-102 (2001-2002) I. Introduction Aristotle’s Rhetoric1 is a set of three books written over a number of years more than two millennia ago. It is a testament to its power that the Rhetoric is still studied today as a living, breathing work. The Rhetoric is concerned with persuasion in the public sphere. Kennedy’s subtitle in for his translation, “A Theory of Civic Discourse,” hits the mark well. Indeed, one
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  Electronic copy available at: http://ssrn.com/abstract=1148774 p. 1   © 2001 Steven D. Jamar  Aristotle Teaches Persuasion: The Psychic Connection Steven D. Jamar  *  8 Scribes 61-102 (2001-2002) I. Introduction Aristotle’s  Rhetoric 1 is a set of three books written over a number of years more thantwo millennia ago. It is a testament to its power that the  Rhetoric is still studied today asa living, breathing work. The  Rhetoric is concerned with persuasion in the public sphere.Kennedy’s subtitle in for his translation, “A Theory of Civic Discourse,” hits the mark well. Indeed, one could argue that Aristotle’s  Rhetoric provides the best means yetdevised for engaging in civic discourse to create a Rawlsian “overlapping consensus”among disparate groups. 2  The Rhetoric endures, I believe, for two main reasons. First, Aristotle got it mostlyright. He was insightful and understood the human heart. Second, Aristotle’s mainapproach of seeking out and then articulating general principles that can then be appliedin appropriate contexts releases it from being time-locked. By way of contrast, acontemporary of Aristotle’s, Isocrates, taught rhetoric mainly through examples. Theexamples may still be instructive, but they are bound to time and place because theymake so many references to events of the ancient world and make so many assumptionsabout how the world works, or worked 2350 years ago, that the lessons are more difficultto draw out today.Aristotle’s basic approach is to analyze the subject, break it down into component parts, analyze the component parts, break each of them down further, and so on. Thisanalytic tour de force results in innumerable possible means of persuasion in any giveninstance. The overwhelming amount of information is made manageable because after  breaking it all down, Aristotle categorizes the information and extracts and presents * Howard University School of Law, Director, Legal Research and Writing Program. Thisarticle is derived from a presentation I made at the biennial Legal Writing InstituteConference in Seattle, Washington in 1994. I wish to thank those who have encouragedme to commit the thoughts to writing and who have reviewed earlier drafts, with specialthanks to Prof. Linda H. Edwards and Prof. Pamela Lysaght. I also want to express myappreciation to Prof. Joe Kimble whose comments and editing made this a much morereadable piece. Please send comments about this article to sjamar@law.howard.edu. 1 Aristotle, On Rhetoric (George A. Kennedy trans., Oxford U. Press 1991) (hereinafter “  Rhetoric ”) (All citations are to Kennedy’s translation.). 2 John Rawls,  Political Liberalism 133-172 (Col. U. Press 1993). See Lawrence E.Mitchell, Trust and Overlapping Consensus, 94 Colum. L. Rev. 1918 (1994). See also  Miriam Galston, Taking Aristotle Seriously: Republican-Oriented Legal Theory and theMoral Foundation of Deliberative Democracy, 82 Calif. L. Rev. 329 (1994).  Electronic copy available at: http://ssrn.com/abstract=1148774  Aristotle Teaches Persuasion p. 2 general principles derived from the analysis and categorization. As a result of hisexhaustive labors, Aristotle has given us a complete art of rhetoric.Aristotle defines rhetoric as “an ability, in each [particular] case, to see the availablemeans of persuasion.” 3 Contrast this with the way the term “rhetoric” is often used pejoratively, as in “that is pure rhetoric” or “mere rhetoric” implying that something wasdone merely as a matter of style, not substance .4 This usage ignores Aristotle’s emphasison reasoned argument in civic discourse as part of rhetoric and distinguishes too sharply between style and substance. As demonstrated by Hofstadter, style cannot, or at leastought not, be separated too sharply from substance. 