Introduction to Classical Legal Rhetoric by Frost Michael H.;Campbell Professor Tom D.;

Author:Frost, Michael H.;Campbell, Professor Tom D.;
Language: eng
Format: epub
Publisher: Taylor & Francis Group

Chapter 5

Greco-Roman Analysis of Metaphoric Reasoning

Frequently and almost instinctively lawyers use figurative and metaphoric language when they want to emphasize or crystallize their analysis or arguments.1 When they rely on familiar metaphoric clichés – the law as a ‘seamless web,’ cases with ‘progeny,’ corporations with ‘veils,’ and constitutional ‘penumbras’ – they reveal not only their appreciation for the power of figurative language, but also their substantial reliance on metaphoric reasoning. Generally speaking, ‘metaphoric reasoning’ is the use of metaphors and similes to explain, describe, persuade, or emphasize.

Lawyers’ predilection for figurative language in what are otherwise rather dry and logical arguments has recently prompted some legal analysts to examine the impact and place of metaphors in forensic discourse.2 Most modern commentary centers on the issues raised by Justice Cardozo’s oft-cited admonition that ‘[m]etaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.’3 Those who ‘narrowly watch’ how metaphors affect legal reasoning generally spend most of their time explaining how metaphors either ‘liberate’ thought or ‘enslave’ it.

However, resourceful as they are in discovering the connections between metaphors and the law, modern analysts seldom rely on the works of classical rhetoricians who studied the matter in considerable detail and whose analysis goes far beyond the ‘liberate/enslave’ dichotomy. Aristotle’s Rhetoric and his Poetics, Cicero’s De Oratore, the Rhetorica ad Herennium, and Quintilian’s Institutio Oratoria, for example, all include extensive discussions of the analytical and persuasive value of metaphors in forensic discourse.4 Their analysis of how metaphors work and when they are appropriate reveals more about legal reasoning than do most modern commentaries on the topic.

Moreover, in addition to discussing the logical value of metaphoric reasoning, these classical treatises also examine its persuasive and aesthetic impact. While their focus on the aesthetics of legal discourse may strike modern analysts as somewhat odd, classical rhetoricians regarded aesthetics as a natural, proper, and necessary component of legal analysis and argument. From a classical perspective, metaphors had a clear logical and emotional function in legal discourse. They were also directly linked to an advocate’s credibility and helped legal audiences evaluate his character.

Classical rhetoricians thought metaphors contributed to the logical proof of legal arguments partly because they are subtle, concise and intellectually engaging and partly because they provide a unique intellectual dimension without sacrificing logical integrity. They also thought that well-chosen metaphors contribute important emotional and aesthetic qualities, help capture the audience’s attention, ease the demands on the audience’s intelligence and make the experience pleasurable. Classical rhetoricians were so convinced of the emotional impact of certain metaphors that they categorized them according to effect, suitability, proper placement and persuasive value. And, finally, under classical theory, an advocate’s choice and use of metaphors provides valuable insights into his character, resourcefulness, probity, genius and even his aesthetic sensibility.

Although numerous parallels exist between classical and modern opinions about the place of metaphors in legal discourse, most modern analysts still regard them with suspicion. Their suspicions focus almost exclusively on the very emotional and intellectually intuitive qualities that attracted classical rhetoricians.

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