Twitter,
King Lear, and the Freedom of
Speech
John
Curtis (
The
Shakespeare Institute, University of
Birmingham)
and
Judicial
Allusion as Ornament:
A Response to John
Curtis’s, ‘Twitter, King Lear,
and the Freedom of Speech’
Professor
Gary Watt (Warwick Law School, University of Warwick)
Abstract: On 27 July 2012, in his judgment following ‘The Twitter Joke Trial’, the Lord Chief Justice of England & Wales quoted from King Lear (Folio). The trial was the first time a British Court had considered the use of Twitter in the context of a bomb hoax. The judgment was hailed as ‘a victory for common sense’, reversing decisions of two lower courts. It now provides authority against similar prosecutions. This paper argues that the use of a four-hundred-year-old Shakespearean text in negotiating modern legal principles is of considerable cultural significance—both through using the familiar to respond to the new—and by invoking Shakespeare’s voice within the powerful social mechanism of the law courts. It also considers the advantages and disadvantages of literary allusions within legal proceedings, contrasting these two widely reported judgments.
This piece is adapted from a
transcript of: King Lear,
Twitter and the
Da Vinci Code given as part of the Sidelights
on
Shakespeare lecture series at University
of Warwick on 29 November 2013.
Professor Gary Watt provides a
response to Curtis's
critical reflection, considering judicial allusion as logic or
ornament.
Keywords:
Shakespeare,
Law Courts, Twitter,
literary allusion
John
Curtis (The Shakespeare Institute, University of Birmingham)
In
July 2012, in a landmark case
now known as ‘The Twitter Joke Trial’, Lord Judge,
the Lord Chief Justice of
England and Wales gave a judgment that was praised as ‘a
victory for common
sense’.[2]
In the course of delivering the Court’s decision, his
Lordship chose to refer
to Edgar’s final speech in the last scene of King
Lear (Folio).[3] The
case, formally recorded as Director
of Public Prosecutions v Paul Chambers,[4]
had
reached the upper echelons of the Royal Courts of Justice during June
2012. It was the first time that the English courts had
engaged with
Twitter as a format for delivering menacing communications. The
judiciary’s use
of a 400 year-old Shakespearean text to negotiate electronic social
media and
modern legal principles is, I suggest, interesting and significant,
both in the
use of the familiar to respond to the new – and through
invoking Shakespeare’s
voice within powerful mechanism of the law courts.
This
analysis sets out the
background to the charges and the court proceedings, it then considers
the
judgment within the context of the aims of judicial opinion-writing
before
focussing on and three types of rhetoric: logos, pathos and
ethos. Through
exploring the rhetorical potential of this literary allusion, the
critique
highlights Shakespeare’s apparent acceptability and utility
in the legal
discourse. Given that there are calls for a more diverse judiciary, one
that
represents and reflects society, the piece invites us to consider: Is a
Shakespeare-quoting judiciary good or bad?[5]
Paul
Chambers was an accountant. He
was aged 26, lived near Doncaster and had a Twitter account with some
600 followers.
In January 2010, he was planning to fly from Robin Hood Airport in
South
Yorkshire to visit a female friend in Belfast. Snow caused the airport
to close
and on 6 January, Chambers posted on his Twitter timeline:
Crap!
Robin Hood Airport is closed.
You’ve got a week and a bit to get your shit together,
otherwise I’m blowing
the airport sky high![6]
The
tweet could be seen by
Chambers’ followers and located by anyone browsing the
internet. Nothing
significant happened until five days later when an airport security
manager saw
the tweet. It was reported to the Police and on the 13th
of January,
2010, officers arrested Chambers on suspicion of involvement in a bomb
hoax. He
was interviewed and asserted that his tweet was a joke and that it was
not
intended to be menacing. On the advice of the Crown
Prosecution Service,
Chambers was charged under Section 127 of the Communications Act
2003. That
section provides:
A
person is guilty of an offence
if he … sends by means of a public electronic communications
network a message
or other matter that is grossly offensive or of an indecent, obscene or
menacing character.[7]
Chambers
pleaded ‘not guilty’ but
was convicted by a District Judge in the Magistrates Court and ordered
to pay a
fine with costs. Given that his professional standing was now
compromised with
a criminal record, he lost his job. An appeal followed to the Crown
Court. There, the conviction was upheld by another Her Honour
Judge
Davies and two lay justices. The Crown Court took the view that an
ordinary
person reading the tweet would be alarmed. The Court noted
public
concerns regarding terrorist activity and the unnecessary disruption
that could
be caused by false security alerts. Unusually, the Crown Court also
asked for
more senior judges in the Administrative Court to confirm that the case
had
been approached correctly. The case was listed before Lord Justice
Gross and Mr
Justice Irwin. They did not issue a decision and referred
matters to a
court of three judges, headed by the Lord Chief Justice. Media
interest
had grown considerably. Newly appointed counsel for Chambers was John
Cooper
QC.