5 Dismissing rhetoric as empty stylealso seriously undervalues the ways in which meaning is tied to narrative and rhetoricalchoices, a topic richly explored in the new book  Minding the Law . 6  The study of Aristotle’s  Rhetoric can be valuable for lawyers, whether merely divingfor pearls of wisdom or seeking to develop a coherent approach to persuasion. Rhetoriccan also be used as a lens through which to analyze the law as Amsterdam and Bruner doin Minding the Law . 7 Another author used the “tools of rhetoric” to examine “this matter of thinking, writing, and talking ‘like a lawyer . . ..’” 8 My aim is more modest – tohighlight a core teaching of the master.Despite their value to law and lawyers, 9 Aristotle’s teachings qua Aristotle’steachings are not in themselves well known. This unfamiliarity with the source of theideas and with Aristotle’s technical analysis contrasts with their pervasive influence – many of the basic forms of persuasion in public speech in the United States areessentially Aristotelian, especially those in the judicial setting. As stated by Amsterdam 3    Rhetoric, 1.2.1, at 36 (Book 1, chapter 2, passage 1, Kennedy translation page 36)(bracketed insertion from the translator) (To facilitate the study of the  Rhetoric , aconvention for citing passages within it has been developed. Thus citations to particular  passages cite to book, chapter, and where appropriate, passage in the following format:1.2.1. I follow that convention here.). 4    E.g., Anthony T. Kronman,  Rhetoric , 67 U. Cin. L. Rev. 677 (1999). 5 Douglas R. Hofstadter,  Le Ton Beau de Marot: In Praise of the Music of Language (Basic Books 1997). See also Linda Meyer,  Between Reason and Power: Experiencing  Legal Truth , 67 U. Cin. L. Rev. 727 (1999) (responding to Dean Kronman’s speech citedabove in note 5); J. M. Balkin,  A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, in  Law’s Stories: Narrative and Rhetoric in the Law (Peter Brooks & Paul Gewirtz, eds., 1996); Jane B. Baron & Julia Epstein, Is Law Narrative?,  45 Buff. L. Rev. 141 (1997). 6 Amsterdam & Bruner   , supra n. 2, at chs. 4 & 6. 7 Amsterdam & Bruner   , supra n. 2, at ch. 6. 8 Gerald Wetlaufer,  Rhetoric and Its Denial in Legal Discourse, 76 Va. L. Rev. 1545(1990). 9    E.g., Jeffrey R. Parsons, Managing the Jury: A Trial Lawyer’s Perspective on the Art of  Jury Persuasion , 497 PLI/Litigation 301 (1994); John W. Cooley  , A Classical Approachto Mediation–Part I: Classical Rhetoric and the Art of Persuasion in Mediation, 19 U.Dayton L. Rev. 83 (1993).   Aristotle Teaches Persuasion p. 3 and Bruner, “ Categorization, narrative, and rhetorics [are] the stuff of everyday life inthe law.” 10 Likewise, James Boyd White has highlighted the rhetorical roots of law asfollows:[L]aw is most usefully seen not, as it usually is by academics and philosophers, as a system of rules, but as a branch of rhetoric; and that thekind of rhetoric of which law is a species is most usefully seen not, as rhetoricusually is, either as a failed science or as the ignoble art of persuasion, but asthe central art by which community and culture are established, maintained,and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject. 11  The utility of knowing Aristotle’s  Rhetoric is increasingly recognized among someadvocates and among those teaching law-school courses in legal writing, law andliterature, evidence, and legal reasoning. 12  Because of the general lack of familiarity, I have summarized certain of the  Rhetoric’s ideas from the   in more depth than those familiar with the treatise would need. Nonetheless, I have not attempted a full exegesis of any of Aristotle’s many points; their richness and textured subtlety of can only be gleaned by reading the  Rhetoric . Readersinterested in informal logic and modern rhetoric theory might enjoy various authors fromoutside the law, including in particular    Toulmin 13 and Perelman. 14  I have focused on just a few of the subjects Aristotle analyzed in order to demonstratethat at the heart of the Rhetoric’s is deep instruction in how to make your argumentsresonate most effectively with the audience. How to make a “psychic connection” between the speaker and the audience is, to my mind, the core, unifying theme of thewhole  Rhetoric . 10 Amsterdam & Bruner,  supra n. 2, at   2 (emphasis in srcinal). 