so·cial con·tract[ˈsōSHəl kənˈtrakt, ˈkäntrakt]NOUN
In moral and political philosophy, the social contract is a theory or model that originated during the Age of Enlightenment and usually concerns the legitimacy of the authority of the state over the individual.[1] Social contract arguments typically are that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority (of the ruler, or to the decision of a majority) in exchange for protection of their remaining rights or maintenance of the social order.[2][3] The relation between natural and legal rights is often a topic of social contract theory. The term takes its name from The Social Contract (French: Du contrat social ou Principes du droit politique), a 1762 book by Jean-Jacques Rousseau that discussed this concept. Although the antecedents of social contract theory are found in antiquity, in Greek and Stoic philosophy and Roman and Canon Law, the heyday of the social contract was the mid-17th to early 19th centuries, when it emerged as the leading doctrine of political legitimacy.
The starting point for most social contract theories is an examination of the human condition absent of any political order (termed the "state of nature" by Thomas Hobbes).[4] In this condition, individuals' actions are bound only by their personal power and conscience. From this shared starting point, social contract theorists seek to demonstrate why rational individuals would voluntarily consent to give up their natural freedom to obtain the benefits of political order. Prominent 17th- and 18th-century theorists of the social contract and natural rights include Hugo Grotius (1625), Thomas Hobbes (1651), Samuel von Pufendorf (1673), John Locke (1689), Jean-Jacques Rousseau (1762) and Immanuel Kant (1797), each approaching the concept of political authority differently. Grotius posited that individual humans had natural rights. Thomas Hobbes famously said that in a "state of nature", human life would be "solitary, poor, nasty, brutish and short". In the absence of political order and law, everyone would have unlimited natural freedoms, including the "right to all things" and thus the freedom to plunder, rape and murder; there would be an endless "war of all against all" (bellum omnium contra omnes). To avoid this, free men contract with each other to establish political community (civil society) through a social contract in which they all gain security in return for subjecting themselves to an absolute sovereign, one man or an assembly of men. Though the sovereign's edicts may well be arbitrary and tyrannical, Hobbes saw absolute government as the only alternative to the terrifying anarchy of a state of nature. Hobbes asserted that humans consent to abdicate their rights in favor of the absolute authority of government (whether monarchical or parliamentary). Alternatively, Locke and Rousseau argued that we gain civil rights in return for accepting the obligation to respect and defend the rights of others, giving up some freedoms to do so.
The central assertion that social contract theory approaches is that law and political order are not natural, but human creations. The social contract and the political order it creates are simply the means towards an end—the benefit of the individuals involved—and legitimate only to the extent that they fulfill their part of the agreement. Hobbes argued that government is not a party to the original contract and citizens are not obligated to submit to the government when it is too weak to act effectively to suppress factionalism and civil unrest. According to other social contract theorists, when the government fails to secure their natural rights (Locke) or satisfy the best interests of society (called the "general will" by Rousseau), citizens can withdraw their obligation to obey or change the leadership through elections or other means including, when necessary, violence. Locke believed that natural rights were inalienable, and therefore the rule of God superseded government authority, while Rousseau believed that democracy (majority-rule) was the best way to ensure welfare while maintaining individual freedom under the rule of law. The Lockean concept of the social contract was invoked in the United States Declaration of Independence. Social contract theories were eclipsed in the 19th century in favor of utilitarianism, Hegelianism and Marxism; they were revived in the 20th century, notably in the form of a thought experiment by John Rawls.[5]
traditions[edit]
On the eve of the Feast of Corpus Christi, clergy bless Corpus Christi wreaths that are made of flowers.[7] Corpus Christi wreaths and bouquets are often "attached to flags and banners, to houses, and to the arches of green boughs that span the streets."[7] In Christian homes, these Corpus Christi wreaths are suspended on walls or displayed on doors and in windows.[7] Corpus Christi wreaths are also "put up in gardens, fields, and pastures, with a prayer for protection and blessing upon the growing harvest."[7]
