Gorgias and Good Rhetors: A Response to Thomas Schacht 

In these pages, Thomas Schacht explores some arguments from Plato’s Gorgias that, if sound, tend to show that it is immoral to practice law in the United States nowadays. The basic idea is that contemporary lawyers are like ancient rhetors, using dishonest speech to persuade the masses. Since honest arguments systematically lose to dishonest (but crowd-pleasing) ones, a successful lawyer must be a bad person. “We must either sweeten our speech with lies or lose our arguments. To be a good lawyer, in this view, is to be fundamentally immoral.” 

Now, Mr. Schacht is a law student, and I am a law professor. He is paying money to learn to practice law, and I’m taking money to teach people like him how to do so. For both our sakes, these arguments from Plato had better fail. The fact that Mr. Schacht has taken to the pages of Public Discourse, making arguments on an important question to a wide audience—arguments that, I’m sure, he sincerely takes to be sound—suggests that he believes that honest arguments can still prevail. Happily, I’m pretty sure he’s right about this. 

Indeed, in my view, much goes wrong in applying Plato’s arguments about ancient rhetors to contemporary lawyers. To begin with, ancient rhetors addressed large, popular audiences, and so they are more akin to contemporary politicians than contemporary lawyers. Many (probably too many) of our politicians are also lawyers, but there is no requirement that legislative or executive branch officials be lawyers, and no one would mistake speaking on the floor of a legislature for practicing law. This is even more true about addressing the public on talk shows or social media or in campaign advertisements, which is where politicians do their most important talking. I will come back to this kind of political rhetoric later; for now, I want to stick to the actual practice of law. 

Contemporary lawyers argue in three main settings—to juries in trials, to judges on appeals, and against other lawyers when negotiating business transactions. In the popular imagination, though probably not in reality (very few cases actually go to a jury trial), the first context is the most important, and so I will start there. 

In fourth-century-BC Athens, juries had hundreds of members, but in our system, of course, trial juries typically comprise only twelve individuals. In Athens, jurors were drawn indiscriminately from the body of citizens; we have strict rules for excluding from juries individuals likely to be biased against one side of the other. Crucially, we also have elaborate rules of evidence that limit what the jurors may hear. In the federal system, Rule 401 permits the introduction only of evidence that is relevant to questions the jury must decide. Rule 403 prevents the introduction of even relevant evidence if its probative value is substantially outweighed by the danger that it will create unfair prejudice, such as evidence of little probative value that tends to work on the emotions of jurors. The same rule excludes evidence that would confuse the issues or be misleading, that would delay the trial unduly or waste time, or that would be merely cumulative of other evidence already presented. 

In our system, these rules of evidence, as well as other procedural rules, are enforced by an impartial judge; there was no equivalent in ancient Athens. Our judges instruct jurors in the law before they begin deliberating; ancient Athens assumed jurors knew the law and required no instruction from experts. Our juries must return unanimous verdicts; a simple majority sufficed at Athens. We have an elaborate system of appellate review designed to catch and correct the worst errors of lower courts, including jury verdicts that are unreasonable based on the evidence presented; again, there was no equivalent in ancient Athens. The list of procedural safeguards we have that the ancients lacked is long indeed, and one main purpose of all these devices is to guard against deceptive rhetoric from lawyers. Indeed, using such rhetoric is itself prohibited. Rule 3.1 of the Model Rules of Professional Responsibility provides that a lawyer “shall not … assert or controvert an issue … unless there is a basis in law and fact for doing so that is not frivolous.”  

In a way, this is a tribute to Plato: he had a point about large audiences being easily swayed by bad arguments, but he didn’t foresee all the procedural devices we use today as a matter of course to mitigate this problem. Moreover, limiting the scope for bad arguments expands the scope for good ones. If deceptive or specious rhetoric is systematically excluded, lawyers still have to persuade jurors somehow, and when you eliminate bad arguments, all you have left are good ones, assuming you can find any. I am not sure how far along Mr. Schacht is with his legal studies at Notre Dame, but I am certain that none of his professors there (or, indeed, none of the law professors in any law school) teach their students to use deceptive or specious rhetoric to win cases. Besides being unethical as noted above, making such arguments is generally a formula for losing. The rational strategy—the one best calculated to win—is to make the best available argument, and the difference between good lawyers and great lawyers is that the latter often find surprisingly good arguments that the former miss. Given the nature of the system, the best way to win is to actually be right. 