11 James Boyd White,  Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 Chi. L. Rev. 684, 684 (1985). 12    E.g. , Leigh Hunt Greenshaw, “To Say What the Law Is”: Learning the Practice of  Legal Rhetoric, 29 Val. U.L. Rev. 861 (1995) (footnote in title omitted); Eileen A.Scallen, Classical Rhetoric, Practical Reasoning, and the Law of Evidence, 44 Am. U. L.Rev. 1717 (1995); Linda S. Durston and Linda G. Mills, Toward a New Dynamic in Poverty Client Empowerment: The Rhetoric, Politics, and Therapeutics of Opening Statements in Social Security Disability Hearings , 8 Yale J. L. & Feminism 119 (1996);   Michael Frost, Greco-Roman Analysis of Metaphoric Reasoning, 2 Leg. Writing: TheJournal of the Leg. Writing Inst. 113 (1996); Michael Frost,  Introduction to Classical  Legal Rhetoric: A Lost Heritage, 8 S. Cal. Interdisciplinary L.J. 613 (1999). 13 Stephen E. Toulmin, Allan Janik, and Richard D. Rieke,  An Introduction to Reasoning   (MacMillan 1984). 14 Chaim Perelman, The Realm of Rhetoric (William Kluback trans., U. Notre DamePress 1982). See also Paul T. Wangerin,  A Multidisciplinary Analysis of the Structure of  Persuasive Arguments, 16 Harv. J. L. & Publ. Pol’y 195 (1993).   Aristotle Teaches Persuasion p. 4 In demonstrating this thesis, I will focus primarily on how, to Aristotle, logicalargument, particularly the enthymeme (rhetorical syllogism), is less about logic per sethan about knowing and connecting with the audience. To Aristotle, logical argumentsare persuasive not because of something inherently true about logic, but rather becausethe audience values and responds to logical arguments. That is, logic is not outsidehuman experience, but of it. Even the seeming inevitability of the syllogism has beenshown to be culture-bound, at least in the sense that one must believe in it for it to be persuasive. 15 One can choose not to believe either in its logic or in its completeness or  precision. In the law completeness and precision are sought after, but never fully realizedor realizable. Hence even the honored syllogism is open to rhetorical attack.   II. Modern Legal Reasoning To better see the place of Aristotle’s teachings in modern legal reasoning, I will briefly summarize core aspects of it. Nuances and refinements are not included. (I haveaddressed a limited cluster of such nuances and refinements elsewhere. 16 )After this brief detour, I will return to Aristotle and explain both the core of what I think he was teachingand how that core fits in the modern setting. 17  Legal reasoning consists of several interrelated attributes including analysis,synthesis, syllogistic reasoning (rule application), and comparing (including bothanalogizing and distinguishing). 18  Analysis is the “separation of an intellectual or substantial whole into its constituent parts for individual study.” 19 Lawyers analyze the facts and the law. Analyzing, as used by lawyers, typically includes categorizing. Facts are placed into categories with potential legal significance: the type of thing (real or personal property), the status of the persons (spouse, landlord, vendor, licensee), the nature of the interaction (tort or  15 Douglas R. Hofstadter, Godel, Escher, Bach: An Eternal Golden Braid  43-45 (BasicBooks 1979). 16 Steven D. Jamar, This Article Has No Footnotes: 1 An Essay on RFRA 2 and the Limitsof Logic in the Law, 27 Stetson L. Rev. 559 (1997) (examining paradoxes and truthvalues). 17   See also Robert H. Schmidt The Influence of the Legal Paradigm on the Development of Logic, 40 S. Tex. L. Rev. 367 (1999) (approaching a similar idea from a quite different perspective). 18   See e.g., Richard K. Neumann, Jr.,  Legal Reasoning and Legal Writing  chs. 2, 4, 10,12, 13 (3d ed., Aspen L. & Bus. 1998); Linda H. Edwards,  Legal Writing: Process, Analysis, and Organization chs. 1-6   (2d ed., Aspen L. & Bus. 1999); Nancy L. Schultz& Louis J. Sirico, Jr.,  Legal Writing and Other Lawyering Skills chs. 3-5 (3d ed., MathewBender 1998). 19    American Heritage Electronic Dictionary of the English Language (3d ed., HoughtonMifflin Company 1992) (version 3.6.1, for the Macintosh, interface and other implementation software by Softkey International, Inc., 1994) (hereinafter   Am. Heritage Dictionary ).
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