In Book I of Aristotle's On Rhetoric, he addresses the problems of trials with jurymen. A principle problem is that of using pathos and ethos in order to appeal to a jury so that they may be swayed by their emotional reactions to the speaker, and not by the facts at hand.
I found this section interesting because in present-day Western society it seems to me that we create laws in such a way that they have room for interpretation. We constantly hear of loopholes and know that laws (like tax laws, for example) are written in such a way that the common person cannot understand them without the guidance of a judge, or someone else well-versed in judicial language. It seems that we want our laws to more broad than specific, so that judges and jurymen can see how an individual case should have it applied.
This differs from Aristotle's approach, because he recognizes that, "legislation results from consideration over much time, while judgments are made at the moment [of a trial or debate], so it is difficult for the judges to determine justice and benefits fairly," and furthermore that, "a lawmaker is not about a particular case but about what lies in the future and in general, while the assemblyman and the juryman are actually judging present and specific cases," (Aristotle 31). While it is true that judges should determine whether or not an event has actually occurred, As Aristotle sees it, judges and jurymen should have "authority to determine as little [else] as possible," (31).
I think this differing of attitudes is worth interrogating, because while in many ways our current justice system is set up to be impartial, it is also still laughably unjust to some. There are reasons why attorneys study what judgments different types of people tend to make; they know that you can assemble juries in such a way so as to get a more favorable outcome for your client (whether that be a person or The State).
Why have our attitudes towards Western court systems changed since the writing of On Rhetoric? Is it possible that his beliefs on this particular subject did not catch on with others?
Katharine, I agree, the difference between Aristotle's approach to law and the more interpretable laws we have today is worth considering, especially, like you said, because nowadays defense attorneys and prosecutors know jury selection can sway a verdict.
ReplyDeleteWhat stood out to me when I read that section of Aristotle's writing was that it should only be left to a judge to determine whether or not an event happened, because adding anything more means the judge is judging his own life (which I took to mean as his or her being personally involved, subjective, emotional to some extent, and therefore no longer impartial).
I think writing laws to be this specific would save billions of dollars, especially if crafted in tandem with adjustments to the appeals process. Fewer people, it seems, would be incarcerated, because the burden of proof would be heavier. What comes to mind are the motorists who are contesting photographic traffic tickets. I read of one man who is wearing a monkey mask on a fairly regular basis, and who was summoned to court regarding a ticket. I think I read that he said he'd be happy to pay the ticket if they could prove it was he behind the wheel of his car. Similarly, our legal system would be much more efficient if all a judge had to decide was whether an alleged perpetrator was actually at the scene of a crime, or actually handed drugs over to an undercover agent.
On the other hand, perhaps making "did happen/did not happen" the basis of the work of a judge might open doors to more security cameras and more arguments about invasion of privacy.