Rhetoric in modern discussions

Discussion of the role of rhetoric in the Roman legal order was dominated, until, say, the 1960s, by the presupposition that rhetoric was wicked; it was �making the worse argument the better’; it was concerned with victory, not truth.

(i) Proof

Much of an advocate’s work, as Megarry says,²⁶ is taken up with the facts of situations, the evidence for and against. Now a frequent claim against Roman procedural law is that it took a long time to develop a â€?Theory of Proof, that is a system for the admission or exclusion of what was relevant or irrelevant, proper or improper for the consideration of a iudex. Even the most recent authors, moreover, seem to take it for granted that such a set of - in effect - automatic exclusions is essential for truth as to facts to emerge. The point was made in the Introduction, above, that we should be cautious in judgment because our own tightly exclusive system is in turn open to criticism; it is now needful to analyse the problem of â€?Proof somewhat more closely.

In the Roman courts the advocates engaged in a struggle with no holds barred, and many of the considerations they adduced a modern court would exclude, by automatic rules, as irrelevant: numerous recent studies make one point or another in relation to that fact.²⁷ Three features in particular are emphasised. First

²⁵ 26 Bremond, 1: â€?The very term has lost its unflattering connotations... We are told that rhetoric is not an ornament of discourse but an essential dimension of any significatory act’; 46a Cohen; 227a Rethinking. Cf., however, 47 Cole (Introduction, n.

²⁶ See p. 16, above.

²⁷ 23,5 Scalais gives a useful account of the conditions under which advocacy took

Place, though it is nearly all about criminal proceedings. See also 224 Pugliese; 194 Neumeister; 295 Wieacker, especially section 3; 182 Mette. - is the publicity of ancient litigation: the open forum or basilica, the crowd of listeners attracted by that â€?Schaulust des antiken Südländers’ that Wieacker refers to in what sounds a rather disapproving tone,^[34] the need for powerful lungs and theatrical gestures. And although that is most obvious in the great criminal trials, civil litigation had its causes celebres, too.^[35] Second is the fact that all judges - whether unus iudex or recuperatores or the centumuiri or the juries of the criminal courts or the magistrates or their delegates in the cognitio extraordinaria, were laymen, and hence the advocate’s task was not â€?Überzeugung’ but â€?Überredung’, not conviction but persuasion - talking into a frame of mind.^[36] And third is the involvement of advocacy in politics, again most obvious in the criminal sphere but not exclusive to it: the â€?old boy network’ resulting in the judges being influenced by politics, the proceedings often brought in the furtherance of political battles, the advocates with political careers to make which will depend, partly at least, on their success or failure in particular prosecutions or defences.^[37] It is tempting to be smug and say â€?Yes, we quite understand the reasons why the ancients had such an inadequate attitude to legal proof, and we recognise that advocacy was as it was in response to those circumstances; how fortunate we are that our lawcourts are hushed and solemn, that judges are professionals, and that the law is above the details of politics, so that we have been able to develop a proper theory of proof’ Yet two of the studies just referred to, by leading Roman lawyers, in their analyses of the setting of Roman advocacy, endorse the view that the ancient â€?free-for-all’ must be allowed some merits.

On the â€?Theory of Proof a surprising amount has been written recently. In the Proceedings of the Eleventh International Congress of Philosophy, Brussels 1953, a section of Volume V was labelled â€?Theorie de la Preuve’;³⁴ the Recueils Jean Bodin, Tome XVI, â€?La Preuve (antiquite)’ has an article by Feenstra³⁵ summing up papers given to the Societe Jean Bodin in 1964, of which the most important for present purposes are by Pugliese and by Giuliani;³⁶ J.P. Levy wrote two studies that we must consider;³⁷ and Giuliani published another paper in the Juridical Review for 1962.³⁸

Let us look first at what Levy says about Cicero.³⁹ The orator in some of his speeches had to plead to establish facts; but he said little about fact-finding in the theoretical works. Argumenta, for Cicero, are not what we should call proofs but presumptions; and all he offers are what Bekker called â€?Klugheitsregeln’ (â€?tips’) for their employment, not juristic principles determining which argumenta are to count as probative and which not. What Cicero does attach great importance to is persons - their status and so on - and that is how they are judged as witnesses.⁴⁰ According to Levy Cicero belongs to an age â€?encore peu touche par le droit’; proof has passed from the primitive stage of ordeal but has not yet reached the true juristic stage of rules: it hovers in the limbo of personal auctoritas.⁴¹ In his other paper Levy discusses what rhetorical theory had to offer about proof.⁴² He repeats that it is all really about persuasion, not proof, and its classifications are not proper jurisprudential ones.

