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Forensic rhetoric, as coined inAristotle'sOn Rhetoric, encompasses any discussion of past action including legal discourse—the primary setting for the emergence ofrhetoric as a discipline and theory. This contrasts withdeliberative rhetoric andepideictic rhetoric, which are reserved for discussions concerning future and present actions respectively.[1]
In contemporary times, the wordforensic is commonly associated withcriminal andcivil law referring specifically toforensic science. It is important to note that the termforensic associated with criminal investigation exists because forensic (or judicial) rhetoric first existed.[2]
An introduction of the three types of rhetoric (forensic, deliberative, and epideictic) occurs in Book I Chapter III of Aristotle'sOn Rhetoric.[3] Discussion of forensic rhetoric is found in Book I, Chapters X–XV, outlined as follows:
According toGeorge A. Kennedy, rhetoric emerged as a response to legal freedoms introduced in Greece around 467 BCE. "Citizens found themselves involved inlitigation... and were forced to take up their own cases before the courts. A few cleverSicilians developed simple techniques for effective presentation andargumentation in the law courts and taught them to others."[7] Thus, trained capacity in speech-making and the theory about such speech-making exists because of legal exigencies.
The Stasis Doctrine, proposed byHermagoras, is an approach to systematically analyze legal cases, which many scholars include in their treatises of rhetoric, most famously inCicero's "De Inventione."[8] Encyclopedia authorJames Jasinski describes this doctrine as taxonomy to classify relevant questions in a debate and the existence or nonexistence of a fact in law.[9] The Stasis Doctrine is incorporated in rhetoric handbooks today.[9]
Since forensic rhetoric's original purpose was to win courtroom cases, legal aids have been trained in it since legalfreedoms emerged. Because in early lawcourts, citizens were expected to represent themselves and training in forensic rhetoric was very beneficial.[10] In ancient Athens, litigants in a private lawsuit and defendants in a criminal prosecution were expected to handle their own case before the court—a practice that Aristotle approved of. The hearings would consist of questions addressed to the litigant/defendant and were asked by a member of the Court, or the litigants could ask one another; these circumstances did not call for legal or oratorical talent—therefore oratory or legalism was not expected, encouraged, or appreciated. After the time of Solon, the Court of Areopagus was replaced and the litigant/defendant would deliver a prepared speech before the courts to try and sway the jury; they expected dramatic and brilliant oratorical displays. Now, listeners appreciated oratorical and even legalistic niceties, such as appeals to passion, piety, and prejudice. It was at this point in Athens history where the forensic speech-writer made his first appearance. The speech-writer would prepare an address which the litigant/defendant memorized and delivered before the court. Forensic speech-writing and oratory soon became an essential part of general rhetoric.[11] After the nineteenth century, forensic rhetoric "became the exclusive province of lawyers,” as it essentially remains today.[12] These people were experts in the court system and dominated forensic rhetoric, since it is tied to past events—thus the relationship between law and rhetoric was solidified.[13]
Thecritical legal studies movement occurred because asJohn L. Lucaites, a prominent author on the subject, concluded bothlegal studies and rhetorical scholars desire to demystify complex law discourse.[14] His task was to "explore how 'the law'—conceptualized as a series of institutional procedures and relationships—functions within a larger 'rhetorical culture'."[7]
AuthorJames Boyd White cultivated thelaw and literature movement, promoting the relationship between law and rhetoric at the constitutive level of discourse.[15] The namelaw and literature relates to both the study of law in literature (such as legal fiction) and law as literature (the community built from a discourse community).[16] This movement asserts that the process of interpretation, both in law and literature, is rhetorical: "interpretation is a process of constructing arguments and the meaning of a text emerges through rhetorical interaction."[7]