At
the final hearing in June
2012, Cooper did not simply attack the logic of the lower
courts’ decisions but
developed his arguments with creative flair. He submitted that a
measure of
latitude was required when considering such communications. In
proceedings and
in support of this contention, he drew two poetic parallels, saying
that
literal interpretations would mean that John Betjeman could be arrested
for
writing “Come friendly bombs and fall on Slough”
… and that Shakespeare himself
would have been in trouble for penning the words
“Let’s kill all the
lawyers.” In response to Cooper’s Henry
VI reference,
Lord Judge is reported as responding:
‘that was a good joke in 1600 and it is still a good
joke’.[8]
Judgment was reserved and one month later, on 27 July, Lord Judge read
out the
Court’s decision, attracting worldwide comment.[9]
With 38 paragraphs and running to around 6,500 words, the judgment is
not
overly long or complex but the time between the closing of arguments
and the
Court’s decision suggests that it was crafted with care.
His
Lordship began with a
recitation of the legislation and explained terms such as
‘Twitter’, ‘tweet’,
and ‘followers’. He then set out the facts. At
paragraph 28, Lord Judge
developed his analysis, referring to Franklin D. Roosevelt’s
1941 State of the
Union Address (more commonly known as the Four Freedoms
speech). Here, the
opinion strongly identifies itself with ideology and giving the
emphatic
reassurance:
The
2003 Act did not create some
newly minted interference with the first of President
Roosevelt’s essential
freedoms – freedom of speech and expression. Satirical, or
iconoclastic, or
rude comment, the expression of unpopular or unfashionable opinion
about
serious or trivial matters, banter or humour, even if distasteful to
some or
painful to those subjected to it should and no doubt will continue at
their
customary level, quite undiminished by this
legislation.
Lord
Judge continued:
Given
the submissions by Mr
Cooper, we should perhaps add that for those who have the inclination
to use
Twitter for the purpose, Shakespeare can be quoted unbowdlerised, and
with
Edgar, at the end of King Lear,
they are free to speak not what they
ought to say, but what they feel.[10]
The
judgment also incorporates
references to the academic textbook Smith
and Hogan on Criminal Law
(13th Edition) and to the Oxford English Dictionary (shorter version)
together
with quotations from two other eminent English judges, Lord Bingham and
Lord
Justice Sedley.[11]
Reversing the previous decisions and quashing the conviction, Lord
Judge stated
that the lower courts had reached a conclusion that was not, on the
facts,
available to them.
The lower courts had,
he said, given too much emphasis to the involvement of the
police—which had only
been as a matter of routine—and not enough weight had been
given to the way in
which people had actually responded. Importantly, there was
nothing to
suggest that a person with ‘reasonable fortitude’
would have been alarmed by
Chambers’ tweet.[12]
The decision was welcomed by Chambers’ supporters, including
comedians Stephen
Fry and Al Murray.[13]
So
with dictionaries, textbooks,
leading barristers, popular satirists, Shakespeare, top judges and an
American
president all in harmony, the occasion highlights an unusual
intersection of
Law and Literature, of culture and intertextuality, one that provides
an ideal
opportunity for interdisciplinary discussion. With that in mind, I
offer the
following thoughts on judgments as a repository of rhetorical
literature and on
the specific contribution that the Shakespearian reference makes to
this case.
