Judicial Rhapsodies

Front matter

Rhetoric and Fundamental Rights in the Supreme Court

Doug Coulson

Judicial Rnapsodies

Table Of Contents

Acknowledgments

Introduction: Rhapsodic Jurisprudence

1. Judicial and Epideictic Rhetoric: A False Division

CHAPTER 1 Judicial and Epideictic Rhetoric: A False Division

Legal discourse is antirhetorical, or so we are told. It relies on reduction and certainty in order to resolve disputes with finality. It promotes, as Sanford Levinson writes, “the one right (or best) answer to questions and the one true (or best) meaning of texts.” It disciplines rather than cultivates speech. According to Levinson, lawyers and judges tend to adopt an overconfident tone, dismissing opposing views as “without merit,” and they rarely characterize a question as “exceedingly close” with “much to be said on both...sides.”* Peter Goodrich writes that the foundational texts of the English common law are motivated by the figure of antirrhesis, a denunciation of others as outsiders, heretics, or iconoclasts.* Legal discourse aims to obtain a judgment predicated on proof “beyond the course of doubt,” he writes, a form that depends on dismissal and repression, “a refusal to listen, a void or absence of speech in which the other is characterized not simply as without jurisdiction but as mendacious, demanding, inconsistent and without credibility or right.” Those who challenge the law are viewed not merely as wrong, Goodrich writes, but as “sacrilegious, unnatural and irrational if not explicitly insane.”

According to Robert Ferguson, the driving impulses of judicial opinions include a controlling voice in which “the goal of judgment is to subsume difference in explanation and decision,”® an interrogative mode guided by questions only asked “with an answer already firmly in mind,”’ and a declarative tone that “resists mystery, complexity, revelation, and even exploration” in favor of “hyperbole, certitude, assertion, simplification, and abstraction.”* These impulses combine to form what Ferguson calls a “rhetoric of inevitability” which presents decisions as predetermined.’ Similarly, Eugene Garver writes that although judges may struggle with doubts regarding more than one rational decision in a case, “when it comes time to write an opinion, each judge writes as though his or her decision is ineluctable, necessary, and inevitable.” It is evident from these and other commentators that, much like scientific discourse, legal discourse promotes an image of itself as a hermetic domain unaffected by rhetorical considerations."

The antirhetorical quality that is believed to characterize legal discourse today has often been contrasted with the close relationship believed to have existed between rhetoric and law in the classical rhetorical tradition of ancient Greece and Rome, the influence of which extended through European history to the Middle Ages and the Renaissance." The development of rhetorical knowledge in ancient Greece reputedly began in response to the rise of property litigation, the emergence of written judicial opinions and legal doctrines such as equity have been attributed to the proliferation of rhetorical training in ancient Rome, and modern rules of evidence and procedure are in part codifications of principles that first arose in the classical rhetorical tradition.” The rhetorical handbooks of the classical tradition included prescriptive instruction in legal advocacy, and the highest lesson of the series of prose composition exercises known as progymnasmata which emerged from the tradition and on which classical rhetorical theory often reflected was an exercise in which a student spoke for and against a proposed law. As Chaim Perelman notes, “in Greece, Rome, the Middle Ages and the Modern Era legal development went hand in hand with rhetorical development.” During the Renaissance the legal career was particularly instrumental in reviving rhetorical study, and a legal career has always been a destination for those who have pursued a rhetorical education."

The perceived disparity between contemporary and classical perspectives on the relationship between law and rhetoric has prompted many to lament the divide between the fields today. Legal historian David Cairns writes that no history of modern legal advocacy has been written nor has anyone considered it in the depth that Aristotle or Quintilian did the legal oratory of ancient Greece and Rome,” and Michael Frost concludes that the classical rhetorical tradition is an “unequaled source” of wisdom on legal advocacy, “the most coherent and experience-based discussion of legal reasoning, analytical methods, and argumentative strategies ever devised.”'* According to Frost, contemporary approaches to legal discourse lack “the breadth, depth or tone of...classical sources,” with their attention to philosophy, poetics, and politics.’

