Sunday, October 25, 2015

Rhetoric: Aristotle, RBG, and the art of persuasion

Aristotle (384- 322 B.C.E.)
Rhetoric was long a required course at Fordham College as at other colleges that followed the classical education model. The class centered - back in the day - on Aristotle's classic  Rhetoric.  It is a highly accessible treatise well worth reading.  The Philosopher, as Aquinas called him, emphasizes the  discipline of facts and the need to look at both sides of a question:
[W]e must be able to employ persuasion, just as strict reasoning can be employed, on opposite sides of a question, not in order that we may in practice employ it in both ways (for we must not make people believe what is wrong), but in order that we may see clearly what the facts are, and that, if another man argues unfairly, we on our part may be able to confute him. No other of the arts draws opposite conclusions: dialectic and rhetoric alone do this. Both these arts draw opposite conclusions impartially. Nevertheless, the underlying facts do not lend themselves equally well to the contrary views. No; things that are true and things that are better are, by their nature, practically always easier to prove and easier to believe in.
Though  we don't offer a course titled Rhetoric  we do try to teach mastery of the art  by example and through the many contemporary efforts on which we draw in classes .  In my first year of law school my civil procedure teacher exemplified the virtues Aristotle extolled which she has followed throughout her long career.  In today's Times in an op-ed titled Justice Ginsburg's Cautious Radicalism Irin Carmon (co-author of Notorious RBG) presents then Professor, now Justice Ruth Bader Ginsburg's approach:
Her vision for the world is transformative, but instead of broad sweeps, she has urged slow, incremental steps to that change. Rather than capitulation, this is about playing a long game. These principles sustained her through decades of experiencing discrimination, and formed her legal strategy. “She insisted that we attempt to develop the law one step at a time,” a fellow A.C.L.U. lawyer, Kathleen Peratis, testified at Justice Ginsburg’s confirmation hearings in 1993. “ ‘Present the court with the next logical step,’ she urged us, and then the next and then the next. ‘Don’t ask them to go too far too fast, or you’ll lose what you might have won.’ She often said, ‘It’s not time for that case.’ We usually followed her advice, and when we didn’t, we invariably lost.”
Perhaps the most commented upon contemporary contrast to Ginsburg has been the rhetoric of her fellow Associate Justice Antonin Scalia.  Southwestern Law School Professor Michael Frost focused on his dissent from Ginsburg's majority opinion in the VMI case which struck the male only admissions policy of the state military college.  Frost, in his 2002 article Justice Scalia's Greco Roman Rhetoric   warned that Scalia ignored Aristotle's principles and undercut his own effectiveness.  Some have even warned that he reserves his harshest rhetoric for female adversaries.   

 The lawyer who recognizes and presents the nuance of argument is helpful to and appreciated by judges, as the late Third Circuit Judge Ruggero Aldisert wrote, accepting the Golden Pen Award of the Legal Writing Institute:
[L]egal writing is not designed to describe something like a journalist, to report what is true or false. It is not what Austin describes as “to constate” or to give information on an action that has taken place. Instead it is designed to convince, to deter, or to persuade. And all this means is to perform, and thus produce future action.When you are a judge, or are a law clerk writing for a judge,every document you write is a “performative utterance.” It is writing that concludes with a definite performance, such as “Motion denied” or “Judgment for plaintiff” or “Affirmed” or “Reversed.” Thus, when I say that as a judge I am indebted to you, it is because to the extent you produce lawyers with better writing skills, the better we judges can properly understand the nuances of arguments presented. And the higher degree of understanding we acquire, the higher a quality of fairness and justice ensues."
In sum I would say - Preach not to the choir but to those beyond the walls.  - gwc

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