This is not to say our courts always get the right answers. Manifestly, they don’t, and sometimes bad rhetoric from lawyers plays a role in this. O. J. Simpson, who obviously butchered his wife and her friend, was acquitted by a jury and walked free, probably because jurors believed some arguments about racism that, even if true, were almost certainly irrelevant and prejudicial (and so should have been excluded by the judge under applicable rules of evidence). Similarly, plaintiffs’ lawyers often sue large corporations, making products liability or other tort claims that tug at the heartstrings but lack legal merit. Here, the problem again concerns evidence—typically junk scientific evidence presented by “expert witnesses” that ought to be excluded under applicable rules. The system, like all things human, isn’t perfect. But no one familiar with its operation would think that the royal road to success as a litigator lies in the art of lying. 

Now let’s go back to our politicians, who, like ancient rhetors, address popular audiences and who are free to use whatever rhetorical devices they please, no matter how dishonest. Does success in politics require lying to the public, telling the masses what they want to hear in order to get elected? It would be idle to deny that such strategies sometimes work. Obviously, they sometimes do. 

But, in a larger sense, we cannot accept this argument, at least if we are to continue to believe in government of the people, by the people, for the people. The premise of the American founding—the republic, if we can keep it—is that the people can govern themselves successfully, which assumes that, in general and for the most part, at least in the long run, the people will do a good job of sorting truth from falsehood, sound arguments from specious ones. On average, they will make good decisions, not bad ones. 

There are at least three reasons for thinking this is true. The first is that Plato’s view of human nature was unduly pessimistic. As I have pointed out in these pages before, Aristotle says in the Rhetoric that “things that are true and things that are just have a natural tendency to prevail over their opposites,” and so, if those peddling false and unjust ideas defeat the advocates of true and just ones, then “the defeat must be due to the speakers themselves, and they must be blamed accordingly.” Eschewing an extreme Protestant view of fallen human nature, we have to believe that the human intellect is naturally oriented to the true and the good, and so anyone arguing for the true and the good should always be able to prevail in fair debate over someone spouting falsehoods and insinuating evil doctrines. 

Second, in designing governments, we need not rely merely on the virtue of individuals. As with the justice system, in designing governments we can put in place institutions and rules that tend to limit the influence of bad rhetoric and move things in the right direction. In our system of government, the first of these is our strong constitutional protection for free speech and a free press. It is always possible to counter bad speech with good speech. Another key feature of the system is frequent elections. Bad policies tend to have bad effects, and the ability of even the most skillful lying politicians to convince people who are worse off than they used to be that they’re actually better off is inherently limited (ask Joe Biden about inflation). Specious rhetoric may get you elected, but if you don’t deliver good results, the chances of your getting re-elected are poor. The American system of winner-take-all elections (as opposed to the European parliamentary model) reinforces this important aspect of the system. It also makes elections turn on the views of the median voter, which forces politicians to adopt moderate views commanding broad support. Or again, our bicameral system, with a limited executive veto, effectively requires any legislation to have supermajority support. Since, in this area, Type I mistakes (legislating when you shouldn’t) tend to be worse than Type II mistakes (not legislating when you should), this feature of the system tends to prevent the worst results. Similarly, our systems of separation of powers, checks and balances, and federalism are all designed to give some government officials personal incentives to expose and oppose the bad decisions of others. 

 

Indeed, it is basic to the whole theory of the American Constitution that, given that human beings are generally self-interested (and often ambitious, greedy, vain, and jealous), we should use these motives to protect the public interest by cleverly arranging the internal structure of the government so that officeholders, even if they are not personally virtuous, will find it in their self-interest to make decisions that promote the public interest. As Hamilton explains in The Federalist, No. 72, “The best security for the fidelity of mankind is to make their interests coincide with their duty.” Such ideas were unknown in the ancient world, and they mark a very important intellectual advance over the doctrines of the ancients. 

The final reason for thinking that we the people can govern successfully is that, in fact, we have done exactly that for almost 250 years. Perhaps like so many in his generation, Mr. Schacht thinks America is not an exceptionally good nation. If so, he’s dead wrong. As I argued in First Things when this silly and pernicious notion first started going about in the land, because of its great historical sins—slavery (along with its racist legacies), the mistreatment of Native Americans, and abortion—the United States is seriously flawed. But against these flaws must be set its many good qualities: its republican form of government, its free and fair elections, its respect for freedom of speech and freedom of religion, its protection of minority groups, its commitment to equal protection and the rule of law, its respect for property rights and the freedom of contract, the amazingly high standard of living enjoyed by its citizens, its efforts to improve the lot of the materially disadvantaged, its great deeds in history (such as defeating Nazi Germany, Imperial Japan, and the Soviet Union), and its immense cultural and intellectual achievements, especially in science, technology, law, and economics. Taking all things together and balancing the good with the bad, you have not a moral horror, but a very good country indeed, which is why people from around the world still yearn to come here. If anyone tells you otherwise, he’s a lying rhetor. 

Image licensed via Adobe Stock.