³⁴ Dallmann’s paper in these Proceedings is referred to on p. 20, below; see n. 48 below.

³⁵ 80 Feenstra.

³⁶ 223 Pugliese: 99 Giuliani (published separately).

³⁷ 162 and 163 Levy.

³⁸ 100 Giuliani.

³⁹ 163 Levy. Not that Levy likes Cicero’s speeches!

95 Gamsey, 211-12; and see Quintilian’s section called de testibus, Inst. V 7.

A �humanist’ attitude to proof that only reappeared in 1790 �a 1’exemple de 1 Angleterre certes, mais aussi en une epoque oil Ciceron etait tres lu’.

⁴³ 162 Levy.

. â€?Tout se passe done pour eux comme si le Droit positif n’existait pas.’ That capital â€?D’ ^ls a tell-tale! as they liked.⁴⁴ We then have the usual conclusion, that things were better in the late Empire, when the iudex 'N&s a bureaucrat and there was a legislative rule to settle everything. But were things better in those circumstances? Why in the world should one expect them to have been better? LĂ©vy does not explain why: he just assumes it.

Pugliese likewise states⁴⁵ that in the Ciceronian age (which he, as is customary, regards as the heyday of rhetoric in the courts) proof was not in order to convince but to persuade: it was â€?global’ - to produce a general climate of sentiment in favour of one’s client - and so a mĂ©lange of argument and testimony, fact and law. That â€?globality’ of the ancient advocate’s conception of his task is a very well-taken point,⁴⁶ but there is nothing necessarily reprehensible about the â€?globality’ except to those who are wedded to a tight concept of evidence and an â€?autonomous legal science’, as, unfortunately, is Pugliese.

Dallmann, in a paper on the â€?Multiplicity of Proof Procedures’,⁴⁸ points out that in the practical business of bringing people to your way of thinking much more than logic is involved: persuasion is more than proof.⁴⁹ And Giuliani’s theme

⁴⁴ See also 80 Feenstra: the judges were upper-class, and allowed themselves to be convinced by the argumenta of the rhetors instead of by â€?preuve au sens moderne’.

⁴⁵ 223 Pugliese.

⁴⁶ See, already, Quint. Inst. VI2, 2-7.

⁴⁷ 223 Pugliese, 393.

⁴⁸ 57 Dallmann, 82ff.

⁴⁹ Quintilian at Inst. IV 3, 11 on â€?knowing your judge’, and his Preface to Book V, have a very modern sound. is similar:⁵⁰ he puts it in terms of establishing â€?moral certainty’ as opposed to â€?demonstrative certainty’, claiming that the theory of â€?probable truth’ in the law as against the â€?demonstrative truth’ of mathematics is deeply embedded in English law through the influence of rhetoric. Proof is argumentum, â€?ratio quae rei dubiae faciat fidem’, â€?reasoning that induces assent in a doubtful matter’.⁵¹ Giuliani says that the rhetorical doctrines of proof consist of three elements; of two of them what he says is right and important - the formation of a clear issue or â€?centre of argument’ and, secondly, an ethically based theory of the probable.

(ii) Philosophy: �La nouvelle Rhetorique’ and other developments

Toulmin remarks that â€?Logic (we may say) is generalised jurisprudence’. He would not, however, have been very pleased with the ancient jurisprudents, for the questions he char­acterises as â€?central for jurisprudence’ were ones to which it was the advocates, not the jurisprudents, who attended: â€?Statements of claim, evidence of identification, testimony about events in dispute, interpretations of a statute or discussions of its validity, claims to exemption... pleas in extenuation, verdicts, sentences....’⁵²

It is, however, Perelman whose name is especially associated with a whole trend in philosophy in the 1950s and onwards, with a new name, La nouvelle Rhetorique.⁵³ Philosophy since

⁵⁰ 190 Giuliani, 216ff.

³¹ Cic. Top. 8.

>>² 267 Toulmin, 7 and 96, respectively.

⁰³ Systematised especially in 215 Perelman/Olbrechts-Tyteca; but see the other items against his name in the Bibliography.