Judgments
as Rhetoric and Literature
The
written decisions of the
English judiciary attract little attention from scholars outside of the
Law and
although the scope of this article does not permit for a detailed
discussion of
judicial writing styles, it is suggested that judgments represent an
under-explored resource for those interested in language and how
meaning is
conveyed. Judges use semiotics, narrative and rhetoric in ways that
will be
familiar to scholars interested in performance theory, Literature
and/or
linguistics. There are some (perhaps many) features that distinguish
judgments
from other literary writing: a judge does not have an
artist’s choice of
subject matters and judges are more constrained than artists in their
mode of
delivery. Clarity, factual accuracy and presenting an unequivocal
decision are
objectives that may not govern artistic responses and judicial opinions
provide
more limited opportunities for humour, irony and plot devices.
Ultimately
however, Law like Literature concerns itself with the study and
interpretation
of texts. Likewise judgments are texts that reflect important aspects
of our
culture, providing a valuable perspective on society and human
relations.
Having
outlined their wider
importance, it must be acknowledged that the literary quality of
judgments
varies but generally judgments share common features: they come at the
end of
cases, explain the issues, state the relevant law, apply the law to the
facts
and provide a conclusion that is expressed in absolute and compelling
terms. They are rhetorical compositions mapping competing
narratives
against an evidential matrix. An advocate is charged with advancing a
client’s
case, explaining how actions and intentions fit within their
‘theory of a
case’. An advocate’s account is, of
necessity, partisan. A judgment is
different. Like an advocate’s argument—it should be
clear and persuasive
but it goes wider and is more complex. It is heteroglossic, its
macrostructure
accommodates conflict; it links submissions with documentary evidence
and
witness testimony; it may refer to legislation, to common law
principles; it
may incorporate the wisdom of other judges, expounded in quotations
from cases
that have precedential value. Above all, judgments seek to demonstrate
an
objective, systematic approach to the issues at hand, showing that the
decision
results from careful, balanced analysis rather than arbitrary whim. On
that
basis, we can legitimately ask: what place can judicial rhetoric have
in a
legal decision?
That
question is addressed here
by way of illustration and through consideration of three types of
Aristotelian
rhetoric that are at play in the Chambers
judgment: logos, pathos and
ethos. For present purposes, logos can be taken as referring
to logic
whereas pathos relates to more emotive arguments: appeals to what may
perhaps
be referred to as ‘fairness’, ‘the spirit
of the law’ or ‘natural justice’.
Pathos is not necessarily the opposite of logic, but it is
different. We may be suspicious of arguments
connected with
emotions but they have a place, particularly when logic appears to
falter.
Ethos relates to personal credibility and moral character, why we may
instinctively believe one person over another. It may be inferred from
elements
such as someone’s title, their affiliation, appearance and
gravitas. Ethos is
less about what is said as opposed to who says it. It can be
pre-logical in the
sense that prior knowledge of the speaker’s credentials prime
our reactions
before a word is uttered. The next sections takes these each of these
types of
rhetoric in turn.
Logos
The
judgment in Chambers
commences with an ostensibly ‘logical’ approach,
reviewing events, legislation
and some cases that have some similarities to the events in issue.
Indeed, it
could be contended that the Shakespearian reference is ornamentation
and
irrelevant to the decision. It, like the Roosevelt one, could be
eradicated
from the text without interfering with the pattern of legal reasoning
that
follows the exposition. As such the literary allusion could be viewed
as
inconsequential, but such an approach presupposes that there is there
is a
single answer, deducible by logic alone and that subordinates other
rhetorical
considerations.
In
resisting the notion that this
judicial decision is ‘all about logic’ it is
noteworthy that the two criminal
courts would presumably have claimed that they had also approached the
matters
‘logically’. The two criminal courts would have
been satisfied that their
conclusion was ‘logical’—indeed
commensurate with the requisite standard of
proof, they must have been ‘sure’ that guilt was
made out. The prosecution was
also undertaken on the basis that a cogent case could be substantiated
and the
prosecution was likely to succeed. The two-judge Administrative Court
appears
to have been split on the merits, necessitating the three-judge
constitution. In each instance, the same evidential matrix had
been
mapped against the same statutory framework and permitted different
courts to
come to different conclusions. Moreover, the central question
in Chambers,
was whether the message was of a ‘menacing’
character. Science and
mathematics could not assist in determining that. What is different
about Lord
Judge’s judgment? Why was it that his judgment commanded
popular assent?