The contemporary divide between law and rhetoric has been variously attributed to the decline of the Roman Republic, the professionalization of law and legal apprenticeship that began with the rise of law schools in the late Middle Ages, the codification of rhetorical principles in modern rules of evidence and procedure which have rendered their separate study unnecessary, and the effect of the Scientific Revolution and Enlightenment’s insistence that invention be exclusively governed by deductive logic and the scientific method rather than included in the study of rhetoric.” In the sixteenth century, the pedagogical reformer Peter Ramus directed that invention along with arrangement and memory be eliminated from rhetorical studies entirely and assigned exclusively to philosophy, leaving rhetorical studies only the study of style appended separately from the development of content, and even limiting rhetorical studies of style to consideration of tropes and figures—mostly tropes—while etymology and syntax were separately assigned to grammatical studies.” The Ramist approach to rhetoric reduced rhetoric, in other words, to an ornamental role more than, in Walter Ong’s assessment, “any other rhetoric ever has.”” The modern elimination of invention from rhetorical studies beginning with Ramus has diminished the study of the rhetorical dimensions of knowledge not only in law but in every discipline, a development further compounded by René Descartes’s rationalism and the modern language policies of Francis Bacon and the Royal Society of London which rejected rhetoric along with all other humanistic knowledge in the pursuit of an exclusively scientific model of invention.”

The relationship between law and rhetoric today is often explained, in other words, as a drift away from an original unity. According to Ronald Matlon, despite an originally close relationship between law and rhetoric, “the road traveled has been a rocky one,” and Michael Frost subtitled his book on classical legal rhetoric A Lost Heritage.” Although over the past half century many commentators have begun to question the antirhetorical portrait of contemporary legal discourse—including those who pursued the “jurisprudential turn” in argument theory led by philosophers Chaim Perelman and Stephen Toulmin to prefer a juridical model of argument over a strictly logical one**—the story of the relationship between law and rhetoric has generally been one of growing alienation. As a result, rhetorical studies have borne the burden of proving their relevance to legal discourse.”

While the historical forces to which the contemporary divide between law and rhetoric have been attributed have undoubtedly shaped the divide in the ways commentators have noted, representations of an original unity between law and rhetoric in the classical tradition are also overstated and appear to suffer from a certain nostalgia that fails to recognize divisions between the fields of law and rhetoric in the classical tradition as well as in contemporary thought. It is unclear whether Aristotle, Quintilian, or any other classical rhetorician considered legal discourse all that deeply either. They seldom wrote about particular legal cases or historical contingencies in great depth, and they largely limited their study of legal discourse to its eristic dimension, the pragmatic consideration of how lawyers succeed or fail to secure the outcomes they desire in legal cases. Sources of division between law and rhetoric are evident in many classical sources on law and rhetoric, suggesting a more perennial and fraught relationship than historical drift alone explains.

One of the most important classical sources of the division between law and rhetoric is Aristotle’s effort to separate judicial and epideictic speech in his Rhetoric, an example of a broader perspective in the ancient world that at times viewed judicial discourse as beyond the scope of rhetoric at all. The first-century Epicurean philosopher Philodemus, for example, concluded that Epicureanism not only rejected the view that epideictic— which he equated with sophistic amplification practices—belonged to a single genre of rhetoric, but he concluded that it constituted the entire realm of rhetoric to the exclusion of deliberative and judicial discourse.’ The distinction continues to appear in contemporary sources. Walter Berns, for example, writes that “it is not clear that there is a proper place for rhetoric in the judiciary, even at the highest level,” although it is necessary for judicial rhetoric “to strengthen, or “fortify, the popular attachment to the Constitution, or, to cause it to be venerated by the people.””

