Classical Rhetoric and Contemporary Law: A Critical Reader seeks to recover “the ancient heritage” (30) of classical rhetoric and apply it to contemporary law in order to bridge the gulf that has emerged between the two in modern thought. The book’s unifying concern is the way rhetorical theory and practice have shaped and continue to shape legal reasoning, institutions, and jurisprudential imagination. Its contributors cover ancient figures such as Antiphon, Isocrates, Plato, Aristotle, Demosthenes, Cicero, Quintilian, and Augustine as well as the anonymous author of the Dissoi logoi and modern figures such as Vico and Perelman, pairing them with contemporary American legal texts ranging from judicial opinions to oral arguments, appellate briefs, jury instructions, and trial arguments. The result is not simply a collection of historical studies but an argument for the contemporary relevance of classical rhetoric to the practice of law.The book grew out of a reading group organized by scholars interested in rhetoric and law. From that collaboration emerged its distinctive method: pairing short primary texts from the rhetorical tradition with modern legal texts and adding a short introduction, a critical assessment, discussion questions, and suggested readings. Aside from an introduction to the book, a historical overview of Western rhetoric, and a brief afterword, each chapter follows this format. The goal, the editors write, is to “disrupt” (4) familiar assumptions about law’s autonomy by exposing its reliance on invention, probability, and appeals to shared values. The primary texts are carefully chosen to show how rhetorical resources illuminate law’s dependence on persuasion under conditions of uncertainty and conflict.In section 2, “Back to the Future: The Eclipse and Revival of Rhetoric,” Francis Mootz and David Frank frame the book conceptually. Mootz begins with Giambattista Vico’s lament in On the Study Methods of Our Time (1708–9) that rhetoric was being eclipsed by Cartesian rationalism, pairing it with Justice Neil Gorsuch’s dissent in TransAm Trucking, Inc. v. Administrative Review Board (2016) as emblematic of that eclipse. In his dissent in TransAm, then Judge Gorsuch wrote in support of a company’s decision to fire a truck driver for abandoning his trailer. He downplayed the driver’s hypothermia after he unhitched his trailer in subzero weather to escape frozen brakes and concluded that the statute protected only workers who refused to drive, not those who drove in a way their employer forbade. Mootz sees this textualist reading as a narrow, unimaginative approach of the kind Vico warned would result from slavish adherence to rationalist method and argues for Vico’s emphasis on imagination and communal reasoning in law (43). Frank presents the other end of the frame with Chaïm Perelman and Lucie Olbrechts-Tyteca, who offered “a contemporary response to Vico’s lament” (48). He pairs selections from their New Rhetoric (1971) covering the rule of justice, confused notions, epideictic discourse, argumentation, and the universal audience with Justice Kennedy’s opinion in Lawrence v. Texas (2003), which struck down laws criminalizing same-sex intimacy. Kennedy’s opinion, Frank argues, demonstrates how rhetorical argument, not formal logic, allowed the Court to expand liberty and equality in response to justice.Section 3, “Studies in Classical Rhetoric and Contemporary Law,” arranges its case studies chronologically. Michael Gagarin begins with Antiphon’s First Tetralogy (late fifth century BCE) and the O. J. Simpson trial, showing how circumstantial evidence depends on probability rather than certainty, and arguing that Antiphon’s strategies, often dismissed as sophistic, represent a protolegal rationality (67). Elizabeth Britt takes up the anonymous Dissoi logoi (ca. 400 BCE), pairing it with excerpts from the briefs of each party to a child custody case heard by the Massachusetts Supreme Judicial Court to demonstrate the importance of speaking on both sides of a question as “a central component of learning to think like a lawyer” (83). Nick Sciullo and Craig Meyer examine Isocrates’s Panegyricus (380 BCE) alongside Trump v. Hawaii (2018), arguing that both texts weave together forensic and epideictic appeals to construct a civic identity defined against outsiders. They claim that, while lacking an explicit rhetoric of exclusion, Roberts’s majority opinion implicitly presupposes an American identity threatened by foreign nationals and justified by appeals to national interest (102). The analysis reveals how law’s claim to neutrality is often undergirded by rhetorical strategies that divide insiders and outsiders.These applications of the Sophists and Isocrates to contemporary law are followed by one chapter on Plato and two on Aristotle. Kristen Tiscione considers Plato’s mistrust of argument reflected in his Gorgias (380 BCE) in relation to Citizens United v. Federal Election Commission (2010), pressing the question of whether legal rhetoric discovers reality or distorts it. Eugene Garver visits Aristotle’s project of “putting reasoning at the center of persuasion” to determine the conditions under which “the most persuasive argument should be the argument that persuades” or the one that “embodies and leads to good practical reasoning” (137). He pairs excerpts from Aristotle’s Rhetoric (mid- to late fourth-century BCE) with Justice Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), contrasting Aristotle’s ideal of rhetoric as reasoned argument seeking truth and ethical judgment with Holmes’s “marketplace of ideas,” in which victory defines truth. He uses the pairing to explore what makes rhetorical competition in democracy just and productive rather than a mere contest of influence. Catherine Langford extends the discussion by exploring Aristotle’s Topics (mid-fourth-century BCE) through United States v. Lopez (1995), which struck down the Gun-Free School Zones Act, to show how judicial opinions deploy topoi to reveal invention within accepted frameworks.Vasileios