What Is Judicial Rhetoric?
Judicial Rhetoric (also known as Judicial Oratory and sometimes called Forensic Rhetoric) is one of three genres of rhetoricOpens in new window (along with deliberativeOpens in new window and epideicticOpens in new window rhetoric) exclusively concerned with speeches of prosecution and defence in cases being heard in the law-courts (even if it can be applied in other settings).
This sort of speech essentially consists in someone formally accusing a person or the state with a wrongdoing, which could range from homicide and treason to failure to repay a personal debt. The speeches given were either in support of such an accusation (known as categoriaOpens in new window) or as a defence (called apologiaOpens in new window).
In judicial affairs, the judicial orator stands before judges or juries (who have power to absolve or condemn) to pronounce controversies concerning question of past facts, and does so with respect to the two special topics of invention described by AristotleOpens in new window as appropriate for this branch of oratory, the innocence and the guilt (or the just and the unjust).
Although QuintilianOpens in new window admits that there is a great variety in judicial oratory, its “duties are no more than two, the bringing and rebutting of charges.” Thus, there are two parties to judicial controversies, the plaintiffOpens in new window or prosecutorOpens in new window, and the defendantOpens in new window or person charged. The subjectOpens in new window is something past, a past event or fact; and the end proposed by them CiceroOpens in new window calls equity, or right and equity; the former of which arises from the laws of the country, and the latter from reason and the nature of things.
All judicial causes are either private or public; that is, they relate to the right of particular persons, and these are sometimes called civil causes, as they are conversant about matters of property; or they are those which relate to public justice and the government of the state; and these are also called criminal, because by them crimes are prosecuted, whether they be capital or of a less heinous nature.
Note also that in the eloquence of the law-courts, the great object is conviction. Here it is not the speaker’s business to persuade the judges to what is good or useful, but to show them what is just and true; and, of course, it is chiefly, or solely, to the understanding that his eloquence is addressed. Besides, speakers at the law-court address themselves to one, or to a few judges, who are persons generally of age, gravity, and authority of character.
Functional in Other Settings Besides the Courtroom
Despite the most common setting being the courtroom, the techniques of judicial rhetoric could be used outside the courtroom in order to accuse someone or defend against an accusation. In this there are a variety of examples of charges brought for political motives, rather than purely legal reasons.
A person might bring an accusation as part of a wider strategy to discredit their opponent, relating to another legal case, or to a political contest being fought. In this, Long sums up the situation by cautioning that “whenever there is a claim to wrongdoing, the actual cause of the allegations may in fact lie outside the particular charge at hand.”
It is therefore not surprising to find sections of deliberativeOpens in new window and epideicticOpens in new window speeches which employ forensic techniques, bringing or rebutting a charge as part of a broader strategy, as the scholar, Long, concludes that “forensic rhetoric was flexible enough to merge with rhetorical subgenres (deliberative and epideictic).” Two examples are Gorgias’s Encomium of HelenOpens in new window, which spends much time defending Helen’s actions within the broader genre of encomium; and Andocides’sOpens in new window On his returnOpens in new window, which is a deliberative speech to the assembly attempting to persuade the council to allow him to return from exile, and thus includes much forensic material defending his past actions. In general, the “topoi associated with one comprehensive rhetorical genre could readily be subsumed as a smaller strategy within another.”
In sum, judicial oratory or forensic rhetoric is not merely confined to the courtroom (although that is where we find the majority of theoretical treatment and examples) but could be employed in written form and sent as an epistle. Moreover, the bringing or refuting of a charge could contribute to a broader aim, either as one part of a deliberative or epideictic speech, or as part of a larger political strategy.