Previous commentators have noted that Aristotle’s division of rhetoric into deliberative, judicial, and epideictic genres sought to discipline the epideictic rhetorical practices of the ancient Greek sophists,*° but it is important to understand that the division concomitantly sought to discipline judicial rhetoric as well and what that disciplinary effort suggests about attitudes toward legal discourse in ancient Greece. In the opening pages of his Rhetoric, after arguing that rhetoric is an art that can be treated systematically, Aristotle complains that the authors of rhetorical treatises preferred the “accessory” and “non-essential” topics of emotional rather than logical modes of persuasion. According to Aristotle, the logical modes of persuasion are the “only true constituents of the art” of rhetoric, particularly the enthymeme, which he calls “the substance of rhetorical persuasion.” Although enthymemes existed as a category of rhetorical activity before his Rhetoric, Aristotle conceives of enthymemes as “rhetorical syllogisms” because they adhere to logic in the same manner as logical syllogisms, distinguished only by the fact that enthymemes address contingent issues or rely on tacit premises, as “conclusions that state what is merely usual or possible must be drawn from premises that do the same.””!

For Aristotle, the enthymeme, then, is a counterpart (antistrophos) of strictly logical reasoning because “the true and the approximately true are apprehended by the same faculty,” and “the man who makes a good guess at truth is likely to make a good guess at probabilities.”*? Enthymemes are particularly suitable to judicial discourse, he writes, because “it is our doubts about past events that most admit of arguments showing why a thing must have happened or proving that it did happen.” Much as Stephen Toulmin introduced epistemic modality into argument theory in the twentieth century by recognizing the role that backing, warrants, and qualifiers play in argument, Aristotle introduced modality into rhetorical theory in the ancient world by recognizing the value of contingent reasoning.

Despite Aristotle’s recognition of contingent reasoning, however, he distinguishes emotional and logical modes of persuasion in the opening pages of his Rhetoric by critiquing the advice provided for legal advocates in the rhetorical handbooks of the era. Specifically, Aristotle positions his Rhetoric as a response to the focus of such handbooks on methods of arousing prejudice, pity, anger, and other emotions, which he concludes are improper because they have “nothing to do with the essential facts” of a case but are purely personal appeals to a judge. It is wrong for a litigant to “pervert” the judge by “moving him to anger or envy or pity,” Aristotle argues. Instead, a litigant has “nothing to do but to show that the alleged fact is or is not so, that it has or has not happened.” A judge should ignore pleas from a litigant regarding whether a thing is important or just, Aristotle writes, deciding such matters for himself to the extent that their value is not already defined by the legislature. In addition, legislatures should allow judges “to decide as few things as possible.”** Because legislators consider “wider issues” and vote in their own self-interest rather than as bystanders, Aristotle concludes that deliberative rhetoric is less susceptible than judicial rhetoric to exploitation by unscrupulous rhetorical practices.” For Aristotle, as Eugene Garver explains, “we all have a stake in getting the answers right” in deliberative rhetoric,” but in judicial rhetoric the speaker must “create the motivation” by making people take arguments “personally and morally.”*’ For Aristotle, appealing to a judge in this way should be strictly limited.’

In contrast to his recognition of contingent reasoning or at least qualifying that recognition, Aristotle also announces early in his Rhetoric a general preference for the prospective and general decision-making of legislatures to the retrospective and casuistical reasoning of judges, citing the particularism of judicial reasoning as the “weightiest reason of all” for preferring legislative authority.” This preference also subordinates Aristotle’s development of the concept of equity, or situational principles of justice that serve to correct the generality of legislation, to legislative decision-making, and he commends strict procedures to regulate the narrow scope of authority that legislatures give judges. He even writes that if the rigorous rules for trials in “well-governed” states such as those in the Council of Areopagus were applied everywhere, the writers of rhetorical treatises would “have nothing to say.”! The Council of Areopagus consisted of former consuls with jurisdiction over intentional homicide and sacrilege cases, observed severe procedures that included ritual oaths performed over animal sacrifices and exclusionary practices directed at emotional or irrelevant pleading, and conducted its own inquiries into cases as a basis for independently challenging pleadings and evidence presented by the parties.“ By contrast, popular jury courts had larger audiences and permitted the sort of emotional appeals excluded by the Areopagus.“

