Scalia's Rhetorical Skill

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This afternoon CSPAN aired (and is actually currently airing again) a debate, or really more a discussion, between Justices Scalia and Breyer on the role of foreign law in judicial decisions on U.S. constitutional law. I very much enjoyed seeing these two interacting, joking with each other, complimenting each other, and engaging in high-level legal issues in fairly understandable language. It was nice to see each conceding points to the other while holding firm on other commitments, and most of what they were doing was clarifying what their positions were without really trying to be critical of other views. Scalia particularly went out of his way to give expositions of other views, in part to try to show that his conclusions would follow even under judicial philosophies he doesn't hold.

One thing really struck me in his explanation of one small point related to his view, and it displayed his keen rhetorical skill (in the good sense of the term 'rhetoric' and not the sense in which something might be mere rhetoric). It's the sort of thing I would hold up as a model for speaking with those who might disagree. He was explaining why people who disagree with him on this should hesitate to see other countries' moral views as a guide to our own. If you want to avoid being arbitrary and circular, you can't pick and choose which countries to guide you to find ones that agree with you. Then he gives an example. Since very few countries allow abortion-on-demand in the first trimester, the American allowance of exactly that is a minority position. If we were going to allow world opinion to shape our interpretations of rights and laws, we'd have to restrict abortion far more than we do. Most left-thinking types don't want that.

Since they tend to be the same people who hold the view he's arguing against, this really meahas more force than some other examples he could have used. He could have said that he wants to resist giving in to more liberal attitudes toward sex, capital punishment, or marriage and then used that to motivate his position. That wouldn't have been all that effective for those who disagree with the positions he's defended on those issues, however. (Technically, he's only argued that the Constitution allows more conservative laws on those. He hasn't defended the laws as good laws.) He deliberately picked an issue where the view he holds is the one he would want people to pick up from other countries and used it to show that we don't want just to use other countries as a source for our own moral views. That's rhetorically effective in a way that doesn't mask the real issues but in fact brings them out more clearly, speaking to the opponent in the opponent's own language. It doesn't amount to a better argument in any logical sense, but it's a much better way of communicating what the argument is to those who might disagree.

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Jeremy at Parableman watched a debate on C-SPAN yesterday, where Supreme Court Justices Antonin Scalia and Stephen Breyer discussed the proper weight to assign to foreign law when deciding controversies... Read More



Soldiers I have worked with often have held up Germany and other countries as examples of having a better moral code than our own. For instance I have heard the following:

We should do like Germany; allow prostitution but tax it.

My anwser: Do we really want to fill our coffers with blood money?

We should do like Germany; let everyone drink then it would no longer be a forbidden fruit. This would make people know how to drink right rather than indulge in drunkeness.

My answer: I saw more falling down drunk people in Germany than any where else. These people were a danger to themselves.

The list goes on so I will not belabor the point. People often feel foreign equates to better. It may be exotic but that does not mean it really is more sophisticated. Is a "Swedish" shampoo more of a shampoo than just shampoo?

I know your point is about more serious debate but the same logic often shows up in pop culture.

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