Throughout Christendom, "the custom developed of carrying the Blessed Sacrament in a splendid procession through the town after the Mass on Corpus Christi Day."[7] The monstrance which holds the host is surrounded by a Corpus Christi wreath of flowers.[7] During the procession, church bells are rung and "the faithful kneel in front of their homes to adore the Eucharistic Lord."[7] Along the route in which the procession occurs, Christian homes "are decorated with little birch trees and green boughs", with candles being lit in the windows.[7] Oftentimes, stops are made at various points called "stations" during the procession and "the Blessed Sacrament is put on an altar table" while a Gospel passage is read and hymns are sung, along with prayer being made.[7]
Corpus Christi is a public holiday in some countries with a predominantly Catholic population including, among others, Argentina, Austria, Bolivia, parts of Bosnia and Herzegovina, Brazil, Colombia, Croatia, Dominican Republic, East Timor, Equatorial Guinea, parts of Germany, Grenada, Haiti, Jerusalem in Israel, Liechtenstein, Monaco, Paraguay, Peru, Poland, Portugal, parts of Puerto Rico, Saint Lucia, San Marino, Spain, parts of Switzerland, Trinidad and Tobago, parts of the United States, and Venezuela.[citation needed]
Introduction
The significance of this paper is in its identification of a supra-national legislative process, a priori to the legal system, contrived as rhetorical dialectic among great state orators, to the sometime detriment of members of society. This dialectic operates on people's juridical personalities, (1) namely, their ability to engage in the legal system and seek its remedies. The paper is even the more significant, as it deals with transnational legislative rhetoric beyond the control of the subject populations. Further, it revives a moribund field of scholarly rhetorical theory, formerly taught widely in the schools as epideictic oratory, but now used mainly at the transnational level. Also, the paper conducts a critical theoretical analysis of juridical personality, a concept masked by the apparent quality of the legal system. While society lauds the intelligence and subtlety of itse legal system as its mode of dispute resolution, it ignores discussion of whether the system is accessible.
The paper's objective is to critically examine this rhetorical process, to see how it might be structured. The concepts in this article are not new. Rather, their currency has fallen out of the education system, even although the state uses these techniques to great effect, to this day. This discussion tries to revive the importance of these hidden instruments of governance, to explain their effect on rights and the courts' jurisprudence.
Juridical personality is important in domestic law as well as in international law. It interacts with the meta-legal system of international law. Its operation could be observed in Germany's mass manufacture of concentration camp corpses, which came after the historically and politically intelligible preparation of what Arendt called the living corpses. (2) It was intelligible because it followed a plain logic of necessary and catastrophic movements. First was the destruction of the juridical person. (3) Then came the murder of the moral person. (4) Finally came the destruction of unique identity, the spontaneity through which a person might still call an action "mine". (5) It was a necessary and catastrophic process of reducing human persons to animal slavery, and this article investigates the necessity in that process. Only that human destruction beginning with obliteration of the juridical and moral personality could create this kind of systemic significance.
It was a three-part process of destruction. Annihilation of the juridical personality required the deprivation of all civil and political rights. It made some categories of person outside the law's protection, through denationalization, and consequently making individuals into outlaws. This meant that the concentration camp inmates were nonagents. They had no capacity for civil or criminal legal action. Mostly, these individuals were innocent. They were jailed only for who they were. Murder of the moral persons required incapacitation of their consciences' operation. For this, the concentration camps made death anonymous. This robbed death of its natural meaning as the conclusion of the fulfilled life. (6) This destruction of individuality began with the removal of all distinguishing characteristics, it continued by sadistic torture, and proceeded with systematic ruin of human bodies. It was calculated to destroy everyone's human dignity. (7) More than six million human beings died in Germany during NAZI times, but no one could ascertain how many juridical persons perished first.
