Rhetoric and the Judiciary
Abstract: This paper aims to show that the influence of rhetoric, as expounded by Aristotle, extends to this day through the modern judiciary system. It will explore the influence of rhetoric in the way judiciaries receive arguments and external influence of rhetoric on the way judiciaries exercise their capacities.
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Rhetoric is an ancient art. As art, it was one of the pinnacles of the classical world, with its practice refined by Greeks and Romans throughout the centuries. Aristotle wrote the defining treatise on the practice of Rhetoric, a work aptly titled “Rhetoric”. The purpose of this paper is to explore the importance of rhetoric, as defined and expounded by Aristotle, to the modern American judiciary system.
Aristotle and Rhetoric
According to Aristotle, the essence of rhetoric is contained in the modes of persuasion. (Aristotle, 2004) He was writing against what he saw as the reduction of the rhetorical arts to the swaying of prejudices and emotions of the audience to be convinced. Aristotle declared that persuasion was the capacity to demonstrate, for a man will not believe in something that cannot be demonstrated to him. (Aristotle, 2004)
Aristotle defined rhetoric as “the faculty of observing in any given case the available means of persuasion”. (Aristotle, 2004) There are several aspects to persuasion, not all of which concern rhetoric, such as witnesses or confessions. The rest are to be constructed through the use of rhetoric. (Aristotle, 2004) In this, rhetoric has three modes, which are “ethos”, “pathos” and “logos”.
“Ethos” refers to the capacity of the speaker to persuade through the use of his or her own personal character. (Aristotle, 2004) “Pathos” refers to the capacity of the speaker to persuade by putting the audience in a certain frame of mind. (Aristotle, 2004) “Logos” refers to the capacity of the speaker to persuade through the use of his own words, logic and systematic arguments. (Aristotle, 2004)
There are three kinds of rhetoric, based on who the audience is. These are “political rhetoric”, “forensic rhetoric” and “epideictic oratory”. “Political rhetoric” is rhetoric aimed at legislators, for which the focus is on future matters and the end is to determine expediency or inexpediency. “Forensic rhetoric” is rhetoric aimed at judges or jurors, for which the focus is on past matters and the end is to determine justice or injustice.. “epideictic oratory” is rhetoric aimed at observers, for which the focus is on the skill of the speaker and the end is to determine honor or dishonor. (Aristotle, 2004) For this paper’s purposes, the writer shall focus on forensic oratory.
Rhetoric and the Judiciary
Rhetoric significantly influences the way arguments are made and held in many Western judiciary systems. Judgments issued by courts, while binding, must always attempt at persuasion. The way arguments are framed can affect the acceptance of an argument, as well as the way a particular judgment acts as precedent of later rulings. (Biletzki, 2001) In an article about judicial rhetoric in an Israeli trial regarding the use of torture, there is a quote from the Israeli High Court, “Essentially, we did not do so due to the fact that it was not possible for the Court to hear the sort of arguments that would provide a complete normative picture, in all its complexity. At this time, by contrast, a number of applications before us have properly laid out (both orally and in writing) complete arguments from sides’ respective attorneys. For this we thank them.” (Biletzki, 2001) One would ask what sort of arguments would paint a complete normative picture. The writer of the article expresses frustration at the court’s inability to hear various victims represented by rights organizations. This suggests an implicit understanding of rhetorical techniques: one needs to use ethos (in this case, the credibility of rights organizations), pathos (the suffering of victims) and logos (the concrete arguments) in order to create a complete picture to facilitate judgment, especially where normative concerns are involved.
Rhetoric from external sources can also influence the way the judiciary behaves. In the United States, presidential rhetoric has been known to sway the actions of a judiciary. (Randazzo, 2008) Many US Presidents have been good orators, especially among the early 19th and 20th centuries. For example, President Theodore Roosevelt made many references to judges in his many speeches, mostly about the obligation of judges to “brush aside the pleas of special interest when pleading is not rounded on righteousness”. (Randazzo, 2008) This, at an age wherein trust-busting became a common phenomenon. This particular correlation can be observed where US Presidents direct a large amount of rhetoric at judges, usually in the form of forensic rhetoric (i.e. the justness of judicial activism) over the duties and limitations of judges. (Randazzo, 2008)
The power of rhetoric lies in the capacity of words to persuade. As such, while rhetoric itself is not political science, it plays a role in politics. This is evident in the modern judiciary system. The effects of the art of rhetoric as handed down by Aristotle is evident in the way courts and judges take in arguments, especially in how they perceive the completeness of an argument. Rhetoric also shapes and pressures the modern judiciary externally, in the form of the rhetorical influence certain public figures (i.e. the US President) hold over members of the judiciary.
Aristotle. (2004). Rhetoric Book I (trans. by W. R. Roberts). Dover: Courier Dover Publications.
Biletzki, A. (2001). The Judicial Rhetoric of Morality.
Randazzo, K. A. (2008). Presidential Rhetoric and the Federal Judiciary: The Roots of Politicization. APSA 2008 Annual Meeting. Boston.