Essay About Such Things And Decision Of The Judges

Rhetoric
Essay title: Rhetoric
BOOK I
Part 1
Rhetoric is the counterpart of Dialectic. Both alike are concerned
with such things as come, more or less, within the general ken of
all men and belong to no definite science. Accordingly all men make
use, more or less, of both; for to a certain extent all men attempt
to discuss statements and to maintain them, to defend themselves and
to attack others. Ordinary people do this either at random or through
practice and from acquired habit. Both ways being possible, the subject
can plainly be handled systematically, for it is possible to inquire
the reason why some speakers succeed through practice and others spontaneously;
and every one will at once agree that such an inquiry is the function
of an art.
Now, the framers of the current treatises on rhetoric have constructed
but a small portion of that art. The modes of persuasion are the only
true constituents of the art: everything else is merely accessory.
These writers, however, say nothing about enthymemes, which are the
substance of rhetorical persuasion, but deal mainly with non-essentials.
The arousing of prejudice, pity, anger, and similar emotions has nothing
to do with the essential facts, but is merely a personal appeal to
the man who is judging the case. Consequently if the rules for trials
which are now laid down some states-especially in well-governed states-were
applied everywhere, such people would have nothing to say. All men,
no doubt, think that the laws should prescribe such rules, but some,
as in the court of Areopagus, give practical effect to their thoughts
and forbid talk about non-essentials. This is sound law and custom.
It is not right to pervert the judge by moving him to anger or envy
or pity-one might as well warp a carpenters rule before using it.
Again, a litigant has clearly nothing to do but to show that the alleged
fact is so or is not so, that it has or has not happened. As to whether
a thing is important or unimportant, just or unjust, the judge must
surely refuse to take his instructions from the litigants: he must
decide for himself all such points as the law-giver has not already
defined for him.
Now, it is of great moment that well-drawn laws should themselves
define all the points they possibly can and leave as few as may be
to the decision of the judges; and this for several reasons. First,
to find one man, or a few men, who are sensible persons and capable
of legislating and administering justice is easier than to find a
large number. Next, laws are made after long consideration, whereas
decisions in the courts are given at short notice, which makes it
hard for those who try the case to satisfy the claims of justice and
expediency. The weightiest reason of all is that the decision of the
lawgiver is not particular but prospective and general, whereas members
of the assembly and the jury find it their duty to decide on definite
cases brought before them. They will often have allowed themselves
to be so much influenced by feelings of friendship or hatred or self-interest
that they lose any clear vision of the truth and have their judgement
obscured by considerations of personal pleasure or