The predominance of Christian rhetoric signaled the death of classical rhetoric as a coherent discipline in the Middle Ages. Rhetoric was fractured into several discrete subjects, such as logic, grammar, poetry, preaching, and letter writing.50 Although some interest in classical rhetoric survived, it took the primary form of an interest in Aristotle’s treatises on logic in The Organon.51 Aristotle’s Rhetoric was virtually ignored until its translation into Latin in the thirteenth century.52 As a result, logic continued to be severed from rhetoric in a way that Aristotle did not envision. When university education became available throughout Europe in the eleventh and twelfth centuries, students were required to take separate courses in logic, grammar, and rhetoric.53 This trivium became the traditional curriculum for undergraduate education.54 Due to the separation of logic and rhetoric as well as the obscurity of Aristotle’s Rhetoric, logic dominated the trivium.55 Although Aristotle’s logic was useful to lawyers, medieval scholars assumed it was more helpful to philosophers in answering general questions about man’s knowledge of the world.56 In this way, logic became a part of philosophy, leading the way for doctrinal faculty to claim “the law” for themselves.
During the European Renaissance, the subjects of classical antiquity were reunited with their original form.57 Like painting, sculpture, and architecture, rhetoric was reborn, and once again, it was valued in judicial and other forms of oratory.58 Not surprisingly, the Renaissance humanists were largely responsible for rhetoric’s revival. They were interested primarily in human language and interaction, and they viewed rhetoric as a noble art that showcased “human beings at their best.”59 Although Aristotle’s Rhetoric had been translated into Latin more than 200 years earlier, it did not become popular until the Renaissance.60 The works of Roman rhetoricians as well, such as Cicero and Quintilian, were re-discovered during this period.61 With the invention of the printing press, these re-discovered works could be quickly reproduced and distributed throughout Europe.
Unfortunately, the revival of a coherent rhetoric was short-lived. In 1549, the French logician and humanist, Peter Ramus, wrote a thesis criticizing Quintilian for failing to understand that the study of rhetoric was restricted to style and delivery.62 As a teacher of both rhetoric and philosophy, Ramus was frustrated by the overlap between rhetoric (an art form appealing to logic, emotion, and character) and philosophy (the science of knowledge acquired primarily through logic).63 Unlike the Italian humanists, Ramus had no interest in promoting rhetoric; he wanted to teach students to write in a clear and simple style, distinctly unlike that of Cicero.64 He decided, therefore, that logic, the source of knowledge and argument, should forever belong to philosophy, while style and delivery should belong to rhetoric.65 “Ramism” had little influence in Italy and Germany, but influenced education in England, France, and Spain.66 The Puritans brought Ramist beliefs to the New World, where they quickly took hold.67 Harvard College, for example, founded in 1636, modeled its curriculum on Ramism.68 Ramus’s influence can be seen today in the allocation of subjects among various college departments:logic still belongs to philosophy, and style and delivery are divided among English, speech, and communications departments.69 Aristotle’s rhetoric as a comprehensive discipline is no longer taught in Western colleges and universities. In fact, students coming to law school with an undergraduate major in the classics are so few that law schools do not even keep track of them.
The seventeenth century was marked by the development of epistemology, the study of how man acquires knowledge. The epistemologists rejected logic as the path to knowledge.70 They also rejected the medieval university system, with its emphasis on Aristotelian logic and the Catholic Church. Instead, they sought knowledge using inductive methods. Francis Bacon, for example, articulated a method of careful observation that led from particular to more general conclusions about the nature of things. Since human perception was not necessarily reliable, those conclusions then had to be tested.71 As for logic, the practice of moving from general principles to particular conclusions, Bacon thought it could only demonstrate the relationship between things that were already known.72 Like Plato, Bacon’s primary concern was in discovering truth, but he disagreed with Plato that a contemplative life devoted to dialogue and reason could produce knowledge.73
Although early epistemologists like Bacon, Descartes, Locke, and Vico agreed that logic could not produce knowledge, they did not agree on the value of rhetoric. Bacon had been a successful lawyer and judge, and as a result, perhaps, he knew the value of persuasive speech. Accordingly, Bacon believed that reason alone was not enough to convince people of the truth: rhetoric was needed to appeal to the emotions as well.74 On the other hand, Descartes, the French philosopher and mathematician, had little interest in rhetoric.75 Like Bacon, he had a law degree, but he never practiced law. Descartes believed that “eloquence,” his word for rhetoric, was a gift, not a serious subject of study; one’s ability to persuade had little to do with one’s training.76 Like Plato, Descartes thought rhetoric dealt only with probabilities, and therefore, it could not lead to truth.77 Locke, an English philosopher, thought rhetoric was a “powerful instrument of Error and Deceit,”78 whereas Vico, an Italian rhetoric professor, thought rhetoric could actually produce knowledge.79 With the exception of Vico, even those epistemologists who championed rhetoric’s worth assumed that its function was to communicate the truths that philosophy (by that time, an inductive process) discovers. In this way, they perpetuated the division of rhetoric that began with Ramus: the discovery of knowledge remained with philosophers, leaving rhetoricians with the sole task of delivering that information.