Arendt's analysis shows catastrophic and irresistible movements against the interests of the people. Apparently, they were powerless to resist this process of regulation against human character, where people were punished and destroyed merely for acting according to their natural characters. Therefore, this article proposes to critically investigate the rhetoric associated with those catastrophic changes, referred to above. Argument is structured to pose the question as to how this apparently a priori system of law might be superadded onto the legal system. Since it is a priori to domestic law, and to an extent, extrinsic to the legal and legislative systems, a better term for it would be "meta-law", (8) for purposes of this paper's discussion. Therefore, this article's argument tries to prove that such a meta-law consists of a special kind of public oratorical rhetoric, comprised of special arrangements of rhetorical tropes. Directly relevant to this context, Quintilian called a trope the conversion of a word or phrase, from a proper sense to another kind of signification, noting that tropes were deployed in order to increase greatly a word or phrase's force or power. (9)
Introduction
The significance of this paper is in its identification of a supra-national legislative process, a priori to the legal system, contrived as rhetorical dialectic among great state orators, to the sometime detriment of members of society. This dialectic operates on people's juridical personalities, (1) namely, their ability to engage in the legal system and seek its remedies. The paper is even the more significant, as it deals with transnational legislative rhetoric beyond the control of the subject populations. Further, it revives a moribund field of scholarly rhetorical theory, formerly taught widely in the schools as epideictic oratory, but now used mainly at the transnational level. Also, the paper conducts a critical theoretical analysis of juridical personality, a concept masked by the apparent quality of the legal system. While society lauds the intelligence and subtlety of itse legal system as its mode of dispute resolution, it ignores discussion of whether the system is accessible.
The paper's objective is to critically examine this rhetorical process, to see how it might be structured. The concepts in this article are not new. Rather, their currency has fallen out of the education system, even although the state uses these techniques to great effect, to this day. This discussion tries to revive the importance of these hidden instruments of governance, to explain their effect on rights and the courts' jurisprudence.
Juridical personality is important in domestic law as well as in international law. It interacts with the meta-legal system of international law. Its operation could be observed in Germany's mass manufacture of concentration camp corpses, which came after the historically and politically intelligible preparation of what Arendt called the living corpses. (2) It was intelligible because it followed a plain logic of necessary and catastrophic movements. First was the destruction of the juridical person. (3) Then came the murder of the moral person. (4) Finally came the destruction of unique identity, the spontaneity through which a person might still call an action "mine". (5) It was a necessary and catastrophic process of reducing human persons to animal slavery, and this article investigates the necessity in that process. Only that human destruction beginning with obliteration of the juridical and moral personality could create this kind of systemic significance.
It was a three-part process of destruction. Annihilation of the juridical personality required the deprivation of all civil and political rights. It made some categories of person outside the law's protection, through denationalization, and consequently making individuals into outlaws. This meant that the concentration camp inmates were nonagents. They had no capacity for civil or criminal legal action. Mostly, these individuals were innocent. They were jailed only for who they were. Murder of the moral persons required incapacitation of their consciences' operation. For this, the concentration camps made death anonymous. This robbed death of its natural meaning as the conclusion of the fulfilled life. (6) This destruction of individuality began with the removal of all distinguishing characteristics, it continued by sadistic torture, and proceeded with systematic ruin of human bodies. It was calculated to destroy everyone's human dignity. (7) More than six million human beings died in Germany during NAZI times, but no one could ascertain how many juridical persons perished first.
