Written by SpearIt
The business of rhetoric is persuasion. At its zenith, rhetoric functions like a jedi-mind-trick, making us amnesiacs to the history of the present. The law is no exception, where persuasion is everything. Everything about the profession whittles down to persuasion in some form or other—lawyers use verbal tactics to persuade judge and jury, judges use it to write persuasive legal opinions – not to mention legal scholars who ruminate over sexy titles and themes for their articles. Under close inspection, then, the language of law proves to be one big rhetorical script. It is crucial, then, to consider rhetoric within a framework of oppression, both legal and linguistic. Although this is mostly a story about religion’s influence on criminal justice, a discussion on rhetoric might equally have been about its constructive and empowering uses; this piece shines light on the dark side of linguistic hegemony, where language is not merely a tool to communicate, but also, excommunicate. When wielded in this manner, rhetoric speaks to an “other” (another) reality, providing a subtext with words and language to create and maintain a hierarchical world order.
In broad strokes, religious thought is rhetorical ink for the Western pen. In particular, the Bible offers primordial lessons in the power and politics of naming. In the story of Genesis, God’s first act after saying “let there be light” was to name the light “day” and the dark, “night.” After creating the first human, Adam, he brings in every beast from the fields for naming. The sequence of events is telling since only after something has been “created” can it be named. More practically, religion is a source of rhetoric found in the language of law, including “prayers for relief,” and the “witness” who “swears” before giving “testimony” at “trial.” Biblical narrative provides more.
It may be of little surprise, then, that those who came to settle in this land, who spiritually identified themselves as “puritans,” also chose the term “white” to ascribe themselves. The term was synonymous with “enlightenment” and opposite of “darkness,” a foil against which the most sinister, threatening concepts could be measured. “White” meant cleanliness, innocence and fairness, hence a person of “fair” complexion. The connection was made explicit in 1835 by the South Carolina Supreme Court in State v. Cantey, which held that any man, even if from inferior caste could hold the rank of a “white man” if “he is a man of worth, honesty, industry, and respectability.”
For American slave owners, the Bible justified slavery against blacks—it was the living reality of the “sin of Ham” or “curse of Canaan,” where Noah curses his own grandson, Ham, a “burn” that branded dark skin with subservience. Today, although most people learn that slavery “has been abolished,” this is rhetoric at its peak, since, of course, the 13th Amendment did nothing of the sort. Rather than abolish, it merely transferred slavery’s applicability from blacks to those convicted of a crime, which would largely turn out to be one in the same. The secularized designation “criminal” in fact had roots in medieval Church-based law, which separated sinners from the rock bottom: criminals. The “secular” state took the baton from here and used this term to denote offenders of the state; even the notion of “judge” is from the Bible deriving from the Greek krino, which gives us, among other words, crime.
Religious rhetoric not only informs language, but also the substance and procedure of law itself. History teaches that when they came and conquered England, the Normans brought with them the “trial by battle,” which gave shape to the adversary system and rise to modern legal concepts such as “defense” and “defendant.” The Norman kings called the trial system “apostolic law,” which built around the Judgment Day narrative in the Book of Revelations. In this story, when the Son of Man returns to judge humanity, he does not judge alone—he has the help of his twelve disciples—a judge and jury of twelve. Hence, criminal tribunals rhetorically replicate the religious narrative, perhaps a persuasive attempt to find favor in the eyes of the Lord, or to show that God’s law reigns.
In addition to criminal justice, purity rhetoric thrives in society’s portrayal of criminals; convicts are pollution personified, the dregs of society that come from the lower bowels of the social body, excrement and sewage; the criminal is social colonic. The criminal also provides an objective baseline for a host of other derogatory labels, including “animal,” “monster,” “predator” and “super-predator.” Such designations derive from political and law enforcement leaders and their talk of “cleaning up crime,” “cleaning up the streets,” or the more practical “crime scene cleanup.” The language is telling, especially when crime and dirt are interchangeable; the streets need cleaning from “dirty criminals” and their “dirty money” that needs “laundering.” Thus, when Jose the “dirty bomber” Padilla was branded as such, there was likely more than nuclear weapons at stake, including crime and the idea of “doin’ dirt.” This was undoubtedly the case in the Vietnam War, where the enemy was slurred “gook,” an English term conveying dirt, sludge or slime. Perhaps this helps explain how government officials “got off clean” for isolating and torturing Padilla.
More than anything, rhetoric is a power tool. Like a Swiss army knife, it has a range of uses—it can be used for righteous ends, like a doctor using a scalpel to save a life, whereas in the hands of a killer, it can take a life—the same knife. In the age of “illegal aliens” and “anchor babies” it is a reminder to sharpen continually our own blades as we approach the law. Our best practices in teaching law should include constant mindfulness of how rhetoric fits into the puzzle, and more importantly, why we should always strive to use rhetoric in the service of justice, rightness and reform; let us adorn a temple rather than deface ruins.