College of Law Faculty Scholarship
Source Publication (e.g., journal title)
Legal Communication & Rhetoric: JALWD
Document Type
Article
Publication Date
January 2016
Abstract
For thousands of years, the contours of Western legal argument have remained unchanged. Since the time of the ancient Greeks, lawyers have been presenting arguments in the same basic format, with a heavy reliance on the concept of logos, the idea that arguments are most persuasive when presented in a clear deductive logical structure using clean-cut categories. Forming the basis for the terms that appear in logocentric legal arguments, categories allow humans to group facts and information together into classes. For instance, chairs, tables, and beds occupy the category of furniture and cars; trucks, and motorcycles occupy the category of vehicle. Since ancient times, humans have conceived of categories using a box metaphor — everything in the box is a member of the category. However, modern cognitive science holds that human categorization choices do not take the shape of a symmetrical box. Rather, categories take a more blurry, radial shape. When we study how categories affect legal meanings, it becomes apparent that the overuse of boxed-in legal categories can produce distortion and injustice. Although categories are helpful for converting law’s messy landscape into a clean linear form, categories can be harmful because they tend to erase important context from the client’s story, obscure the power relations that produce category choices, and oversimplify complex problems. If longstanding approaches to categorization and argumentation do not mirror how we really think and can also produce unjust legal outcomes, why have they remained in our legal culture for so long? Drawing upon legal history, jurisprudential trends, and cognitive science, this article theorizes that ancient legal-thought structures have endured so long because they offer a way to present complex information in a clean and structured way, which is optimal for how humans process information. This article draws on two separate areas of cognitive science: (1) categorization theory, which relates to how humans categorize facts that exist in the world, and (2) information processing, which explains how humans process information in a presented form. Ironically, the studies on categorization tell us that we do not actually categorize in a neat and orderly form, but the studies on information processing explain that we do respond positively when complex information is presented in a neat and orderly form. This article proceeds in three parts. Offering both explanation and critique, section I provides an overview of classical legal-thought structures, explains the infrastructural role this type of thinking plays in U.S. legal culture, and considers the potential for injustice when classical legal-thought structures are used uncritically. This section also draws upon the work of cognitive scientists to explain how classical legal thought patterns do not accurately represent how we really think. Drawing upon a different area of cognitive science, section II theorizes why law’s ancient thought structures have remained unchanged for thousands of years. Although they do not mirror how we really think, these reasoning forms are resilient because they provide an optimal structure for the retention and understanding of complex information. Finally, from a professional development perspective, section III explains why critical category skills are necessary for effective legal advocacy and then offers examples designed to engender a critical and empathic understanding of how categories work in a practical legal context.
Recommended Citation
Jewel, Lucille, "Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories" (2016). College of Law Faculty Scholarship. 300.
https://ir.law.utk.edu/utk_lawpubl/300