Rhetoric―the art of packaging one’s arguments so as to make them more attractive―has a bad name. It is associated with deceit at worst, and meaninglessness at best. It is seen as a distraction. Why should we care about the way arguments are packaged―surely what really matters is their substance? A student put something like this question to me last week when I gave a guest-lecture on constitutional interpretation at McGill, my alma mater, and exhorted students not describe legal principles on which they rely as “penumbras formed by emanations,” as Justice Douglas does with the right to privacy in Griswold v. Connecticut, 381 U.S. 479 at 484 (1965). Why does the inelegance of this formula matter? And even if it does, isn’t that something we should regret and push back against?
Now there are plenty of areas where rhetoric has no place―in pure sciences for example, or even, I think, in social sciences such as economics. In these disciplines, what matters is only that an argument be right. And―and this is a key point―in these disciplines there are generally accepted ways for telling which arguments are right, and which are not. But law is a different beast.
The reason why rhetoric is important in law has to do with what Jeremy Waldron describes, in his great paper on “The Concept and the Rule of Law,” as “the law’s argumentative character.” Law is essentially, by its very nature, a matter of debate and dispute. Even when we talk about what the law is, rather than what it ought to be, we frequently disagree. This is not to endorse the “critical” claim that law is always indeterminate, so that we never know what it is. We often do know, and we often agree about what we know. But there are also plenty of times when we think we know―and other people think they know the exact opposite. And there is no way to tell that a contested proposition of law is correct, even a judgment of a supreme court. As Justice Robert Jackson famously pointed out in Brown v. Allen, 344 US 443 at 540, “We are not final because we are infallible, but we are infallible only because we are final.”
The law’s being an “argumentative” practice is reflected in the elaborate institutions and procedures that we have for giving people a chance to state their views on what the law is. We let people state their views about what the law applicable to their case is, in writing or orally, and often (especially on appeal) both; we let them―and sometimes pay for them to―hire a professional who will present their views to the court. And we expect judges to respond to these views when giving reasons for their decisions. This is not just because being able to speak out makes people feel better. Perhaps it does, but there’s little good in speaking while knowing that whatever one says, the opinion of the listener will not change. The reason for our legal procedures is that we want to give parties to legal disputes a chance to persuade those who will resolve their differences. (Some time ago, I already wrote at some length about “The Forms and Limits of Persuasion” in legal disputes.)
Rhetoric is essential to law because it is an instrument of persuasion. If it is used properly―more on that shortly―it is, if anything, a sign of respect for the intended audience of one’s legal arguments (judges for a lawyer or a litigant; litigants, especially unsuccessful ones, and the public for judges; fellow-scholars and, hopefully, judges for academics). Using rhetoric is telling the people who read you that you take them seriously enough to try to persuade them; failing to use rhetoric is telling them that you either think them too prejudiced to change their minds or don’t believe that their opinion matters enough to try changing it.
But what of the concerns with rhetoric that is insincere? What of the fact that rhetoric is power over those swayed by it, and this power, like any other, tends to corrupt? Part of the answer to these concerns lies, again, in our procedural arrangements, which allow argument to be met with argument, and rhetoric with rhetoric. Parties to disputes can counter the claims of their opponents. Judges, in multi-member panels that typically decide appeals, have the possibility to dissent from the panel’s decision, and respond to its assertions. And of course academia, the press, and civil society (hey, even bloggers!) can also expose the fluff in judicial decisions.
Still, it is important to recall that with power comes responsibility. So while it is proper―and even necessary―to make one’s legal arguments as persuasive and as attractive as possible, there is no justification for lying or even trying to mislead. Professional norms are different for lawyers, judges, and academics, but none of them are justified, for example, in distorting the import of cases they cite. And academics and judges, in particular, should acknowledge the arguments contrary to theirs, even if they reject them.
But there are many ways to say the truth, or what a reasonable person can honestly believe to be the truth. The argumentative nature of the endeavour lawyers are engaged in requires them to choose that which will persuade. Rhetoric is an art, not a dirty trick.