Enthymising

Abstract

This article offers, through a reading of James Fredal’s new study, The Enthymeme, an argument for the value of the history of rhetoric to theories of legal reasoning. The argument is inspired by Fredal’s call, in his ingenious reading of the practice of Ancient Greek oratory, for a shift in thinking of the enthymeme as a logical form, and an inadequate or imperfect one (when compared to the logical forms of dialectic), towards a way of thinking that emphasises enthymising as an activity, and specifically a relational and interactive activity of making narrative. At the heart of legal reasoning, on this view, is narrativity, which has two related elements: (i) the arts of storytelling and (ii) the arts of storyworld construction, or actively and creatively experiencing the told. What makes a narrative difference—for instance, various kinds of enthymising, or bringing to mind of narrative details—also makes a normative one. Enthymising, understood in this way, thus offers a way of understanding legal reasoning as a rhetorical art of making narratives that is deeply emotional, embodied and sensory. This art illuminates not only the making of arguments by advocates in particular cases, but also the making of law by judges and others over time.