Considering Aristotle’s admonitions against legal advocacy in the introductory pages of his Rhetoric in their entirety, it may not be surprising that in Cicero’s first-century BCE dialogue De Oratore the interlocutor Antonius remarks that Aristotle “disdained” (despiciebat) rhetoric.* For Aristotle, the epideictic function of shaping beliefs, desires, and ethical commitments on matters of philosophical, social, ethical, or cultural concern is entirely improper in legal advocacy. Instead, he promotes a narrow and mechanical function of factfinding for judges with the consequences of such findings strictly determined by the legislature. The introductory paragraphs of Aristotle’s Rhetoric, in other words, all but prefigure Shakespeare’s famous line, “The first thing we do, let’s kill all the lawyers.”

A closer examination of Aristotle’s approach to the enthymeme and of the enthymeme’s pre-Aristotelian history, however, reveals a more affective, epideictic dimension to Aristotle’s logical modes of persuasion than is suggested by his tripartite division of genres and his condemnation of moving judges “to anger or envy or pity.” Despite Aristotle’s early contrast between emotional appeals and the enthymeme as a logical mode of persuasion, for example, he writes later in his Rhetoric that speeches relying on enthymemes “excite the louder applause” than those that rely on examples, suggesting that enthymemes possessed emotional potency.” More importantly, he betrays recognition of a close connection between enthymemes and epideictic by recognizing that maxims (gnomoi)—defined as general statements about practical courses of conduct—constitute the premises and conclusions of enthymemes.** An enthymeme is “a syllogism dealing with...practical subjects,” Aristotle writes, and he provides the following enthymeme from Euripides’s tragedy Medea as an example:

Never should any man whose wits are sound

Have his sons taught more wisdom than their fellows It makes them idle; and therewith they earn

Ill-will and jealousy throughout the city.

Aristotle similarly notes, again citing Euripides, that the maxim there is no man among us all is free forms an enthymeme when combined with the maxim for all are slaves of money or chance. He also includes among his examples the maxims chiefest of blessings is health for a man, no love is true save that which loves forever, and mortal creatures ought to cherish mortal, not immortal thoughts.”

Although Aristotle concludes that such declarations of general principles are only appropriate for speakers with experience in their subjects, he notes that they invest speech with moral character and can arouse strong emotion. “Even hackneyed and commonplace maxims” are effective if they suit a speaker’s purpose, because everyone loves to hear the opinions they hold about particular cases expressed as general truths. On the other hand, Aristotle recognizes that maxims can be used agonistically to advance a dispute. “When working up feelings of horror and indignation”

in an audience it is useful to declare something to be universal when it is not, he writes, and speakers should not avoid maxims that contradict commonly accepted knowledge, such as the maxims know thyself or nothing in excess. The use of maxims to contradict such commonly accepted knowledge can raise an audience’s opinion of the speaker’s character “or convey an effect of strong emotion.” As an example, Aristotle writes it will raise an audience’s estimation of a speaker for the speaker to say “we ought not to follow the saying that bids us treat our friends as future enemies: much better to treat our enemies as future friends,” an enthymeme combining the gnomic aspect with the figure of chiasmus, or specifically antimetabole. If accepted by an audience, such declarations of moral principle reveal the speaker as a person of good moral character.*° As Lawrence Rosenfield and Thomas Mader note, enthymemes also give pleasure because “their maxim-like injunctions come to the audience as dramatic revelations.”* The relationship between enthymemes and the gnomic aspect reveals a close connection between Aristotle’s conception of the enthymeme, the sophistic background of his Rhetoric, and epideictic rhetoric, contradicting any clean separation of judicial and epideictic discourse into separate genres. According to Jeffrey Walker, the civic speeches in Homer’s works of the seventh or eighth centuries BCE are “punctuated with sententious, gnomic sayings that invoke general truths or premises,” which probably constitute “poetic formulae derived from traditional epideictic registers.”