The simple assertion that it
is more ‘logical’
is unsatisfactory. The differentiating elements are, I suggest, that
pathos and
ethos contribute to it being ‘a victory for common
sense’—the decision seeks to
combine the judicial logic that is evident from the review of the facts
but it
also displays empathy and deploys maxim, harnessing pathos and ethos,
partly at
least, through Shakespeare. Logic is not easily divorced from rhetoric
and is
interlinked with structure. An exhaustive recitation of events coupled
with
ponderous analyses of cases and statutes will not necessarily make for
a clear
judgment, nor for one that is persuasive. Long, boring and
‘technically
correct’ may fit stereotypical expectations of judges but
will not always be
good in terms of winning and maintaining public confidence in the
judiciary.
Indeed, some jurists accept
that aesthetics have a place in ‘great’ opinions
noting judgments can be
enhanced with sincerity and empathy, accompanied by ‘the
mnemonic power of
alliteration and antithesis, proverb and maxim’.
If
narrative can be conceived as the
essential information that takes us on a journey from
‘proposition A’ to
‘conclusion B’, then rhetoric can be conceived as
how we get there. Rhetoric
can ease the syllogistic pathway that characterises legal analysis or
make it
more difficult to follow.
The
Shakespearian reference can
be seen as part of a signposting device that highlights the importance
of free
speech and introduces two extra-legal authorities to support the legal
logic.
The analogy comes at a crucial point in the judgment as the opinion
shifts from
the recitation of facts to values and analysis. Its deployment
represents
the Court’s attempt to signal in plain terms where it is
going and that its
understanding and considerations will extend beyond ‘black
letter’ law—none of
Hamlet’s ‘quiddits’ or
‘quillets’ are to be expected.
Pathos
In
this case, the quotation is
not just more legal language, it is a literary artefact, inserted and
locked
within the recorded decision, a cultural link with the legal principle
of
responsible free speech, a concept that we agree with and one that has
a
powerful emotional association with King
Lear.
Cognitive
psychology acknowledges
that an unexpected stimulus can simultaneously trigger several
different
thought patterns. Instinctively and rapidly, we seek connections to
resolve the
unexpected. It is not always possible to explain exactly what persuades
us but
the mention of King Lear
prompts us to recall the play’s moral
conflicts, its allegorical themes and the raw emotions that produce the
catharsis associated with the theatrical experience. The pathos of the
play
exerts a considerable pull on us and what follows is an attempt to show
how
this analogy may activate certain sentiments.
Morally,
we value tolerance and
diversity, and, broadly, people should be able to say what they feel.
The Lear
quotation reflects a modern, democratic agenda and a human
right. We may
connect on that level and find ‘justice’ in Lord
Judge’s decision. The idea
that Shakespeare himself advocated free speech also allows for a
flattering
comparison and self-identification.
Thematically,
we may find a
connection between the two storylines—Lear
is a play about the nature of
speech acts: the artificiality of the ‘glib and oily
art’ is set against plain
words; contrived speech is contrasted against spontaneous rage; the
value
attached to material artefacts and to nothing. The plot of the
‘Twitter Joke
Trial’ is also about communication; powerful words
transmitted across the
ether, words that have had significant import conferred upon them but
that were
ultimately shown to be ‘hollow’.
Symbolically,
Lear
has
become a dominant post-modern allegory for a changing society and
existentialism. The play takes us beyond the plight of an old man and a
beggar
roaming on a weathered heath. The old become vulnerable and renegotiate
their
place within the social structure, the young rise. Dysfunctional
families,
inheritance tax and arrangements for social care are themes from
current
affairs and to which the play speaks. Invoking Lear has a
hard-hitting
impact that would not come from citing a Shakespearian comedy or a
lesser-known
work.