Arendt's analysis shows catastrophic and irresistible movements against the interests of the people. Apparently, they were powerless to resist this process of regulation against human character, where people were punished and destroyed merely for acting according to their natural characters. Therefore, this article proposes to critically investigate the rhetoric associated with those catastrophic changes, referred to above. Argument is structured to pose the question as to how this apparently a priori system of law might be superadded onto the legal system. Since it is a priori to domestic law, and to an extent, extrinsic to the legal and legislative systems, a better term for it would be "meta-law", (8) for purposes of this paper's discussion. Therefore, this article's argument tries to prove that such a meta-law consists of a special kind of public oratorical rhetoric, comprised of special arrangements of rhetorical tropes. Directly relevant to this context, Quintilian called a trope the conversion of a word or phrase, from a proper sense to another kind of signification, noting that tropes were deployed in order to increase greatly a word or phrase's force or power. (9)
The paper's methodology arises from dialectic discourse between words of Bentham and words of Hart. Bentham's view was that laws were only either commands, prohibitions, or, permissions. Only as such, they were artefacts of the human will. (10) For Bentham, such artefacts excluded the subsistence of the natural law, (11) based as it was on natural kinship relations. However Hart rebutted this by noting that legislators must still be guided by natural and rational precepts, and they must use these natural laws with reason to critique the current law. (12) Thus, arguably, there is dialectic discourse between those who say law is merely commands, prohibitions or permissions, and those who say legal reasoning must be guided by natural law and reason. It is from this dialectic that the artefacts of the human will might arise. They may be unintended consequences of a rhetorical process. They might arise due to the rhetorical constriction of legal reasoning to mere commands, prohibitions or permissions. Thus, this article proposes an investigation into the kind of tropes giving rise to those catastrophic changes, as referred to above.
Argument begins with an introduction to the 2008 Australian High Court case law on slavery, as it apparently ignored grievances associated with the plaintiff s status. Then follows an examination of Gorgias' Encomium to Helen, (13) to see how epideictic rhetoric could veil catastrophic meta-law within publicly-acceptable procedural systems. Discussion follows through the arguments of later rhetorical scholars, to show how a rhetorical device might be used to trigger inevitable and necessary catastrophic shifts, beyond the resistance consequent on public cognisance. Argument proceeds by applying these well established, but rarely considered, rhetorical ideas to the legal doctrines surrounding juridical personality and slavery. This step is essential because juridical personality seems to be subject to court doctrine--taken and given apparently capriciously at any time, with serious and possibly unintended consequences. An examination of the nature of juridical personality will require a prior brief consideration of the nature of rights, duties, privileges and their correlates. This is based on the premise, discussed above, that the destruction of juridical personality is necessarily a priori to the systematic annihilation of rights.
The article will suggest that, with a natural devolution of juridical personality to the most reasoning and legally competent persons always in operation, the sovereign could simply alter the effluxion of this devolution, by application of epideictic rhetoric. For example, same-sex marriage, presented as the trope of "marriage equality", conferred juridical personality on a cohort of people by altering this sovereign process. This could control the group of juridical personalities, in the sovereign's sole interests. It tends to sustain the view that meta-law is an artefact of sovereign artifice, to control access to the courts, in the sovereign's sole interests.
Slavery
As discussed above, slavery is the end point of annihilating the juridical personality. In the 2008 Australian High Court case of R v Tang, (14) the High Court upheld Mr Tang's slavery conviction, based on a breach of the criminal statutory provision, (15) but declined to take on board the more expansive understanding of the 'powers attaching to the right of ownership' that the Australian Human Rights and Equal Opportunity Commission (HREOC) had put forward. The HREOC, as intervener, constructed its view of the law on slavery based heavily on the Kunarac Case. (16) It identified a non-exhaustive list of the 13 indicia of slavery that would infer a power attaching to a right of ownership had been exercised. At the head of that list was the partial or total destruction of the juridical personality of the victim. (17) However, since slavery was said to have been unknown to the English common law, (18) people with the status of a slave, or de facto slaves, could not benefit from manumission. (19) In this way, their de facto status of slavery was irremediable at common law.
