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Rhetoric, Perception and Ethical Norms

Rhetoric, Perception and Ethical Norms (Program)

Iris van Domselaar, Executive Director Amsterdam Centre for the Legal Professions (Netherlands) (Moderator); Paolo Moro, University of Padova (Italy); Massimo La Torre, University of Catanzaro (Italy); and Benjamin C. Zipursky, Fordham University School of Law (US)

Rhetoric, Perception and Ethical Norms

Iris van Domselaar: The Perceptive Judge

Up until today the way judges perceive has received little attention in legal discourse. Adjudication is most often conceptualized as a practice in which judges apply rules and principles. The focus has predominantly been on the actual decisions judges take, the underlying justificatory rules and principles and the meaning of the decision for the legal system. The selection, determination and valuation of the facts of the case are tacitly considered unproblematic.

This paper by contrast puts judicial perception at the centre of adjudication. It offers a philosophical account of judicial perception that understands it as a special ethical - and thus character dependent - skill that a judge needs in order to adequately cope with the case he is confronted with. It proceeds as follows. First, I briefly touch upon the question why judicial perception has received little attention in legal discourse and how this is, at least on the conceptual level, related to dominant philosophical premises in practical philosophy. Next, the central features of judicial perception will be discussed and subsequently the question will be addressed how we can account for substantive and legal bearing of judicial perception. We shall see that in this regard ‘thick (legal) concepts’ play a vital role. In addition, I will briefly discuss the role that explicit rules and principles have in an account of adjudication that gives a prominent place to judicial perception. Throughout the text McEwan’s novel The Children Act is used as illustrative source.

Paolo Moro: Rhetoric and Fair Play: At the Origins of Legal Ethics

According to every own code of legal ethics, lawyers’ first duty is to act upon diligence and fairness in relations with judge, clients and colleagues, and ethical prescriptions appear to be all ascribable to these guidelines.

Greek philosophy hands down that rhetoric is the best method to combat the “battle of words” (logomachìa) and to argue faithfully in a judicial controversy: Aristotle remembers, indeed, that it’s necessarily show themselves in a certain appearance, “because rhetoric exists in order to a judgment”.

In Latin literature, Quintilianus says that rhetor is vir bonus dicendi peritus, suggesting that lawyer is surely a man good at eloquence (dicendi peritus), but above all he’s a man of honor (bonus).

Assuming that ‘speaking well’ is ‘behaving well’, the morality of legal rhetoric concerns the aim of fair trial, that imposes at parts and judge a cooperation in the discussion of controversy and compels all the participants to find in the dialogue a common point of view in the dispute by persuasive reasoning and good arguments.

Therefore, the following paper will explain that the real principle of legal ethics is “fair play”, a performative rule based essentially on sportsmanship and competitive spirit.

In fact, in Ancient Greece, that was the homeland of rhetoric, there was a close analogy between sporting competition and adversary trial: agonistic contest and legal proceeding were called by the same name of agòn by the ancient Greeks, first guardians of the Olympic Games, disputed under divine protection of Zeus, judge of all conflicts.

The trial and the game belong to a common universe in which the opposition is an indispensable instrument of the way to achieve victory, through the same competitive aspects: the court and the parties as a referee and players of a dispute; the subpoena as a challenge; the discussion among the contenders as a duel; the appeal as revenge; the decision as a final result of the race.

In the contemporary era, fair play and spirit of sportsmanship are reported in the oath pronounced by representatives of athletes, judges and coaches at the modern Olympic games; likewise, dignity or integrity are often mentioned in the attorney oath of new lawyers.

Nowadays, employing fair play with clients, colleagues and judge, rhetoric can be used ethically by lawyers such as respectful athletes: a flawless argument will fail if the audience does not trust speaker or writer and it helps avoid extreme position or loser reasoning.

Massimo La Torre: Lawyers' Ethics and Legal Positivism

In my paper I intend to discuss the relationship between legal positivism, the predominant legal theory among lawyers and law schools, and lawyers' ethics. My contention is that legal positivism is hostile to lawyers' ethics and tends to expel it from the precinct of law. This is done either by silence, by not admitting advocates among the relevant actors in a picture of the concept of law, or by making of positive law an ethics in itself. If we consider for instance the two most influential doctrines of legal positivism in the last decades, the one proposed by Hans Kelsen and the one presented by Herber Hart, we should conclude that a system of law could be explained without taking into account what practicing lawyers, I mean attorneys, barristers or socilitors, actually do. Only legislators or judges are considered as relevant, and it is so because both legislators and judges DECIDE and PRESCRIBE, while a barrister does not decide nor prescribe anything in the form of an enforceable positive rule. Now, legal positivism sees law as a social fact, that is basically as a matter or outcome of decisions and prescriptions; is indeed often incline to decisionism. But advocates helas are not decisionist figures. Nor do they issue commands or prescriptions. Therefore, once adopted a prescriptivist view of law, they are not included in the discussion about what makes, defines, the concept and the practice of law. On the other side legal positivism, though strongly separating law and morality, makes of law an "exclusionary" reason for action, indeed a supreme reason for acting within a certain practice. In this way legal ethics is reinterpreted, under various forms and through different fundamental references (e.g. the rule of law principle or the appeal to democracy), as the ethics of abiding by the law. Legal ethics will thus be all that positive law allows lawyers to do and nothing more. In this way, however, the very question of a specific and independent lawyer' ethics is begged.

Benjamin C. Zipursky: Counselors, Litigators, and Judges: Three Perspectives in Legal Interpretation

Several Twentieth Century theories of truth in the pragmatist tradition are philosophically modest, in the sense that they do not conceive of some domain of reality that true statements must match.  Rather – like Holmes’ famous marketplace of ideas – the truth is simply what rises to the top in a vigorous competition of ideas.  Ronald Dworkin’s celebrated jurisprudential work Law’s Empire can be understood in this manner, when we think of appellate litigation and judicial discourse as a competition of ideas: the true or right answer in law is simply what we are aiming for when we are engaged in a good-faith effort to provide the most comprehensive and compelling interpretation of legal materials.   The central goal of this paper is to draw out the implications of the Dworkinian view when the legal interpreter is a lawyer who has duties to his or her client, and may be inclined to aim for the answer that is best for his or her client.

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