Skillful speakers seamlessly wove such material together with “original, pragmatic utterance” that applied to the case at hand.” In the eighth century BCE, the Greek poet Hesiod described the eloquence of the wise prince (basileus) in civic forums using the term epea (words, tales, songs, or sayings) rather than logos (word, speech, discourse) or onoma (name, utterance). Several commentators have suggested that Hesiod’s use of the word epea may signify the oral-formulaic phrases of epos, the “winged words” of gods and bards or verses or rhythmic formulae which, Walker writes, constitute “the entire range of cultural lore an oral society cultivates, disseminates, and preserves in rhythmic discourse,” including “discursive and/or catalogic representations of knowledge and belief— genealogies, hymns, prayers, curses, proverbs, instructions, ‘scientific’ or technical information, ethical exhortation, praise and blame, and so on.”™ According to Walker, the cultural lore encoded in epea generally included “the customary laws or ‘precedents, the themistas, on which the civic rhetoric of the basileus is grounded.” For the wise prince to be persuasive in civic forums he had to be able to “recall, interpret, and apply to the question at issue the memorious lore” encoded in epos and to “compose his own speech in rhythmic phrases and formulae, sententious language resembling traditional epea, as he carries off the mind of the fractious crowd on the stream of his ‘honeyed’ discourse.” Epideictic not only rehearses such conventional codes of value and meaning, Walker notes, but can “work to challenge or transform conventional beliefs” by shaping “the fundamental grounds, the ‘deep’ commitments and presuppositions, that will underlie and ultimately determine decision and debate in particular pragmatic forums.”°°

Although Aristotle emphasized the logical function of enthymemes when he appropriated the term from Isocrates and other sophists, the numerous enthymematic topics he lists in his Rhetoric almost exclusively reflect various antitheses which serve to amplify subjects.” Before Aristotle’s reconceptualization of the enthymeme, Walker writes, the term generally referred to “heartfelt reasoning,” the related adjective enthymios meant “taken to heart,” and enthymemes were often used in epideictic speeches.** The term enthymeme was not used as a term of art before the fourth century BCE,” and pre-Aristotelean conceptions were as important as the Aristotelean conception of the enthymeme to later writers.° The enthymeme was a commonly occurring discursive practice, in other words, like the amplifying figures it often employed.® Walker explains that Aristotle’s conception of the enthymeme presupposes a long sophistic tradition in which it was approached either as a general quasi-syllogistic discursive figure or procedure combining intuitive inference with affective force and passionate response,” or more technically a “turn or ‘cap’” in argumentation that exploited “a cluster of emotively resonant, valueladen representations and systems of oppositions” made present through amplification devices such as figures and rhythm to produce a “passional identification” with a stance.

In both pre-Aristotelian and Aristotelian rhetoric, the enthymeme possessed a powerfully affective dimension closely intertwined with the performative amplification of subjects characteristic of epideictic, and, accordingly, Aristotle’s emphasis on the enthymeme as “the substance of rhetorical persuasion” substantially qualifies his contrast between those who used enthymemes and those who sought to move judges to “anger or envy or pity”® as less of a contrast between logic and emotion than a particular approach to their relationship.*° Moreover, Aristotle’s emphasis on the enthymeme as most suitable to judicial discourse specifically casts doubt on his division of judicial and epideictic discourse into separate genres.” In sum, Aristotle’s effort to discipline epideictic and separate it from judicial discourse conflicts with his own emphasis on the enthymeme, and may be read as a sort of whistling in the dark which arose from a fear of sophistic amplification practices.