The epistemologists of the eighteenth and nineteenth centuries were far more enamored of rhetoric than their predecessors, but they did little to advance its standing as a coherent and substantive discipline. George Campbell, a Scottish minister, was interested in observing and articulating principles of argument. His Philosophy of Rhetoric, published in 1776, combined the best theories of the ancient and contemporary philosophers.80 However, he too believed that knowledge was used in but acquired outside the rhetorical process. He too rejected logic as the source of knowledge and urged rhetoricians to use experience, analogy, testimony, and statistics to establish the existence of facts.81 Although Campbell was not troubled by rhetoric’s probabilities as Plato was, he did hold a certain contempt for lawyers. Campbell observed that even in his day, lawyers’ explanations of the law had become so complicated and convoluted as to become “distinguished by the name chicane.”82 Richard Whately, another of rhetoric’s devotees, was an English minister in the Episcopal Church. Like Campbell, he was interested in rhetoric and its ability to defend Christian beliefs in an age of growing secularism. Whately published Elements of Rhetoric in 1828, which explored in detail the nature of evidence, presumptions, and burdens of proof.83 Although his text became the precursor to modern argumentation theory, Whately too viewed the art of rhetoric as the process of putting together arguments acquired elsewhere.84 However, he disagreed with Campbell on the value of logic, criticizing Campbell’s “ignorance and utter misconception” of its nature and object.85
By the end of the nineteenth century, the interest in rhetoric had shifted from argument to literature. Stripped of the task of inventing argument, rhetoric evolved into the study of expression and style. Known as the Belle Lettres Movement, this shift was led by Hugh Blair, a Scottish minister and professor of rhetoric.86 Influenced by On the Sublime,87 an ancient Roman treatise which attempted to define taste, beauty, and sublimity, Blair and other belletristic scholars searched for taste, beauty, and sublimity in poetry, prose, and argument.88 Their study of all types of literature ultimately transformed rhetoric from the study of argument into the study of literature generally. Blair’s Lectures on Rhetoric and Belle Lettres,89 published in 1783, continued to be used in English and American schools until nearly the end of the nineteenth century.90 The impact of the Belle Lettres Movement was to eliminate rhetoric from most college curricula and replace it with courses in literary interpretation and composition. The discovery of knowledge—the substance of argument—was left entirely to philosophy departments.
Blair acknowledged rhetoric’s reputation as a “contemptible art,”91 but like Campbell and Whately, he believed it was useful, primarily for defending Christian beliefs. According to Blair, an effective rhetorician was the “most eloquent man,”92 and in his view, there was always room for eloquence. With regard to legal argument, he believed that a lawyer’s goal was to persuade judges about truth and justice in a particular case, and a lawyer should appeal primarily to reason.93 Although these later epistemologists revived interest in the construction of legal arguments, they perpetuated the schism between logic, reason, induction and the expression of argument. That schism is represented today in the notion that doctrinal courses teach substance, while legal writing courses teach composition and grammar.