Descartes, he claims, has refused to consider anything but the provable, and has tied itself into knots as a result. That is a wrong start: we must go back to Aristotle and look, in the human sciences, for a logic of the probable. Instead of asking for evidence we must ask for argument;^[40] and argument means people. The ancients knew that the fact that there are people to persuade makes conviction not a matter of logic merely, but of psychology and sociology as well.^[41]

The contentions of La nouvelle Rhetorique have been developed in directions that come a bit nearer home from our point of view, namely in the consideration of the relationship between rhetoric and specifically legal argument. In 1964 there appeared a set of essays under the title �Rational Decision’,^[42] of which that by Dietze, �The Limited Rationality of Law’, suggests the tone of the whole, but the most important of which are by Freund and by Ladd. What runs through them is the theme that legal reasoning cannot limit itself to arguments from within the law. Freund quotes Justice Cardozo as listing four elements in judicial reasoning: logic, precedent, history and social utility; Schwartz insists that law must take account of the moral context; Ladd, proposing a model for judicial decisions, says that such a decision is �a kind of act proceeding from practical reason, that is a rational action, so that what the judge says is neither true nor false’,^[43] and the advocate is seeking to persuade the judge to a proper, correct action in a given set of circumstances.^[44]

Certain sections of J. Stone’s Legal Systems and Lawyers’ Reasonings are related to the same set of ideas.^[45] In the section called �Choice within the Leeways’ Stone urges that in legal argument we must allow entry to �critical evaluation’ (that is, extra-legal notions of what is right and fair) and to the facts of social, economic and political life - so much for the �autonomous science of jurisprudence’! And the role of rhetoric in modern decision-making he describes as providing not premises for deductive or inductive argument but a �seat of argument’, a topos, from which reasoning may begin.^[46]

Villey wrote an introduction to the new attitudes to legal logic in a set of papers on La Logique du Droit in 1966.^[47] The reaction against strict deduction as a model for legal logic, he said, had gone too far, leading to demands for irrationality on the part of judges - for �flair’, �hunch’, and so on. But, insists Villey, there are rules of legal reasoning, only they are the rules of the old dialectic, �a logic built out of the experience of the art of the law’, �a logic based not on monologue but on the battle of opinions’.

And that takes us to the heart of controversy, because of the influence in the 1950s of a quite small book, Viehweg’s Topik und Jurisprudenz. Viehweg’s thesis was related to La nouvelle Rhetorique, because it was designed to show that Topik (by which he meant the kind of reasoning for which recipes are given in Aristotle’s and Cicero’s Topicaf^[48] is the basis of jurisprudential reasoning. It is, he argued, a mode of thinking about legal problems that is derived from rhetoric, not deductive-systematic but a logic of the probable leading to the �dialectical syllogism’: the topoi are the modes of distinction, and so the modes of proof. Viehweg claimed that this style of thinking could be found in the ius ciuile, the mos Italicus and modern Civil Law, and that attempts to purge jurisprudence of it in favour of �tighter’ logics were unsuccessful.^[49] He gave as a specimen in Roman jurisprudence D.41.3.33, comparing the �problem-to-problem’ treatment with how a Pandect book might have treated the same question.^{[50] [51] He also quoted Cicero’s assertion in the Brutus^5 that only Servius Sulpicius had the �artem iuris ciuilis’ which �doceret rem uniuersam tribuere in partes’ (�taught to divide a totality into parts’); but that particular ars is, a moment later, characterised by Cicero as dialecticam, and it is not clear whether Viehweg thought that that �dialectic’ was the same as the rules of rhetoric: there were persons in antiquity who would have furiously denied that it was. It looks, anyhow,[52] as if he accepted in principle the claim of another immensely influential �small book’ - the paper, actually, of Stroux[53] - that the rhetorical tradition, with its rules about stasis!status, was also the mode of thinking of the jurists; yet he also asserted (truly enough) that Topik was a repertoire of inuentio, a way of making sure you have found the relevant and right arguments, and all of them, for your case: ars inueniendi, as opposed to logic, which is ars iudicandi. That is, par excellence, the mode of thinking of the advocates:[54] is it, after all, really what the judge does, or what the jurist does?}

Viehweg was subjected to fierce criticism by Horak,^[55] who complained about the influence of�little books’ and asserted that the new way of looking at jurisprudence as argumentation was only a fashion, already on the wane (that was in 1969). Horak’s study was the modes of discussion of the Republican jurists, that being the age when the passion for system-building derived from Greek dialectic was at its height. He did not accept that that dialectic was the same as the stafus-rules of rhetoric that the advocates worked by. He argued that, on the contrary, the jurists were groping their way towards valid general principles, i.e. towards an axiomatic-deductive model for jurisprudence. Horak believed, in fact, that there was a quite different sort of debate going on all the time, simultaneously with the histrionic battles of the advocates: a sober disputatio fori amongst the jurists, seeking the objective, true law. Cicero, said Horak, tried to �hot up’ the old rhetorical theories of argumentation to amuse Trebatius; but neither Trebatius nor any of his jurisprudential friends took the slightest notice.

