Law as Rhetoric, Rhetoric as Argument

Many lawyers lack a basic understanding of the structure and process of legal argumentation. Their limited understanding, which often leads to less than effective advocacy, stems from legal education's failure to make the structure and process of legal argument explicit and systematic. One approach to this problem is to explore the intrinsic relationship of law to rhetoric. Because law and rhetoric have a common cultural and historical heritage, classical and contemporary rhetorical theory offer conceptual frameworks for understanding and learning legal argumentation.2 This article discusses and applies heuristics from contemporary theories of argumentation to demonstrate how these models inform the study and practice of the law. My focus is on the practical nature and justificatory function of legal argument. Although theories of argumentation belong within the larger class of rhetorical theory, they are distinguished here because rhetorical theory lays the more general foundation for considering specific approaches to argument. Traditionally, research on argument has followed two lines: normative and descriptive investigation. For the most part, normative theories of argument are treated in the area of formal logic and are concerned with internal correctness and validity.3 Instead, this article identifies the contributions of Stephen Toulmin and Chaim Perelman, two rhetoricians who explore argument not as norm-giving but as norm-descriptive. This is in keeping with