IV. The Adoption of a Philosophical Rather than Practical Approach to Legal Education
As rhetoric evolved into the study of literature, law schools were forming in the United States. Tapping Reeve, a practicing lawyer in Litchfield, Connecticut, opened The Litchfield Law School in 1775,94 and in 1779, William and Mary College in Virginia hired its first law professor.95 These early schools took diverse approaches to teaching law. Litchfield, for example, focused on teaching legal principles and their application to any situation,96 while William and Mary offered a broader range of studies in law, politics, history, and science.97 In 1817, Harvard formally adopted a professional model for legal education and offered the first post-graduate degree for the practice of law.98 By the early 1870s, however, rationalism was all the rage, and legal educators became convinced that law should be taught more as a science than an art. In 1873, Charles Eliot, then President of Harvard University, stated in his annual report for academic year 1873-74 that “[a] false analogy between medical education and legal education . . . had led many to believe that practitioners would make the best teachers of law.”99 Medicine, Eliot said, could be learned from the bodies of the sick and wounded; law, on the other hand, “is to be learned exclusively from the books in which its principles and precedents are recorded, digested, and explained.”100 Christopher Langdell, then Dean of Harvard Law School, articulated his vision of the ideal law professor:
[A] teacher of law should be a person who accompanies his pupils on a road which is new to them, but with which he is well acquainted from having often traveled it before. What qualifies a person, therefore, to teach law, is not experience in the work of a lawyer’s office, not experience in dealing with men, not experience in the trial or argument of causes, not experience, in short, in using law, but experience in learning law.101
Accordingly, Harvard made dramatic changes to its law school, including the establishment of a full-time faculty, whose qualifications for teaching were their scholarship potential as opposed to their success in practice.102 In Platonic fashion, Harvard claimed “to provide the only true method” for training lawyers and thus converted the process for training lawyers from an apprenticeship system to an academic system “dominated by a new division of the profession—full-time teachers of law.”103
Then a major shift in legal pedagogy cemented the schism between the teaching and practice of law. Legal treatises, which had been used to train practitioners, were set aside in favor of judicial opinions, which were chosen to discover the true law.104 Like Eliot, Langdell believed that law should be taught as a science that yields predictable results.105 Langdell had been a successful lawyer in New York, and he was familiar with the case method of teaching law that had been introduced at New York University.106 In the early 1870s, Langdell convinced Eliot that Harvard should adopt it. Like the early epistemologists, Langdell believed an inductive method could lead to the discovery of truth (i.e., the true principles of law).107 Indeed, one of Langdell’s own students said that “his earnest endeavor was to lead his pupils to be as unerring as possible in their search for the truth.”108
Up until then, law had been taught through lecture or recitation (the practice of quizzing students on definitions and rules from their assigned reading such as treatises). Langdell’s new method was Socratic; he questioned students about the cases they had read for class and encouraged them to think for themselves—to articulate and critique the court’s reasoning. At first, students were opposed to Langdell’s method because he was not teaching them black letter law.109 Despite these complaints, Langdell won his students over, and the case method gradually became accepted. By the mid-1890s, several law schools, including Columbia, Northwestern, Cornell, and Stanford had switched to the case method.110 The nineteenth century’s formal adoption of a truth-seeking, Socratic approach to legal education was monumental; it forever changed the conception of law school as a trade school, practical and Aristotelian, to an ivory tower, theoretical and Platonic.
Once the scientific approach to teaching law took hold, the “art of rhetoric” became irrelevant. Law school was about discovering principles of law, and these principles were the province of legal scholars, not practitioners. Langdell’s successors soon realized that the Socratic method was better for teaching legal reasoning than independent principles of law.111 Nevertheless, the Socratic method of teaching persists, and doctrinal faculty still act as truth finders, striving to mold minds that can participate meaningfully in their quest for truth, with little or no regard for the students’ ability to practice law. Clinical programs did not appear until the late 1960s in response to political pressure, and legal writing programs appeared some ten to twenty years later.112 Although critical to the modern law student’s education, these practical courses are seen as different. They allow students to practice applying legal principles or truths in a given context, but they are not perceived to teach any sort of independent truth. In rhetorical terms, they teach students solely expression and style.
49 See Kennedy, supra n. 42, at 180-81.
50 See e.g. Murphy, supra n. 42, ch. 3-6.
51 See id. at 90.
52 See id.
53 Id.at 73.
54 See id.
55 See id. at 97 n. 27.
56 See e.g. Kennedy, supra n. 42, at 201-03; Brian Vickers, In Defence of Rhetoric 222-24 (Clarendon Press 1990).
57 Jean Seznec, The Survival of the Pagan Gods: The Mythological Tradition and its Place in Renaissance Humanism and Art 211-13 (B.F. Sessions trans., Pantheon Books 1953).
58 See Kennedy, supra n. 42, at 227-28.
59 Id. at 227.
60 Id. at 228-29.
61 Id.
62 See id. at 251.
63 See id. at 250-51; Edward P.J. Corbett, Classical Rhetoric for the Modern Student 556 (3d ed., Oxford U. Press 1990).
64 Kennedy supra n. 42, at 251; Vickers supra n. 56, at 283.
65 See Kennedy, supra n. 42, at 250-51; Corbett supra n. 63, at 556; Golden, supra n. 23, at 65-66 (discussing Ramus’s Dialectique published in 1555).