Finally
on pathos, there are also
structural and tonal connections between Edgar’s closing
speech and
judgments. Edgar’s
speech follows a succession
of personal tragedies. His lines are delivered in a moment of
stillness,
they have a reflective quality, a quiet assertiveness as opposed to
triumphalism. Judgments too follow the emotion of
unpredictable,
contested trials where liberty, livelihoods, careers and reputations
may be at
stake. A judgment concludes a case with measured solemnity
that coincides
with the tone of Edgar’s final words at the end of the play:
The
weight of this sad time, we
must obey,
Say
what we feel not what we
ought to say
The
oldest have borne most
We
who are young shall never see
so much.
Ethos
There
is something more than
logic and emotions here that is the ethos of the judgment: a cerebral,
intellectual association that invites us to agree with the judgment
because
Shakespeare is quoted—along with an American President and
the Oxford English
Dictionary. The Shakespeare reference invites us to conceive of the
Lord Chief
Justice in another way too—not as a remote and powerful
exponent of the Law but
as a person with whom we share a literary culture. Shakespeare
is deployed
as reliable source of wisdom in the judgment and we may also
infer that
anyone who quotes from such a range of sources—literary,
legal and political—is
educated, more familiar with ‘life’ and, having
appraised the issues from
different viewpoints, is more likely to have reached a just decision.
This in
turn, tells us something about Shakespeare’s significance
within the legal
process. The deliberate choice to invoke Shakespeare confers a
special
status on him: his text is adapted to form the Court’s
own.
Conclusion
The
deliberate choice to utilise
Shakespeare represents an attempt to engage with a non-legal, popular
source,
to augment the opinion with more than pure logic. Removing the
Shakespeare
reference would change the judgment’s form and style. The
points on pathos and
ethos have little to do with logic, rather they work on the basis of a
shared
understanding and our interest in a piece of literature—specifically
Shakespeare’s Lear.
The Shakespeare reference is a rhetorical device, it
follows the unfamiliar, technical language of legislation and a mundane
account
of the events. Auditors and readers are then confronted by the
unexpected but
familiar. The case is linked to political freedoms and a great literary
work. It is a rhetorical device that is Brechtian, a literary
Verfremdungseffekt, intended to capture the reader’s
attention and to win the
reader’s confidence.
We
desire judgments by humans not
by machines. In this case, the judges use Shakespeare to
display their
cultural and political heritage and to emphasise the humane
considerations that
apply in their decision-making. In doing so, they underscore that
judges do not
sit—and must not be perceived as sitting—in
isolation from society but as part
of it. In this case, Shakespeare forms part of an engagement
strategy.
References
(Journalist,
Year, Title) The
Telegraph http://www.telegraph.co.uk/technology/twitter/9432444/Twitter-joke-trial-authorities-akin-to-The-Stasi-says-Al-Murray.html
[last accessed 28 February 2014].
Professor
Gary Watt (Warwick
Law School,
University of Warwick)
John Curtis’s paper contributes to the long-established interdisciplinary field of ‘law and literature’, and to one of its major sub-sets, which is ‘law and Shakespeare’. The most common expression of ‘law and literature’ is in the form of ‘law in literature’ (for example, consideration of contract law in The Merchant of Venice), but Mr Curtis has taken the more unusual course of studying literature in law (where it takes the form of judicial allusion to the works of Shakespeare). John Curtis is a practicing barrister, so it is to his credit that he has not contented himself with the law of literature (for example, the law of copyright), and it is to his further credit that he has explored the possibility of law as literature in so far as he regards judicial judgment as a rhetorical text. One recalls Richard Weisberg’s observation (itself an echo of something the American judge Benjamin Cardozo once wrote) that:
the form of an opinion actively contributes to its correctness: style thus conceived is an element to be evaluated as part of the decision, not as (an) ancillary or merely ornamental element.
Lawyers have traditionally been rather enthusiastic trespassers into the literary domain, perhaps emboldened by the knowledge that trespass is merely a civil (not a criminal) offence and by the fact that there is no liability for trespass unless there is damage done. The question that most exercises me as I consider the conduct of judges who allude to Shakespeare is whether there is any harm done. In Weisberg’s language, does judicial allusion contribute to the ‘correctness’ of a judicial opinion, or is it merely an ‘ornamental element’? John Curtis shares this concern. Noting that ‘there are calls for a more diverse judiciary, one that represents society’ he asks ‘[i]s a Shakespeare-quoting judiciary good or bad?’