The separation of judicial and epideictic discourse into separate genres arose concomitantly with the belief in the classical world that the province of rhetoric should be limited to case-specific questions, or hypotheses, while theses, or general questions, should be the domain of philosophy. In the classical world no less than today, legal and rhetorical reasoning have both been associated if not equated with the case-specific reasoning of equity and casuistry. Like Aristotle’s definition of the equitable person as “no stickler for his rights in a bad sense but [one who] tends to take less than his share though he has the law on his side,” the legal concept of equity refers to the power granted to a judge to apply broad principles of fairness in order to “mitigate the harshness of strict application of a statute, or to allocate property or responsibility according to the facts of the individual case.”® For this reason, Chaim Perelman refers to equity as “the crutch of justice.”” Principles of equity empower a court to consider the particularity of cases in order to mitigate the unforeseeable effects of general rules. The practice of appealing to equity against the rigid application of laws was commonly taught in the schools of the Roman Republic and rewarded by Roman judges,” and George Kennedy has suggested that Roman rhetoric may have supported the “relaxation of rigid interpretation of word in favor of intent” which epitomized Roman equity.” Since its development in Roman law, the legal concept of equity has been so closely associated with rhetoric that the two are sometimes synonymous.”

The connection between equity and the facts of particular cases closely parallels casuistry, a case-based method of resolving moral conflicts by analogical reasoning from precedents arranged according to their proximity to paradigmatic cases. In The Abuse of Casuistry, Albert Jonsen and Stephen Toulmin compare casuists to “Supreme Court justices who eschew obiter dicta and refuse to present opinions going beyond the facts of the immediate case.” Separately, Toulmin proposes that we understand the historical development of philosophical concepts in the same manner as “common-law historians have characterized the historical development of legal concepts,” citing Justice Oliver Wendell Holmes’s The Common Law and Edward Levi’s An Introduction to Legal Reasoning.” Jonsen and

Toulmin link casuistry to the Aristotelian tradition of practical reasoning, contrasting deductive reasoning with a rhetorical perspective that reasons not from “single chains of unbreakable deductions” but by “accumulating many parallel, complementary considerations.””° Due to this contrast, casuistry like equity is often simply equated with rhetorical reasoning.” In an 1839 essay, Thomas De Quincey defends casuistry’s particularism as a practical necessity despite its frequent ill-treatment by rule-bound moralists, and he specifically aligns it with legal advocacy by defining a casuist as a kind of lawyer or special pleader in morals, such as those who, in London, are known as Old Bailey practitioners, called in to manage desperate cases—to suggest all available advantages—to raise doubts or distinctions where simple morality saw no room for either—and generally to teach the art, in nautical phrase, of sailing as near the wind as possible, without fear of absolutely foundering.”

“The name, the word casuistry, may be evaded,” De Quincey writes, “but the thing cannot; nor is it evaded in our daily conversations.””

As intuitive as the connection of lawyers and cases may be, the casuistical dimension of legal reasoning provides only one side of a common topic of legal discourse regarding the relationship between particular facts and broader truths. In Cicero’s early rhetorical treatise De Inventione, he ridicules the Stoic philosopher Hermagoras for including within the purview of rhetoricians not only those “special questions” that pertain to specific people, places, or things, but such “general questions” as “Is there any good except honor?” Another favorite example of such general questions in the classical world was “Is marriage good?”® According to the young Cicero, it was “the height of folly to assign to an orator as if they were trifles these subjects in which we know that the sublime genius of the philosophers have spent so much labor.”*!

In his more mature writing on rhetoric, however, Cicero famously reversed his view that special questions belonged to rhetoric and general questions to philosophy, as reflected in the following comment of the interlocutor Crassus in Cicero’s De Oratore, written in the form of a dialogue between accomplished Roman trial lawyers:

The most ornate speeches are those which take the widest range and which turn aside from the particular matter in dispute to engage in an explanation of the meaning of the general issue, so as to enable the audience to base their verdict in regard to the particular parties and charges and actions in question on a knowledge of the nature and character of the matter as a whole.”