66 Kennedy, supra n. 42, at 251.
67 Id. at 252.
68 Id.
69 Golden, supra n. 23, at 66.
70 See e.g. Francis Bacon, Selected Philosophical Works, The New Organon bk. I, 91 (Rose-Mary Sargent ed., Hackett Publg. Co. 1999); John Locke, An Essay Concerning Human Understanding 679 (Peter H. Nidditch ed., 1979).
71 See e.g. Bacon, supra n. 70, at 89-96.
72 See id. at 91.
73 See id.
74 Francis Bacon, The Advancement of Learning 127 (Michael Kiernan ed., Clarendon Press 2000).
75 See Kennedy, supra n. 42, at 269-70.
76 Rene Descartes, Discourse on Method and the Meditations 14 (John Veitch trans., Prometheus Books 1989).
77 See e.g. Golden, supra n. 23, at 92.
78 Locke, supra n. 70, at 508.
79 See Golden, supra n. 23, at 95; Giambattista Vico, The Art of Rhetoric 7 (Giorgio A. Pinton & Arthur W. Shippee eds. & trans., Value Inquiry Book Series 1996).
80 George Campbell, The Philosophy of Rhetoric (Charles Ewer 1823).
81 James L. Golden & Edward P.J. Corbett, The Rhetoric of Blair, Campbell, and Whately 187-97 (Holt, Rinehart & Winston, Inc. 1968).
82 See id. at 231.
83 Richard Whately, Elements of Rhetoric (Douglas Ehninger ed., S. Ill. U. Press 1963).
84 See Golden & Corbett, supra n. 81, at 14.
85 Id. at 284.
86 See id. at 24-25.
87 See e.g. Longinus, On The Sublime (James A Arieti & John M. Crossett trans., E. Mellen Press 1985). Longinus was an unknown Roman author, who published this treatise sometime during the first century, A.D. At that time, the goal of the second sophists was to amaze, not to persuade. See supra nn. 43-44 and accompanying text.
88 See Golden, supra n. 23, at 75-76.
89 Hugh Blair, Lectures on Rhetoric and Belle Lettres vol. I, II (Harold F. Harding ed., S. Ill. U. Press 1965).
90 Golden & Corbett, supra n. 81, at 25.
91 Blair, supra n. 89, at vol. II, lecture XXV, 2.
92 Id.
93 Id. at vol. II, lecture XXVIII, 74-76.
94 See Charles R. McManis, The History of First Century American Legal Education: A Revisionist Perspective, 59 Wash. U. L.Q. 597, 617 (1981).
95 Id. at 609.
96 See id. at 617-18.
97 See id. at 609-12.
98 See id. at 607, 627.
99 William P. LaPiana, Logic & Experience: The Origin of Modern American Legal Education 15 (Oxford U. Press 1994)
100 Id.
101 Christopher C. Langdell, Teaching Law as a Science, 21 Am. L. Rev. 123-24 (1887) (Langdell’s after-dinner speech to the Harvard Law School Association) (emphasis added).See also Robert Stevens, Law School: Legal Education from the 1850s to the 1980s 38 (U.N.C. Press 1983).
102 Stevens, supra n. 101, at 38-39; McManis, supra n. 94, at 630.
103 LaPiana, supra n. 99, at 7.
104 See McManis, supra n. 94, at 630.
105 See id. at 633; Langdell, supra n. 101, at 123 (“L]aw is a science, . . . . If law not be a science, a university will consult its own dignity in declining to teach it. If it be not a science, it is a species of handicraft [recall Plato’s analogy to cookery], and may best be learned by serving an apprenticeship to one who practices it.”).
106 McManis, supra n. 94, at 633.
107 See id.; Bruce A. Kimball, Christopher Langdell: The Case of an ‘Abomination’ in Teaching Practice, 20 NEA Higher Educ. J. 23, 25 (Summer 2004).
108 Kimball, supra n. 107, at 28.
109 See id. at 31.
110 Id. at 34.
111 See McManis, supra n. 94, at 633-34.
112 See Boswell, supra n. 21, at 1187-88; Stanchi & Levine, supra n. 2, at 7.