The International Court for the Former Yugoslavia (ICTY) had heard some forced labour cases under the heading of enslavement. Enslavement came under Article 5(c) of the Statute of the Tribunal. (20) Forced labour also might be charged as a violation of the laws or customs of war under Article 3 or as a form of persecution pursuant to Article 5(h). (21) The ICTY carried out a detailed analysis of the required elements of enslavement in Prosecutor v Kunarac (22) The facts of that case were grounded on various acts of sexual abuse. The Court elaborated a definition of enslavement in Kunarac, then applied it in the forced labour case of Krnojelac. (23)
In Kunarac, the defendants were charged with enslavement for, among other things, detaining two girls in a house for many months and treating them as their personal property. The girls had to do all the housework and comply with all the defendants' sexual requirements. (24)
The question before the Trial Chamber was what was meant by enslavement as a crime against humanity under Article 5(c). The Trial Chamber reviewed the applicable laws. These included the Slavery Conventions, (25) the Forced Labour Convention, (26) the Nuremberg Charter, (27) decisions of the European Court of Human Rights, (28) including Van der Mussele, (29) and the works of the United Nations International Law Commission. (30) The Trial Chamber held that enslavement was a crime in customary international law, which consisted of the exercise of any, or all, of the powers ascribing to the right of ownership over a person, (31) for which property might be considered as a trope. The Trial Chamber decided that enslavement incorporated elements of forced labour and stated several factors as relevant. (32)
The Appeals Chamber confirmed the chief thesis of the Trial Chamber that the customary concept of slavery, which was defined in the 1926 Slavery Convention and referred to as chattel slavery, had developed further to include various new forms of slavery. Each of these was also based on the exercise of any or all of the powers attaching to the right of ownership, where a right is nothing more than a claim. This claim might be enforced in the court if the court were to ascribe sufficient juridical personality to the claimant. The Appeals Chamber held that in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there was certain destruction of the juridical personality. This destruction was greater in chattel slavery, but the differences were only of degree. The Appeals Chamber held that these new forms of slavery formed a part of enslavement as a Crime Against Humanity under the customary international law. (33)
The High Court of Australia ignored the argument based in international case law, slavery being unknown to the English common law. It only existed for the Court as a statutory crime. The differential status issues appeared to be non-justiciable. The fact that slavery existed exposed a paradox in the Court's methodology. Slavery must be partially non-justiciable, by virtue of the Courts' omitting to cognise people of abridged juridical personality. This failure of cognition arguably suggests an elision in the court's jurisdiction. The next section examines this kind of elision and some of its consequences.
A Priori or Meta-Law
Around the world, governments have been locking up enslaved victims of human trafficking as if they were the perpetrators of that heinous international crime. (34) The irony demands explanation. They could secure express public consent for this merely on the basis of the trope "turn back the boats". Arguably, this was at once catastrophic in its consequences, and at once ironic, while innocent people were either turned back into the wild seas, or jailed without judicial hearing for an indefinite time. It was a mass making of jailed innocent prey, without the victims' ability to move the court to exercise the public power in their interests. They were people with abridged juridical personality. Juridical personality is that unique form of personality known only to the law. Juridical means symbolic, (35) and Smith argued that society could confer juridical personality. (36) It is unclear how society could be moved to do this, or whether it was true.
Sometimes, juridical personality coincides with real human personality. Sometimes it does not. It is of central concern in international law because of the differential status of personalities in the laws of states, citizens and others. International instruments are reduced routinely to municipal law, using due and proper process. The resultant regulations are no doubt lawful. This process has its genesis in great kings speaking to each other, in the public domain, on matters of positioning by arms, with great power of oratorical voice. Such international instruments are thus the language of kings and queens as between themselves, and, therefore arguably within the field of the jus cogens in international law. (37) This could be illustrated as follows. The nature of the civilian procedure in the English Court of Chivalry arose in the 1631 case of Rea v Ramsay, (38) in which the Court of Chivalry convened to award a trial by duel. However, later the King stopped the fight. Foreshadowing a civilian procedure, Chief Justice Fineux was said to have told King Henry VIII that the jurisdiction of the Court of Chivalry belonged to the law of arms and war between kings, and therefore not to the law of England. (39) This suggests that sovereign international discourse cannot be justiciable in municipal courts. It is a jurisdictional elision, as municipal courts are unable to adjudicate matters of parties to international wars.