Adamidis and Laura Webb conclude the Greek sequence with On the Crown (330 BCE), in which Demosthenes leverages traditional values to create shared identity and marginalize his adversary, and the state of Virginia’s amicus brief in Obergefell v. Hodges (2015), in which the Court recognized a constitutional right to same-sex marriage. They argue that Virginia’s brief in Obergefell demonstrate how, far from being a static inheritance, tradition is rhetorically constituted and reconstituted in the service of persuasion, a blend of legal and political argumentation.The Roman tradition is then represented in chapters on Cicero and Quintilian. Brian Larson and Susan Provenzano pair Cicero’s De inventione (mid-first century BCE) on the stases of ambiguity and of letter and intent with Chickasaw Nation v. United States (2001), in which the Court held that certain tribes were liable for gambling taxes. Cicero’s stases of ambiguity and of letter and intent illuminate, they argue, the interpretive moves of both majority and dissent. Kirsten Davis turns to Quintilian’s Institutio oratoria (95 CE) and Gentile v. State Bar of Nevada (1991), in which Justices Anthony Kennedy and William Rehnquist wrote conflicting opinions about the nature of a lawyer as advocate in a case involving a lawyer disciplined for alleging government corruption in statements to the press about a pending case. Through Gentile, she examines how ethos shapes conceptions of the lawyer as advocate and argues that Quintilian’s insistence that the orator must be “a good person skilled in speaking” remains instructive for contemporary legal ethics.Finally, Mark Hannah concludes the chapters by pairing Augustine’s reflections on the saeculum in City of God (early fifth century CE) with colloquy during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which the Court considered the complaint of a baker who objected to baking a wedding cake for a same-sex couple on religious grounds. Hannah shows how tensions between pagan and Christian rhetoric persist in disputes over religious freedom, revealing how rhetorical choices continue to shape legal arguments about the limits of belief and civic obligation. In a brief afterword, Brian Larson stresses that the classical sources excerpted in the book are not definitive but designed to “foster a group discussion and respect the intellectual independence of the reader” (245) regarding the relevance and limits of classical rhetoric to analyzing contemporary law.Taken as a whole, Classical Rhetoric and Contemporary Law demonstrates that to study law without rhetoric is to miss the ground on which it stands and that to study rhetoric without law is to neglect one of its most consequential sites. The essays show that legal authority rests not in mechanical rule application but in persuasive judgment. By pairing primary texts in both rhetoric and law, the editors make a claim that matters equally to rhetorical and legal studies: that these traditions illuminate one another and should be read together. The result is a resource that reveals rhetoric’s constitutive role in law while affirming law as a critical arena for observing rhetoric’s force.The limitations of Classical Rhetoric and Contemporary Law are slight and largely those common to ambitious collections or inherent in the classical sources. The introductions and critical assessments are necessarily brief, and the canon remains firmly Western. Readers seeking global or decolonial perspectives will not find them here. Although the book acknowledges that Greek and Roman societies were “culturally insular, slave-holding, demarcated by caste systems, and patriarchal” (4) and Larson’s afterword cites the role classical rhetoric plays in the work of Lolita Buckner Innis on slavery (2010) and Rasha Diab (2016, 245) on the erasure of Arab and Islamic rhetoric, race is rarely mentioned in depth despite its pervasiveness in American law, even where it might naturally occur, such as in relation to the O. J. Simpson case. In this sense, the book is not “complicated by Others” (4) any more than the classical rhetorical tradition the editors describe. Yet the editors acknowledge these boundaries and invite readers to hold the tradition accountable for its exclusions. They offer provocation rather than closure, and that is the book’s merit.The book’s recovery narrative also warrants caution. Divisions between law and rhetoric are not just modern but perennial, visible already in antiquity. Aristotle’s Rhetoric opens by warning against the emotional appeals advanced by forensic handbook writers which allowed the Roman lawyer Antonius to later remark in Cicero’s De oratore that Aristotle “disdained” (despiciebat) rhetoric. Throughout antiquity, philosophers and legal advocates competed for prestige and students, sometimes embracing each other but often distancing their projects. However, the authors rightly call attention to modern institutional ruptures while underscoring the value the classical rhetorical tradition continues to hold for the analysis of contemporary law, practical reasoning, and civic life, as reflected in Vico’s defense of rhetoric and Perelman and Olbrechts-Tyteca’s recovery and renovation of it.What most distinguishes Classical Rhetoric and Contemporary Law is its success in rendering the classical rhetorical tradition not as a static inheritance but as a living resource. By pairing primary rhetorical and legal texts and situating them in dialogue, the editors and the contributors have produced a book that will serve historians of rhetoric, legal theorists, and students at all university levels equally well. Its scholarship is rigorous and its pedagogy inventive, reminding readers that rhetoric and law are mutually illuminating pursuits. For its breadth, clarity, and critical imagination, it deserves to be read widely and will prove a valuable resource for understanding how rhetorical traditions continue to shape law and civic life.
Doug Coulson (Mon,) studied this question.
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