The Poetic Contract
The defense of law against the popular indictment of lawyers and their language first received a learned representation in secularized terms in the work of the rhetoricians. For obvious reasons rhetoricians were interested in and dissatisfied with the curriculum of legal study. From the available evidence of distribution as well as on the basis of textual references, it would seem likely that most of those who studied at the Inns of Court would at some point study rhetoric in its Ciceronian and so forensic aspects. The first scholarly works to attempt to present an account of the form of law as argumentation were curricular/rhetorical manuals. Works such as those of Leonard Cox (1530), Thomas Wilson (1553), Richard Rainolde (1563), and George Puttenham (1589) devoted extensive attention to law and to legal examples. Although they tended toward a formulary treatment of their subject, there are two senses in which their work may be adduced in relation to the emergent jurisprudence at a conceptual as opposed to purely institutional level. The first is in terms of a poetic or rhetorical contract at the origin of the social and hence legal form, a theory of speech as logos that was incorporated into the dialectical conception of notation and at a more abstract level was repeated in the primary motive force of Ramist jurisprudence, the search for and imposition of a linguistic order on the positive manifestations of a higher law. The second is in terms of topics or commonplaces of legal argument organized according to criteria drawn from the rhetorical art of memory and subsequently and ironically developed in an explicit form in the jurisprudential account of method.
The initial demand was simply that lawyers and their schools of manners at the Inns of Court should not sever all links with scholarship. For Cox, "judicial oratory belongs to controversies in the law and pleas, which kind of oration in time past belonged only to judges and men of law but now for the greater part it is neglected by them though there is nothing more necessary than to quicken them in crafty and wise handling of their matters." Such criticism was echoed and expanded in later works on the basis of both historical and conceptual lineages. In terms of its practice, law was the art of pleading and of arguing a cause. By virtue of that subject matter it was, and had always been, intrinsically
linked to rhetoric: it was impossible either to plead or to argue skillfully without the aid of the art that set out and explained the appropriate forms of all argumentation. That rhetoric was essential to law was indisputable. What occasioned concern was that the rhetoric employed was so frequently bad rhetoric. In such a fashion Puttenham argued that "in all deliberations of importance where counsellors are allowed freely to opine and show their conceits, good persuasion is no less requisite than speech itself." Good persuasion was impossible without a knowledge of the figures and order of speech. What was wrong with law was simply the appalling state of the rhetorical art in legal practice, a point that Wilson and Puttenham, both of whom were members of the Inns of Court, labored to the extreme. Pleadings were ambiguous, narrations disordered, figures inappropriate, language "inkhorn" and "powdered," style opaque, and topics unseemly. The consequence was that poor lawyering led to clients losing their possessions and their lives, and the commonwealth was in consequence endangered.
Rhetorical concern for the decay of legal argument was predicated not simply on the immediate harm caused by legal ineptitude but more profoundly on a notion of linguistic contact. To abuse language was a sin against both the order of disciplines and the linguistic fabric of social life. In an argument that in this instance stemmed alternately from the myth of Hegesias and from Cicero's De Inventione, the original ground of language was poetry; through the poetic apprehension of reality through language, rhetoric, as successful communication, was to be understood as the bond on which all social order relied. In the argument's strongest form, as presented by Puttenham, poetry creates and describes the social world through the use of images. Without the creative power of poetic language, society would never have formed, knowledge would have been impossible, and law irrelevant: "The profession and use of poetry is most ancient from the beginning, and not as many erroneously suppose, after, but before any civil society was among men. For it is written that poetry was the original cause and occasion of their first assemblies. Observing that the speech of God was originally presented in metrical forms, Puttenham elaborated on classical histories in which the first instances of all forms of knowledge, the first priests, oracles, seers (videntes ), politicians, and lawyers were all poets. Using the terminology of rhetoric and contract rather than that of poetics, the same theme was pervasive in Wilson's Arte of Rhetorique: only by virtue of eloquence, the "gift of utterance," was the state of nature transformed into that of civil society, such is "the force of the tongue and such is the power of eloquence and reason, that most men are forced even to yield in that which most stands against their will." It was thus in a discussion of the second part of rhetoric, namely disposition, that Wilson specified the
linguistic basis of all law in terms of proper and proportionate speech: "I know that all things stand by order and without order nothing can be. For by an order we are born, by an order we live, and by an order we make our end. By an order one ruleth as head and others obey as members. By an order realms stand and laws take their force."
The order to which Wilson attributed such primordial force was a rhetorical or argumentative one based on the appropriate use and disposition of the figures and topics of the genres of speech. Without that intrinsically poetic order, laws would lose their force and governments would fall into disrepute. In terms of the forensic art this emphasis was spelled out in the demand that lawyers accept the originary linguistic mediation of all law and observe the appropriate forms of argument and proof. Although emphasis varied between the formulary and the Ciceronian rhetorical schemes, a theme common to all vernacular accounts was that the mother tongue could be ordered and expanded to provide a national rhetoric equal to that of the classics. The new national rhetorics were to pay considerable technical attention to law, with the judicial oration figuring prominently in the analysis of argumentative (sentential) and "proving" figures. With respect to later elaborations of dialectic it is worth emphasizing that the delineation of the legal genre paid special attention to the political and so practical facility of rhetorical method, which was taken to include both invention and disposition or judgment. Forensic rhetoric would therefore cover the topics and logic of proof, the figures of argument, the method of memory, and the proportionate style. So, too, it would cover the order of narration, questions of law and of fact, fallacies (elenches ) of argumentation, and vices (cacozelia ) of style. In short, a body of scholarship devoted to the cause of rescuing lawyers from the barbarity of their language and the sophistical casuistry of their argumentation already existed and lay open to exploitation at the time that Fraunce and other proponents of the new jurisprudence attempted to set out a distinctive method of legal studies.