Mr Curtis cites allusion to Shakespeare in a judicial decision as proof that the judicial decision is not ‘all about logic’. In one sense it is true that allusion to Shakespeare is not logical in a deductive sense. Indeed, the rhetorical argumentum ab auctoritate (the appeal to authority) is considered to be one of the weakest arguments syllogistically-speaking. In law, however, authority trumps logic. The lower court must in theory follow the higher court no matter how faulty the logic of the higher court might appear to be. The junior judge will respect the senior. The phenomenon is not restricted to judicial comity. Academic authors of the standard texts have sometimes been granted the sort of respect that is normally reserved for superior judgments, especially if the author of the text (inconvenient for the author, but convenient for the court) happens to be dead. It is a short step from this to the point where judges gild their speeches with the authority of dead poets and playwrights—Shakespeare, for example.
John Curtis does not consider the appeal to authority to be a form of special logic. It is not about logos, he says, but about pathos and ethos:
there is…something more than logic and emotions here that is the ethos of the judgment: a cerebral, intellectual association that invites us to agree with the judgment because Shakespeare is quoted—along with an American President and the Oxford English Dictionary.
Is the appeal to literary authority a special form of lawyer’s logic or is it offered as a sign of the judge’s ethical make-up as a man or woman of classical education and humane sentiment? This, as a barrister might say, is a moot point.
So, is any harm done?
The answer may depend upon the nature of the author to whom allusion is made. John Curtis’s paper is based on a presentation he made on 29 November 2013 as part of the Sidelights on Shakespeare lecture series at University of Warwick. In that presentation, Mr Curtis observed that ‘in terms of literary references, the Courts may generally conclude: Shakespeare good, Dan Brown bad’. Perhaps Dan Brown isn’t sufficiently deceased to qualify as authority on a par with dead poets and the writers of legal treatises. Mr Curtis contrasted the positive reception afforded to Shakespearean allusion in the so-called ‘Twitter Joke Trial’, with the negative response to one High Court judge’s conceit of embedding a secret cipher into his judgment in a case concerning Dan Brown’s The Da Vinci Code. The offending judge, Mr Justice Peter Smith, protested that he did not see why a judgment ‘should not be a matter of fun’ (quoted on the BBC news website).
Mr Curtis informed his Sidelights on Shakespeare audience that the Court of Appeal upheld the judge’s decision, but that their lordships were dismissive of Smith J’s literary device. Like a tutor reviewing a student submission, Lord Justice Lloyd observed that Smith J’s judgment ‘is not easy to read or to understand’ and that the learned judge should perhaps have spent less time incorporating a coded message ‘on which nothing turns’ and more time on ‘the preparation, checking and revision of the judgment’.
The whole episode is
somewhat
reminiscent of an ancient dispute recorded in Tacitus. Tacitus reports
that the
people of Rome objected to the Emperor Nero’s propensity to
play the lyre and
to write poetry; the people asked: ‘[d]oes expert attention
to effeminate music
and songs contribute to justice, or does it make the knights who serve
as
judges give better verdicts?’. Tacitus posits this
unconvincing defence in the
mouths of Nero’s allies: they ask, ‘why should it
be degrading even for a judge
to listen with legitimate enjoyment to fine words?’ (Tacitus,
2008, xiv).
Enjoyment (or in Mr Justice Peter Smith’s term
‘fun’) is a very welcome aspect
of engagement with literature and the arts, and for students it is
essential,
but enjoyment should not be the primary aim of a judge or jurist when
it comes
to the business of applying and improving the law.
