On Rhetoric and Truth:A Reply to Neil Duxbury

DENNIS PATTERSON

In his recent review of Law and Truth (Duxbury 1999), Neil Duxbury hasmany complimentary things to say about various aspects of my book(Patterson 1996). He notices that I make an effort to take seriously thepositions of those with whom I disagree. He compliments my knowledgeof the philosophical work of Wittgenstein, and notices his influence.He even states correctly the question that lies at the heart of the book, `̀ Whatdoes it mean to say that a proposition of law is true?'' But when it comesto the elaboration and evaluation of my position, Professor Duxbury mis-understands that position, and rather seriously so. I should like to correctthis.

Professor Duxbury writes that I `̀ advance [_] a notion of truth asrhetoric'' (Duxbury 1999, 116). I do not agree. Rhetoric, as practiced by theSophists in the fifth and early fourth centuries, was the art of making theweaker argument appear stronger. Professionally speaking, Sophists hadno interest in truth. This may be why Aristotle describes a Sophist as `̀ onewho makes money by sham wisdom'' (Aristotle 1985, 165a22). Sophiststaught that, truth not withstanding, one could alter another's perception ofthe truth through verbal manipulation. In the Sophists' hands, rhetoric wasa tool of deception and canard. Truth was the last concern of the teachers ofrhetoric.

The point of Law and Truth is not to advance a thesis about how truth iseither concealed or revealed. That topic is never discussed. What isdiscussed is the nature of truth in law. Consider the ordinary example ofa person seeking the advice of a lawyer. In the usual course of things, onehopes the advice is correct. In other words, one hopes that the lawyer'sstatements of what the law prohibits or requires are correct or true.

The issue I take up in Law and Truth is what it means to say that aproposition of law is true. Some of the various answers on offer in

# Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

Ratio Juris. Vol. 13 No. 2 June 2000 (216±218)

contemporary jurisprudence are considered. Are propositions of law truebecause they are consistent with moral propositions which show the law inits best light (Dworkin)? Are legal propositions true because members of aninterpretive community agree they are true (Fish)? Or are legal propositionstrue because they are consistent with social facts about what the legislaturehas done (Legal Positivism)?

Not one of these theories considers the rhetorical dimensions of legalargument. And neither does mine. I argue that lawyers use forms ofargumentÐtextual, historical, doctrinal, structural, prudential, and ethicalÐto show the truth and falsity of propositions of law. It is in the use of theseforms of argument that lawyers (and anyone familiar with the forms)sustain their claims for what the law prohibits or requires.

This is the barest sketch of the argument in Law and Truth. But it issufficient to bring me to the central contention of Professor Duxbury'scommentary. He thinks that explicating truth by reference to linguistic useis unconvincing (Duxbury 1999, 118). The reason for this is quite simple: Itcannot be the case that convincing someone that a proposition is true issufficient to make it true. As an example, Professor Duxbury believes that`̀ it is surely misleading to say that this inculcation of belief amounts to acreation of truth'' (ibid.). Sadly, it seems, my book is found to make just sucha claim.

Happily, I make no such claim. What Professor Duxbury's exampleshows is that he conflates two logically-distinct notions: Whether aproposition is true and what it means to say that a proposition is true.The question whether Santa Claus exists is an empirical question. But toanswer the question, one needs to know what counts as proof of the truth orfalsity of the proposition. The assertion that Santa Claus exists can be shownto be true or false through the use of criteria (the experimental equivalent oflegal forms of argument) for assessing the truth of matters of fact. Themodalities for showing the truth of empirical propositions are themselvesneither true nor false: They are the means by which truth and falsity areshown.

The Santa Claus example serves to prove the opposite of what ProfessorDuxbury intended. A child of five is likely to believe that Santa Claus exists,whereas a child of twelve is likely to contest the existence of Santa. What is itthat the twelve year-old has and the younger sibling lacks? I would say it isfacility in the use of empirical modalities. The five year-old child lacks thecognitive ability to decide matters of fact. The twelve year-old has thisability and can demonstrate proficiency by questioning assertions regardingthe existence of Santa.

Professor Duxbury's use of the Santa Claus example confirms hismisreading of the argument in Law and Truth. Just as there is a differencebetween a proposition being true and one's believing it to be true, there is adifference between the truth of a legal proposition and the means for

On Rhetoric and Truth 217

# Blackwell Publishers Ltd 2000.

assessment of its truth. It is this difference that makes all the difference.Without it, one cannot understand the argument of Law and Truth.

Rutgers UniversitySchool of Law (Camden)

5th and Penn StreetsCamden, New Jersey, 08102

USAE-mail: dpatters@camden.rutgers.edu

References

Aristotle. 1985. Sophistical Refutations. In The Complete Works of Aristotle: The RevisedOxford Translation. Ed. Jonathan Barnes. Princeton, N.J.: Princeton UniversityPress.

Duxbury, Neil. 1999. Truth as Rhetoric. Ratio Juris 12: 116±21.Patterson, Dennis M. 1996. Law and Truth. New York: Oxford University Press.

218 Dennis Patterson

# Blackwell Publishers Ltd 2000.