This is a very good article on rhetoric that I love to share.
“Verbal fencing and forensic examination from legal ‘superstars’ at the Supreme Court”
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Author: Sam Leith
This week’s Supreme Court hearings on whether parliamentary assent is needed to trigger Article 50 were a very special form of theatre.
Here was, you might think on superficial inspection, a collection of dark-robed gentlemen (and, yes, the occasional lady), shifting on green leather chairs, muttering about paragraphs and subclauses, and shuffling great dry bundles of paper amid the occasional sepulchral puff of dust.
But under that was the real action: this was rhetorical fencing of a very high order indeed — and of a special type. The law, unlike political rhetoric, deals entirely in logos: that is, it is not at least ostensibly concerned in any way with the ethos/pathos questions of feelings, tribal solidarity or personal charisma. It is concerned with the forensic examination of the evidence of written precedents, clauses and subclauses in acts and treaties.
As Aristotle argued, logos is related to logic, but it is not the same thing. Pure mathematical logic proceeds by the iron chains of deduction known as syllogisms. Best guesses, reasonable inferences and plausible interpretations do not enter into it.
They do in our messier, sublunary world when it comes to the law. How do you reconcile apparently incompatible or ambiguous precedents? Above all, what interpretation do you place on silences and omissions — areas of uncharted activity for which the law does not expressly provide?
The legal questions surrounding Article 50 and the referendum result are not perfectly clear cut — otherwise we would not be in court in the first place.
Rhetorical logos deals with enthymemes, which is the name Aristotle gave to arguments based on probability rather than on certainty; or syllogisms where not all the information is there.
The enthymeme is sometimes described as a syllogism with a “hidden premise” or an unstated assumption. And it was the hidden premises that were frequently at issue yesterday in court.
Absent, for example, an express statement in the 1972 Act on whether repeal could be achieved by prerogative power, what is the most plausible construction that can be made about the intentions of the parliament that passed that act?
Lord Pannick is described by my colleague David Allen Green as one of the “superstars” of the bar. Nothing dusty about that. And in making the case this week that Article 50 cannot be triggered by prerogative power alone, he debated laws from the past few decades using rhetorical strategies that would have been recognisable to the ancients.
In terms of his self-projection — his ethos appeal — he sought to appear calm and in command. It would be an insult to the Supreme Court’s judges to imagine that this would affect how they judged his arguments, but it might reassure them that he is across his material and merits their attention.
He smiled a lot. He was elaborately courteous. He murmured formulas appropriate to the venue — “with the greatest respect” and “I won’t take time — unless it will assist”.
His approach to the material was to offer the maximum possible clarity. He sought to carve out the bones of a clear and decisive argument with his pruning shears, and to do so to his advantage.
That meant framing, framing, and again framing. You could lose count of the number of times he said: “The point I make is…”, or “The question is this…”, or “That’s the point.”
His primary and most effective framing gesture was the numbered list, or what the classical rhetoricians called enumeratio: he said right at the outset that he wanted to offer seven specific reasons why his opponent, James Eadie QC, was wrong. That sharpens the attention, doesn’t it?
And once he established them in his exordium (his introduction) he was not to be sidetracked. Out they came, one after the other, chapter and verse.
He had anticipated objections and was ready to answer them. When Lady Hale queried what appeared to be a contradiction in his interpretation of the law governing treaties, he shot back: “That’s different.”
This is the lamest of ripostes, usually. Unless you can follow it up, as he did, by respectfully one-upping your antagonist and distinguishing between the treaty in hand and an “ancillary treaty” and doing so, quite fluently, with reference to the source legislation in which Treaty with a capital T and treaty with a small t were differentiated. It was different.
And once he had framed the argument to his satisfaction, he proceeded to make his case on the question of plausibility. His job was to make his own interpretation of the gaps in the law seem the one to which common sense pointed.
The opposite interpretation, he said, “made no sense at all” — and offered variations on that phrase repeatedly. One of his cruxes was that if parliament’s authority is expressly needed to deal with a small matter — an amendment — it follows that its authority is implicitly needed to deal with a bigger one — a whole treaty or act. (This, be it noted, is a riff on a two-millennium-old specimen argument found in Aristotle’s Rhetoric: “The smaller quantity is surpassed as being contained in the larger.”)
He delivered that case with a lovely little flourish — one whose burden, as being a proverb, was to give his case the force of age-old or commonsense wisdom — “Parliament should not be assumed to have strained at a gnat and swallowed a camel.”
All this may be old wine in new bottles, but it goes down very smoothly indeed.
Sam Leith is the author of ‘You Talkin’ To Me: Rhetoric From Aristotle to Obama’
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