Many catastrophic laws have their narrative genesis in the jus cogens of international law. By way of illustration, emanating from the China warring states period, the Luxing chapter of the Shangshu, (40) dating from no later than the fourth century BCE, reported that Chi You created social disorder. This disorder spread throughout other lands to otherwise peaceful people, and thus, their kings had to learn how to control it. The barbarian Miao people were the first to respond to these international conditions. They controlled it before anyone else, by ignoring virtue and resorting to restraining people with cruel punishments. They created what they called the five oppressive penalties, and just called them the law. This simple effect of the calling of something the law arising from a purely rhetorical act, was thus a priori to law. In consequence of a mere process of naming, and in the face of outside public threats of disorder, they killed and slaughtered the innocent, excessively chopped off body parts, severed ears, conducted beatings and branding. The people's juridical personality was abridged by a rhetorical act of the state's rulers.
The Luxing chapter went on to say, by way of hymnal oratory, that the "god-on-high" took pity on the innocent people and created terror to put an end to the oppressive rulers, (41) inferring some kind of external invasion. This suggested an ethical maneuvre of some superadded sovereign power, somehow veiled by hymnal oratory from ordinary public perception. The next section discusses a basis of this kind of rhetorical maneuvre.
The Encomium of Helen
Rhetorical oratory delivers the three outcomes of pre-legal ethical deliberation: admonishment, exhortation and rebuke. (42) This section investigates the foundations of rhetorical meta-laws, by reviewing their appearance in the time of the sophist Gorgias, (43) during the axial age. (44) Gorgias made quite a lot of money in his work of instructing wealthy people of high status, in the arts of wisdom, by means of public debates and private instruction. (45) This indicated his instruction had perceived high value to the ruling classes, from which it might be inferred that his instruction was useful in ruling. The Encomium of Helen was his rhetorical exercise, apparently designed for didactic purposes. (46) It was the language of inherent excellences, different from hymn (47) and epainos (48) because an epainos was brief, but an encomium was developed artistically. (49) Thus, Gorgias' method was one of artifice.
In The Encomium to Helen, Helen was the most notorious woman of Greece. She abandoned her husband Menelaus to run away with Paris, Prince of Troy. The encomium explained it was wrong to apportion blame to Helen. After epitomising her birth and her marriage, it suggested four possible causes for why she went to Troy. They were: (a) mere chance by virtue of the gods; (b) excess of force; (c) persuasive oratory; or, (d) the exigencies of love. Each of these was overpowering and irresistible. If she were subjected to any of them, she would be blameless. Rather than praise Helen, the encomium defended her from criticism. Gorgias demonstrated that speech was too powerful a sovereign. It could either arouse or assuage fear, sorrow, pity or joy. (50) His method suggested such overwhelming force, that the audience could only agree Helen was a mere pawn in the events of her life.
However, the Encomium to Helen pursued a schema of truth. Its stated purpose was to use speech for constructing the truth. It advised against any action based on either contingent facts or opinion, (51) because speech could have the same bodily effect as drugs. Action followed inevitably and necessarily from belief. With a mastery of the art of rhetoric, the speaker could compel people to do anything he wanted. (52)
The encomium demonstrated that persuasion could be veiled as mere instruction or a demonstration to professionals of oratorical skill. Gorgias could captivate the learned, using their own professional discourses, (53) thereby minimising opposition to his veiled message. Their professional discourses gave him access to their systems of command, which he could interweave into his apparent truth.
The question arises as to how Gorgias could ground his rhetoric, sufficient to move the will of the audience physically, as might a law physically move an audience either to remove or confer juridical personality.
