Ethos, Character, and Discoursal Self in Persuasive Legal Writing
The Journal of the Legal Writing Institute, Vol. 21 (2016)
45 Pages Posted: 18 Jan 2017
Date Written: January 18, 2017
This article examines the concept of ethos and its application in contemporary persuasive legal writing. In particular, the article looks at a dichotomy in the concept of ethos that dates back to its origins in classical Greek rhetoric - a dichotomy between possession and appearance. Aristotle regarded ethos as persuasion by means of one’s character, one of the three available artistic means of persuasion. The question is whether one needs to actually possess the character traits that would make the speaker or writer seem persuasive. For one of Aristotle’s rhetorical predecessors, Isocrates, the answer was yes; one would need to actually possess those character traits. But in his Rhetoric, Aristotle indicates that the character traits are more an artifact of the speech (or writing), a matter of it appearing that the speaker or writer possessed those traits.
After discussing this dichotomy in classical rhetoric, the article turns to its persistence in discussions of contemporary legal persuasion. The article then offers the concept of the discoursal self as one way of addressing the dichotomy, using selected judicial writings by two Supreme Court justices to illustrate how ethos-as-discoursal-self might work.
Keywords: ethos, character, persuasive writing, legal rhetoric, Aristotle, Isocrates
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