Cicero rejected the entire approach to rhetoric in his earlier treatise De Inventione as nothing more than a “long string of precepts. ..which slipped out of the notebooks of my boyhood,” unworthy of his later age and experience “gained from the numerous and grave causes in which I have been engaged.” While De Inventione elaborated the technical precepts of Roman scholastic rhetoric,“ after a lifetime of experience as a legal and political orator—including his election to the offices of quaestor, aedile, praetor, and consul—Cicero expressed contempt for such scholastic rhetoric and instead claimed that the ideal orator must pursue a broad education not only in philosophy but in “all the liberal arts.”*

The broad education that Cicero recommended in his later work would enable the orator to “argue every question on both sides, and bring out on every topic whatever points can be deemed plausible,” much as the interlocutors of De Oratore themselves agree to argue every question on both sides.** In this way, Cicero sought to join rhetoric and philosophy, hypotheses and theses, in a single approach to rhetoric characterized by a “discrimination of perspectives and the differentiation of frames of reference.”*” In De Oratore, the participants in the dialogue virtually lampoon the formulaic approach of De Inventione and similar handbooks prevalent in Rome at the time, but for reasons that differ markedly from Aristotle’s critique of rhetorical handbooks.** Antonius complains that the precepttaught youth were “redolent rather of the training-school and its supplingoil than of our political hurly-burly and of the Bar,”* and he warns that the “requirements of a pitched battle are not those of a sham fight or our own training-ground,’”’ and Crassus remarks that if his audience is content with the rules drawn up by the writers of rhetorical handbooks, “you are making the orator abandon a vast, immeasurable plain and confine himself to quite a narrow circle.”*' Unlike Aristotle’s rejection of rhetorical handbooks on legal advocacy for their focus on methods of arousing prejudice, pity, anger, and other emotions—which have “nothing to do with the essential facts” of a case but are merely personal appeals to a judge”**—the interlocutors of Cicero’s De Oratore reject handbooks only for being narrowly formulaic.

Cicero’s critique of the formulaic precepts found in such handbooks is closely related to his inclusion of theses, or general questions, within the purview of orators and his belief in the unity of rhetoric and philosophy. Early in the prologue to the first book of De Oratore, Cicero contrasts his own view that eloquence depends on “the trained skill of highly educated men” to his brother Quintus’s view that eloquence must be “separated from the refinements of learning and made to depend on a sort of natural talent and on practice,”*’ views occupied by Crassus and Antonius, respectively, in the dialogue of De Oratore.” Crassus argues that the ideal orator requires “profound insight into the characters of men, and the whole range of human nature, and those motives whereby our souls are spurred on or turned back,” knowledge previously considered to be the exclusive province of philosophers.” Accordingly, an orator may be expected to know “of the immortal gods, of dutifulness, harmony, or friendship, of the rights shared by citizens, by men in general, and by nations, of fair-dealing, moderation or greatness of soul, or virtue of any and every kind.”

It is obvious whether a speaker in the courts and assemblies has “merely floundered about in this declamatory business,” Crassus argues, “or whether, before approaching his task of oratory, he has been trained in all the liberal arts,””’ and he criticizes orators who “flit around the Courts, to loiter about the Bench and judgment-seats of the praetors” without even knowing the common law, when rights are debated concerning “long user, guardianship, clanship, relationship through males, alluvial accessions, the formation of islands, obligations, sales, party-walls, ancient lights, rain-drop from the eaves, the revocation or establishment of wills.”°* He describes the statesmen of old as men consulted not only on points of law but about “marrying off a daughter, buying a farm, tilling their estates, and in short every sort of liability or business,” both religious and secular.” The overarching argument of De Oratore seeks to emphasize the value for an orator of a broad education compared to the “rigid formulism of contemporary handbooks.”'!”