I write to suggest that poetics, as opposed to rhetoric, is a better theory with which to evaluate judges’s decisions because judges, unlike their counterparts at the bar, occupy positions of such social weight that they primarily wield cultural power. Their function is not to argue, which is a rhetorical preoccupation: judges declare realities in a way much closer to what Aristotle, one of poetics’ foremost ambassadors, defines as poetics: “is it not the poet’s function to relate actual events, but the kinds of things that might occur and are possible in terms of probability or necessity”.
The poet, like a judge, frames what might be in terms that convince us that such a reality is desirable, or that it exists. Evaluating judges through a poetic lens looks at once for great style and storytelling, but I have only the space to develop a brief analogy: judges are storytellers that bring social rules into contact with disruptive sets of facts. In order for laws to properly mesh with real situations, judges must seamlessly present law with facts. In so doing, they occupy the place of Aristotle’s poet.
The poet’s chief resource is inspiration, which works by building the tension to a fever pitch before collapsing it into an edifying close. The legal action is such a close, albeit for one party over the other. Viewed more broadly, however, the community that can observe any court of record gains benefits when any discord is resolved. Aristotle’s description of tragedy links one poetic form, the drama, to the resolution of conflict:
Tragedy, then, is mimesis of an action which is elevated, complete, and of magnitude; in language embellished by distinct forms in its sections; employing the mode of enactment, not narrative; and through pity and fear accomplishing the catharsis of such emotion.
That central word, catharsis, runs through a story’s verisimilitude. The human facts of a legal case are pitted against the cold abstraction of laws. We feel pity and fear for the side we find most appealing; the judge works that pity and fear through themselves and (if skilled) through the zeitgeist to come to a catharsis, where the ‘right’ party wins, and is seen to win.
This is not to say that law is populist. Though Aristotle did not, of course, extend poetics to judges’ decisions, their products are, in the most un-Aristotelian idealism, imitative (rather than explanatory) works. They draw on strains of thought known to each individual judge to create stories that we might accept as true. In pure judicial logic, judges’ decisions allow a requested action to move forward with the community’s tacit blessing. They wield that force as individuals guided by laws that express communal will. The decision weds the two. It does not always have to be correct, nor can it inspire the entire population. It must only tell the story in a seamless blend of rules influencing characters’ decisions and of characters using rules.
The existence of a theory of speech devoted to rational argument may undermine any focus on the judge as a cultural figure. Rhetoric — a way of arguing that self-consciously appeals to emotion through “the existing means of persuasion” — uses observation of the audience to generate a sympathetic response. On this view, the primary goal of courtroom speech, whether written tracts or spoken argument, is underlaid with a need to identify the audience’s predisposition. Identifying that predisposition, however, takes attention away from the action and focuses it on a narrative. The subject of speech becomes the rules through which speech flows, not the substance itself. That misplaced focus weakens the force of judges’ decisions. Though the community’s rules matter, the facts to which rules must apply motivate popular views of justice. This might be a difference of degrees, but it is one perceived by a less critical populace because they can seize on facts to understand the issue; the rules themselves are entrusted to the legal profession. Those rules form the basis of a system that must over and over again convince the wider public of its utility.
If the goal of judging is, like that of poetry, catharsis, there must be some higher, more magnitudinous, set of principles to which a judge appeals. Justice writ large might be amorphous enough to fit the bill; Common law appears also to value closure in and of itself.
Take one recent Canadian case of a illegal dog slaying where the judge appealed to closure to justify her lengthy reasons for a minor charge. Provincial Court Justice Nicole Adams sentenced a man who pled guilty to shooting his neighbour’s dog dead. She ended her reasons by acknowledging the need for closure on the facts of the shooting, which had caused controversy in the small town:
I have issued these reasons so that the residents of Savary Island will be advised of the set of facts put before the Court at sentencing, in the hope that this knowledge will benefit all of its members and strengthen the whole of the community. R. v. Ferreira, 2018 BCPC 142 (CanLII) (n.d.).
The judge uses her position to channel the community’s energies through a single pen. Her reason for exercising this social power is catharsis: the community affected by the dog’s killing receives closure from the judge’s creation of a drama that carries the weight of her office. This case evokes the legal value of catharsis. The community’s wounds must heal through their exposure to public scrutiny. Poetics is the vehicle for such catharsis, for faith is the faculty to which judges appeal after lawyers’ rational arguments to convince the population.
We see some of this division in the Elizabethan Anglican legal scholar, Richard Hooker’s exalted statement of the rule of law:
Happier that people, whose law is their King in the greatest things than that whose King is himself their law. Where the King does guide the state and the law the King, that commonwealth is like an harp or melodious instrument, the strings whereof are tuned and handled all by one hand, following as laws the rules and canons of Musical science. Richard Hooker, Of the Laws of Ecclesiastical Polity. Vol. 3, Books VI to VIII, ed. Arthur Stephen McGrade (Oxford: Oxford University Press, 2014), 203.
If law is to be a King, it must resonate with its subjects. Resonance is a musical term; we turn to poetics for a similar concept in literary, or spoken, terms: faith, inspiration. The listener’s soul must be touched in some way by the stories that judges tell, for they play the ‘melodious instrument’ that is a Western commonwealth. Hence their poetic role over and above the rational one we too often envision for them.
ADAM STRÖMBERGSSON-DENORA is completing a law degree at the University of Ottawa. He holds an MA and a BA in English Literature. His masters’ thesis focused on seventeenth-century political rhetoric and poetics in Andrew Marvell’s poems. While maintaining a passion for literary history, Adam is increasingly turning his mind to Canadian legal theory and history, with a particular focus on religion, law, and human rights. He is also in the process of publishing a history of the University of Ottawa’s turn from a religious to a non-denominational institution.