Gorgias' Epideictic Style
This section critically examines the techniques of Gorgias. Rhetoricians agreed that there were only three kinds of rhetoric. The first was the deliberative, about public affairs, or in general to persuade someone to do something or accept a point of view. Deliberative rhetoric would have a topic of either expediency or inexpediency, by means of exhortation or dehortation. Forensic rhetoric was where someone sought to defend or condemn someone's action. It had a subject of justice or injustice and was by means of accusation or defence. Epideictic rhetoric was also known as demonstrative, declamatory, panegyrical or ceremonial. It was the most ornate kind of oratory, concerned primarily with the present. (54) It tended to shade into the other two types. orators used epideictic rhetoric for the particular topics of honour and dishonour, achieved by means of praise and blame. (55) With these bases, the epideictic style could be used for either denunciation or promotion, or even the kind of "terror" calculated to put an end to oppressive rulers, as discussed above. It achieved these ends by dealing with virtues and vices, personal assets and achievements. (56)
A partial list of pairs of virtues and vices was: courage and cowardice; temperance and indulgence; justice and injustice; liberality and selfishness; prudence and rashness; gentleness and brutality; loyalty and disloyalty. (57) Other assets and achievements could be used. Examples could be physical attributes, external circumstances such as family background, education, economic status, political, social and religious affiliations, and friends; achievements, such as work achieved, services rendered, honours won, offices held, wise sayings and testimonials. (58) Epideictic rhetoric could thus be deployed to confer differential status, separating out those of such a status that they ought to be punished. It could be seen as the rhetoric of the ruler, because it suggested an inherent authority to confer or withdraw status. Those deploying epideictic rhetoric ornamented their oratory with references to the higher attributes, without requiring any reference to facts. Therefore, an artefact could arise where the epideictic rhetoric conflicted with the facts while being entirely plausible. This suggested conversion of a word, or phrase, from a proper sense to another kind of signification.
Epideictic rhetoric presented itself as a mere verbal artifice, an apparent contrivance of utterance in whatever discourse used, such as within the lawyers' or the physicians' discourses. (59) Considering it as the rhetor's contrived display of skill, the epideictic rhetor naturally demonstrated his skill before a learned audience, who alone felt qualified to assess his skill. The epideictic rhetor might advocate any position, however frivolous or however serious, just as long as he could parade his rhetorical skills. (60) He could hide his work behind a veil of skill demonstration. An example might be a King's discourse designed to demonstrate regal character while veiling a new policy announcement. The audience would enjoy the regal speech for its regalness, and not cognise its artefact of a new command policy.
The Gorgian rhetoric did not show existing things to the audience and did not need to ground its argument in the facts. (61) Because many underlying discourses might subsist, it opposed dogmatic adherence to one single discourse as the sole path to constructing the truth. Instead, it construed what was accepted as rational and transparent, underlying its efforts for persuasion. This allowed the rhetor to relate the presented virtues to whatever discourses people already accepted and used. (62) The rhetor might confer status, or lack of it, or even withdraw it, in an acceptable way to the audience, through the recognized protocols of a particular discourse being spoken. (63) For example, the rhetor proposing same-sex marriage would simply utter the human rights trope "marriage equality", conferring the status of marriage on same-sex couples. With an understanding of the various professional discourses, their rules and their protocols, the orator could ignore reality and persuade the most learned, by reference to the discourse of their own cultus. (64) With a masterful display of the cultic procedural rules, the epideictic rhetor could veil the force of any inferred command within apparent audience agreement.
In consequence of this, Gorgias could offer an ornamented epideictic oration, purporting to admonish the audience with relevant facets of honor and virtue, appealing to the propriety of the audience cultus without reference to facts, but veiling direct commands to them. Arguably, these commands would be artefacts of the epideictic methodology, and would precipitate action, which evidenced meta-law. Later, when the audience realised that they had been moved beyond their cognizance, and without their express consent, this would amount to a catastrophic manipulation of the human will by an external human will.
