mesmerising cadence, the same simplicity of language, and the same
compelling narrative style” as his speech in 2004.
11
In giving directions to a traveller a person might also seek to persuade the
traveller in some way.
For example they may try to persuade them that the
place they seek is well worth seeing because it is picturesque, that it is not
worth seeing or that it is best approached by one available route rather than
another. In a similar way, some writing seeks to persuade the reader about
something. For example, one function of a judge’s giving reasons for a
decision is to convince readers that the decision was the best possible
decision in the circumstances. Failing this, the judge tries to convince readers
that
the decision was reasonably open and was made after proper
consideration of all arguments.
12
Persuasion is typically attempted by performing a mixture of the other two
functions. It involves an appeal to both reason and emotion. In the best case
these are integrated and combined to create maximum effect.
While both reason and emotion can be used there is a strong case that
persuasion should rest to some considerable extent on the quality of reasoning
in the text, especially in a judgment.
13
Common law jurisprudence views justice
to be fair and impartial as portrayed by the statue of the Greek goddess
Themis, a stern goddess of justice and order, standing above the Old Bailey
holding the scales of justice evenly balanced.
One good ground for this rests on the efficacy of reason. There are few things
as compelling as the cold and remorseless logic of a clear case. In this vein
Michael Kirby recommends writing in a “simple, straightforward and
‘magisterial’
14
style” which tends to have the greatest influence “because of the
clarity of [its] expression”.
15
Cardozo is even more emphatic in rejecting
rhetoric and exhorting reason. For him, a persuasive judgment “eschews
___________________
11
The quotations are from Alan Ramsey “Passionate words forge great
nations” Sydney Morning Herald 8-9 November 2009.
12
Gibbs (1993) p 501. Cook and others (2001) at p 365 claim that all
“legal writing aims at persuasion”.
13
On one view it may also depend on
the influence and standing of
the individual judge. For assessment of the influence of particular judges
see Klein and Morrisroe on judges of the US Court of Appeal (1999), Kirby
on Sir Frank Kitto (1999), Kirby on Sir Anthony Mason (1997), Kirby on
Justice Lionel Murphy (2003), Kirby on Sir Edward McTiernan (1990)
(1992), and Sundberg on Justice Lionel Muphy (1987). McCormick (1996)
assesses the academic influence of judges.
14
Weisberg (1982) p 49
15
Kirby (1990A) p 705
 |
 |
 |