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Sophistry watch

By       Message Evan Whitton     Permalink
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Court reporters and legal analysts should be trained in sophistry in order to recognize it when it issues from the mouths of judges and lawyers, and to then tick it off for their customers.

Sophistry is the art of lying. A liar tries to persuade others to believe things he believes to be false. The motive is gain. The Sophists taught Athenian lawyers how to do it 2,500 years ago. Nothing changes. A US lawyer, Charles Curtis, said a lawyer's function "is to lie for his client. He is required to make statements as well as arguments which he does not believe in."

A prudent legal system thus keeps lawyers on the tightest of leashes. The legal system used in England and its former colonies is not prudent: it even allows lawyers to control evidence, and judges are not trained as judges -- they are lawyers trained in sophistry one day and judges the next.

The public thus cannot know whether judges' rulings and opinions are based on fairness or on sophistry for some other reason.

That leads to alienation, but judges believe no one can stop them resorting to sophistry if they want to. US Chief "Justice" (1969-86) Warren Burger (1907-95) told John Marshall Harlin II: "We are the Supreme Court and we can do what we want."

It would thus be useful if a legal analyst explained in simple terms the sophistry used in Bush v Gore (US Supreme Court, Monday, December 13, 2000). Five judges came up with a form of words which effectively said that democracy means you don't count all the votes.

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They were William Hubbs Rehnquist (1924-2006, judge 1972-2006), Sandra Day O'Connor (b. 1930, judge 1981-2006), Antonin Scalia (b. 1936, judge 1986-), Anthony Kennedy (b. 1936, judge 1988-), and Clarence Thomas (b. 1948, judge 1991-).

A dissenter, John Paul Stevens (b. 1920, judge 1975-2010) elaborated the obvious. He said: "Although we may never know the winner, the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Research a year later showed that Albert Gore would have been President rather than George W. Bush if all the votes had been counted. I hope someone has kept score on the cost in blood and money of that bit of sophistry. In Iraq alone, the cost was hundreds of thousands of lives and some $700 billion.

Citizens on sophistry watch will have their own lists of suspected sophistry. Here is a case from Australia's High Court in which the cost to pay-as-you-earn taxpayers has been quantified...

In Curran v Federal Commissioner of Taxation (1974), Chief Justice Sir Garfield Barwick and Justices Sir Harry Gibbs and Sir Doug Menzies effectively found a form of words which said a profit of $2,782 was actually a loss of $186,046. Tax lawyers did nicely; self-employed persons rushed into "Curran" schemes.

That sophistry has been estimated to have cost the Treasury at least AU$5 billion at today's rates. PAYE taxpayers had to make up the difference.

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Evan Whitton was Chief Reporter at The Sydney Morning Herald and Reader (Associate Professor) in Journalism at Queensland University. He received the Walkley Award (Australia's Pulitzer) five times, and was Journalist of the Year 1983 for "courage (more...)

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Sophistry watch