Horak in his turn is open to criticism, over and above his evident commitment to an �autonomous science of law’. The nature of his theme obliges him to combat the usual view that the jurists seldom gave reasons for their decisions and relied mostly on the auctoritas of their predecessors.^[56] He finds that a

third of the texts he uses are supported by reasons (which is hardly a high proportion); of course the jurists were laconic, he _says, compared to the endless argumentativeness of the rhetoricians, but they must have given reasons, otherwise they would not have been able to stand up against the rhetoricians! As for the â€?real’ debate, the disputatio fori, that takes a good deal ofâ€?alles spricht dafür’ to make much of a case for, and even then Horak has to have it both ways by characterising it as â€?sowohl rational als auch autoritär’, â€?both rational and authority-bound’. However, all adjustments made, Horak still makes a strong case that the modes of argument of the jurists were not the same as those of the advocates, nor derived from the same tradition of training. '

That impression is reinforced in another essay by Villey,^[57] which shall be the last item in our dossier. He analyses Roman jurisprudential logic, proposing three models for consideration. Was it scientific reasoning? No: it was argumentation, based, as he said before, on controversia, the battle of opinions. Was it rhetoric? No: rhetoric was, indeed, a true theory of arriving at a judicial decision through the clash of arguments in court, but only in the instant case. The jurists did want general rules, and precisely because they did not have to participate, either as advocates or as judges, in the decision-making process for the instant case they were able to concentrate on formulating rules of law. Was the model, then, dialectic? Well, concludes Villey, not quite that, either. Dialectic is pure philosophy, and the jurists were not pure philosophers. They may not have had to decide instant cases, but they had to give responsa for particular and not merely for general situations. The juristical model, he concludes, was somewhere on the spectrum between rhetoric and dialectic; �le droit a sa topique propre.’

La nouvelle Rhetorique did not, it seems, have a huge impact on philosophy, and it has receded from prominence, to be succeeded in fashion by another newly invented subject, influenced, maybe, by La nouvelle Rhetorique but not an offshoot of it: â€?Critical Legal Studies’.^[58] The subject is â€?deconstructionist’ m character,^[59] and seems to have emerged as a movement within literary studies. Its general import is to challenge any assertion, from any quarter, that there are legal truths: there is only debate. And its own assertion is, for example, that there are crippling contradictions and paradoxes in all â€?liberal legal thought’, and so in all the currently prevailing systems of jurisprudence, of Hart, Rawls, and so on. It seems bent more on destruction than deconstruction; but one author who counts as part of the movement merits attention in relation to our theme, J.B. White.⁷⁴ The reason will be apparent from a quotation:⁷⁵ â€?My general idea is that while there are of course many useful and familiar ways to talk about law - say as a system of rules or a structure of institutions - it is most usefully and completely seen as a branch of rhetoric. But “rhetoric” also needs definition, and I think it should be seen not as a failed science nor as an ignoble art of persuasion (as it often is) but as the central art by which culture and community are established, maintained, and transformed.’ White calls the rhetoric that is law â€?constitutive rhetoric’, because it is always bringing something into being, (a) using language as a repertoire of resources of persuasion, (b) using it to create the framework in which the instant case may appear, and (c) using it to create an ethical community as between all those involved. â€?The law is an art of persuasion that creates the objects of its persuasion, for it constitutes both the community and the culture it commends’; it is â€?a culture of argument, perpetually remade by its participants’. The importance of those considerations for understanding the role of advocacy in the legal order is evident, and reinforced by Hariman’s contribution to the set of studies called Popular Trials (1990).⁷⁶ In those causes celebres, as Hariman shows, just as (we may add) in the great popular trials before the Roman quaestiones, what is happening is the creation by the advocates, the participants and the judges of a world of moral discourse.

3.