This is not to say that
‘expert
attention to … music and songs’ cannot
‘contribute to justice’ and cannot help
those ‘who serve as judges give better verdicts’. I
think it can make a
positive contribution, for example by improving aesthetic judgment and
cultivating empathy, but no such advantages are likely to flow from
mere formal
indulgence in literary allusion. The call for more humane
legal
discourse is not a call for judges to
decorate their speech with
literary allusions. I therefore take issue with the assumptions
underlying a
survey carried
out by an
academic who searched the leading legal databases for
instances of
judicial citation of
literature (Henderson, 2008) and, finding that
‘[l]ess than one-half of one percent of all appellate
opinions contains a
reference to a work of literature’, concluded that the law
and literature
movement has by that measure ‘failed to exert sufficient
influence on judges to
move from an unknowable tacit influence to a citation-rich explicit
one’. An
empiricist mindset has blinded this surveyor to the true aim of
law’s
engagement with literature, which is not to capture the literature, but
to
release the law. Leaving aside the surveyor’s problematically
narrow
definitions of ‘reference’ and
‘literature’, I disagree with his assumption
that increased judicial citation of literature would mark the success
of law
and literature scholarship. It would more likely indicate its failure.
There is
nothing pleasing about judgments gilded with inappropriate and possibly
insincere quotations from non-legal literature. The same can be said of
florid
and periphrastic advocacy. Aristotle forbade rhetoricians from
‘speaking
outside the subject’ before the dicasts because he considered
it ‘wrong to warp
the dicast’s feelings, to arouse him to anger, jealousy or
compassion, which
would be like making the rule crooked which one intended to
use’ (Aristotle,
2014). I would not go so far as to forbid literary allusion, but it
would be
better to have none than to have it as a mere formal embellishment to
speech.
We
should wonder whether literary allusions are applied to
judges’ statements and
advocates’ submissions as mere ornament. Are they there to
make a weak case
look stronger or perhaps to make a bad lawyer look better? These are
important
questions to ask, after all (to conclude, which seems appropriate, with
a quote
from Shakespeare):
The world is still deceived with ornament.
In law, what plea so tainted and corrupt
But, being seasoned with a gracious voice,
Obscures the show of evil?
The Merchant of Venice, Act 3 scene 2
References
Aristotle (2014) The
Art of Rhetoric 1354a, Available
online at http://rhetoric.eserver.org/aristotle/rhet1-1.html,
based on the translation by Rhys Roberts (Accessed 31 March 2014)
Henderson, M.T. ‘Citing
Fiction’ The
Green Bag: An Entertaining Journal of Law, 11(2),
Winter 2008,
pp. 171–85, Available at www.greenbag.org
Tacitus, C. (2008) The
Annals of Imperial Rome, Oxford:
Oxford University Press
[1] This
piece is adapted from a
transcript of: King Lear,
Twitter and the Da Vinci Code given
as part of
the Sidelights on Shakespeare lecture
series at
University
of Warwick on 29 November 2013.
The original presentation also
included
an analysis of Baigent and
Leigh v Random House
[2006] EWHC 719
(Ch) and on appeal [2007] EWCA Civ 247. In
that case, Mr Justice Peter Smith had used
a coded message in his judgment.
[2] Igor
Judge, served as Lord Chief
Justice of England and Wales from 1 October 2008 until 30 September
2013.
In this case, Lord Judge sat
with Mr
Justice Owen and Mr Justice Griffith Williams.
The judgment was delivered by
Lord Judge and represented the collective
decision.
[3] The
earlier Quarto text attributes
the speech to Albany.
[4] [2012]
EWHC 2157 (Admin).
[5]
For a recent
monograph on judicial diversity see: Rackley,
Erika. (2013). Women, Judging
and the Judiciary: From Difference to
Diversity. Abingdon, Oxon:
Routledge.
[6] Judgment at paragraph 12.
The
facts as set out here are drawn from the
judgment and press reports of the case.
[7] Judgment, paragraph 2.
[8] See, for example: http://www.theguardian.com/law/2012/jun/27/twitter-joke-appeal
[last accessed 28.02.2014]
[9] See, for example: http://edition.cnn.com/2012/07/27/world/europe/twitter-court-reaction.
[10] Judgment, paragraph 28.
[11] Judgment, paragraphs 29 and
37, referring to DPP v
Collins [2006] 1 WLR 308
(Divisional Court) and [2006] 1 WLR 2223 (House of
Lords).
[12] Judgment, paragraphs 33 and
34.
[13] See: http://www.telegraph.co.uk/technology/twitter/9432444/Twitter-joke-trial-authorities-akin-to-The-Stasi-says-Al-Murray.html. [last accessed 28 February 2014].