I am interested to know the similarirites and differences between these two fields. It seems that cases we have in law nowadays are very similar to the ‘dialectic’ method that Socrates, Plato and the original homeboys would use back in Greece. I am interested to study dialectic and am going to go back to rereading the classic texts of Plato’s Socrates and also Aristotle’s ‘Topics’. It just occured to me that the field of criminal law, seeming very similar, would hold some contemporary examples for me to study too. Thoughts?
Id also like book recomendations that cover either argumentation in criminal/law, rhetoric, oratory, eristis, any of that.
The trial process is an example of the socratic method in action. Also, most law school courses are taught via the socratic method. I mean, there’s plenty of literature out there that might serve your needs here, but maybe you might make the question more specific and we can have a whole nice conversation about it…
Perhaps, although Im unsure how to formulate myself at the moment as I dont yet know enough. Ive often read Plato’s Socrates and thought ‘How the F is he doing this!?’ ie he is doing something pretty simple I can tell but I cant quite pin it. I havent read any Soc’ in over a year or so and I have since trained my philosophical muscles to new heights so I am going to reread the Gorgias with my new nimble brain tissue and see what I come up with.
The Socratic method that has been incorporated into criminal law is used within an adversarial system, which means that although the general idea of its use (that the truth will manage to come out in the end) is still there, the primary goal of each party is to win (above all else, including the truth). The questioning party presents the evidence and crafts their questions in such a way as to either discredit the other party, or to be able to use the information against the other party (later on); and the responding party’s goal is to craft their answers in such a way as to prevent the questioning party from achieving their goal (and vice-versa when their turn comes). [The fact that the accused party sometimes agrees to (coerced into?) plea bargaining, does not mean that it willingly submits to the truth].
Within the adversarial system, the goal is not the same (to find one, common truth), per se, as it is, above all, to win. Everything being equal, that just might be case that the truth will come out in the end, but in the system that gives advantage to the party that has greater access to financial/staff/time resources the odds become skewed to one side.
In the traditional Socratic dialogues (the way I remember them anyway), both parties agree to one common goal–truth, so the party that follows the questioning is more willing and open-minded. Although Socrates sometimes comes across as an jerk in his questioning and one, at times, might get an impression that he’s just messing with people, in the end, I think that he really does have the ultimate truth in mind.
There are two elements to a judge’s decision- obiter dicta and the ratio decidendi. Obiter is ‘An opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding.’ (Answers.com) It’s often dialectical in style. However, judges devolve the decision itself in the ratio, which consists of ‘the principle or rule constituting the basis of a court decision.’ (lawyers.com) As far as precedent goes, the ratio is most important. Obiter can be cited, but as noted, it’s not binding.