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I’m teaching an upper-division rhetorical theory course about legal rhetoric in which I specifically focus students on the forensic rhetoric of adjudicating particular cases in dispute. Accordingly, among other subjects of the course, one of the units focuses students on the casuistic or “case method” of reasoning from precedents in judicial rhetoric, a mode of reasoning often simply called “rhetorical reasoning” in recognition of its inherently rhetorical quality. My goal in the unit is not only to illuminate certain defining features of legal rhetoric but also to illuminate the nature of rhetorical reasoning. Critiquing as it does principle- or rule-based reasoning, such casuistic or case-based reasoning claims analogical reasoning as one of its central methodological tenets, and analogical reasoning is often simply called “legal reasoning” given its importance to the appeals lawyers and judges make to precedent.
I wanted to design an in-class exercise for students to engage in this form of reasoning at its most basic level and developed an exercise the details of which may be found here. In a nutshell, after breaking students into several small groups, I asked them to formulate four analogies that favored or praised Bob in the hypothetical scenario below and four analogies that tended to disfavor or blame Bob, dividing their analogies equally between those using real and those using fictional sources:
Jack, Jill, and Bob were members of a gang. They went broke and decided to commit a robbery. They decided that the easiest way to go about this would be to wait on a certain street corner in a rich neighborhood until it was mostly deserted and rob the wealthiest-looking person left once the crowd thinned out. They agreed Jack would get a fake gun to use to intimidate their victim so they wouldn’t have to use violence, and Bob would pull the gun while Jack and Jill collected the money and valuables from the victim. The next night the three set out to execute their plan. They hung around the street corner until there were only a few people left, then approached a wealthy-looking man and woman walking down the street and demanded the couple’s money and jewelry while Bob pulled the gun and waved it at them threateningly. The couple initially reacted with shock and did not respond to the demands for their money and jewelry, so Bob waved the gun at them some more and again demanded money. The man made an aggressive motion toward Bob, and Bob pulled the trigger in surprise, which to Bob’s surprise discharged a real bullet. The shot killed the man, who fell into the woman’s arms as Jack, Jill, and Bob fled the scene. When they had gotten far enough away to stop running, Bob demanded to know why the gun was real. Jack told him he could not find a good enough fake and decided a real gun would be much more believable. Jack claimed he thought Bob knew the gun was real.
Although this hypothetical scenario invites analogies that specifically address legal topics, similar exercises could use hypothetical moral or ethical scenarios in the tradition of a casuistic case method.
Students in each of the groups began slowly, one group even complaining after a few minutes of considering the assignment that they found it difficult. By 10 minutes into their discussion, however, all of the students were rapidly developing analogies to satisfy the assignment. Once they began to invent analogies, they quickly discovered there was no end to the possibilities and they enjoyed selecting particularly creative and entertaining analogies from those that came to mind. All of the groups completed the assignment within 20-30 minutes. After they were finished, we reconvened as a class and compared and contrasted each group’s analogies on a multimedia screen, considering what the various analogies suggested about the issues each group identified as relevant to the hypothetical scenario and the experiential quality of analogical reasoning as they experienced it. They immediately realized, among other things, that the sources they used for their analogies might not be appropriate to all audiences, depending as the sources did on cultural experiences that only some audiences would share.
I pointed out to the students as we compared and contrasted their analogies that the analogies developed by all of the groups focused on a consistent set of common topics, including the element of mistake involved in Bob’s claim that he believed the gun was fake, whether Bob was lying about his belief that the gun was fake or whether such a belief was reasonable, whether Bob was more or less to blame than Jack and Jill given that they were all engaged in a joint enterprise and that Jack gave Bob the gun under apparently false pretenses, whether Bob should be held accountable for any harm that occurred given that waving a fake gun while claiming it to be real could foreseeably result in violence, and class issues regarding whether the group were preying on innocents or righting an economic inequity along the lines of Robin Hood. I found the class issues raised by several of the analogies particularly interesting. Simply put, the students raised a host of common topics basic to allocating responsibility to people for past events, and I used this to discuss the topical tradition of rhetoric with the students. We also discussed what audiences the various sources they drew upon in their analogies might appeal to given the experiences those sources assumed to be held by the audience, and we discussed more broadly the differences between analogical reasoning and inductive or deductive reasoning. The exercise proved helpful for all of these purposes.
The assignment not only helped me illuminate the basic premise behind legal reasoning by analogy in the development of judicial precedent and the rhetorical quality of such discourse, but was surprisingly well-received by the students. After the assignment, numerous students referenced it both in later classes and on a course blog as particularly impactul in their thinking about analogical reasoning and its rhetorical qualities. Several students remarked that the experience called to their attention how ubiquitous analogical reasoning is and how readily they develop analogies for persuasive purposes. In sum, asking students to develop analogies regarding a particular moral or legal scenario based on their own experiences in this way appears to have helped students understand the experiential and rhetorical quality of this sort of reasoning in ways assigned readings and lecture alone could not. I also suggested to students that the exercise should prompt them to reflect on how they use other forms of exemplary reasoning, and I think similar exercises could possibly require students to engage in other forms of argument from example with similarly beneficial results.