The next section considers these artefacts of epideictic methodology, to see how sovereign commands could be transmitted into the mass audience.
Necessary, Inevitable and Catastrophic
Rhetoric was the art of using language either to persuade or to influence others. It was the body of rules a speaker or writer had to follow for expression with maximal eloquence. This meant rhetoric was, on the one hand, the ability to create an event, and, on the other hand, a mandatory code requiring obedience. (65)
A rhetorical discourse had power to cause events. As examples, it could produce events of persuasion, of understanding, or of revelation. Rhetorical analysts attempted to account for these discourse events by identifying structures, patterns and figures constituting the rhetoric. However, there was a problematic and discontinuous relationship between the structures of tropes and the persuasion of rhetoric. (66) Description of the structure was inadequate to explain the cause of an event. The analyst could not ascertain which particular events a discourse had generated. Thus, rhetoric must have been a composite discourse of structure and event. (67) This suggested that the perception of any event inferred the prior and completed operation of some operative rhetorical structure, beyond the human consciousness. (68)
Kellner argued that, within rhetoric, there was an apparent absence of any identified nexus between superficial sentence structures and the innate fabric of the text, suggesting veiled transmission of information. This included the thought structure underlying the work (69) and suggested the text might subsist in the unconscious. However, tropes, in particular, had developed recognised and natural transforming powers, causing a rapid expansion in the field of rhetorical critique. This new cognition of trope-based critical strategies arose from the master tropes schema of renaissance rhetoric. (70) These were metaphor, metonymy, synecdoche, and irony. This four-trope system allowed so many ways of prioritizing the human experience that it deserved detailed attention. (71)
The four-trope series had a natural movement through a stable course. It was a natural series in a state of flux. There was movement from metaphor, as an a priori naming phase, to metonymy, the process of formalization within a cultus. Then there was a movement to the integrative synecdoche, where the audience assimilated the communicated information. Then there was a final audience awakening that all of these four methods were turns relative to each other, in sequence, and that the whole process had been ironic. (72) The entire process having been ironic, irony necessarily inferred prior and completed operation of the four-trope series.
The preceding suggests the tropes were the system by which the mind conceived the world through language. These four master tropes represented a sequential program with natural forces of propulsion. Thus, Vossius' statement was incorrect that the order of the tropes, as was conventional to thinkers among 17th-century rhetoricians, was due to their frequency of appearance. (73) It was this precise order of the four-trope system that was effective to exploit the mind's innate propensity for understanding by narrative structure. (74)
These successive changes seemed unrestrained, catastrophically abrupt, and their movements apparently discontinuous. This inferred an automatic, unconscious activity of the mind. (75) Catastrophic trope movement might be the primary indicium of the force of public persuasion, such as public acceptance of ironic policy outcomes. People might well be persuaded by this meta-law that a human being was not a juridical person.
Vico was one of the first arguing for four primary tropes, from which all the figures arose. (76) Vico had considered these tropes as representing the stages of consciousness on its automatic road to abstractness. (77) The tropes described relationships between phenomena in the experiential world. (78) The four master tropes were a movement from global, through analytic, then through synthetic processes. In this contextual frame, metaphor was holistic, metonymy dispersive, synecdoche integrative, and irony was reflective. (79) It suggested that an orator might make a general statement, a metaphor, and the audience themselves might consequently and necessarily synthesise an ironic outcome by reflection.
It was relevant to this proposition of over-determined audience response that, (80) in her study of the psychology of metaphor, Gertrude Buck (81) regarded metaphor as the necessary stage, through which speech must pass to arrive at literalism. She had concluded that only via the metaphor might abstract ideas manifest into existence as an abstract statement of fact. (82) Metaphor was identifiable as a necessary precondition to law, the creation of fact from ideas, and therefore was meta-law.
An epideictic orator could begin the process of government by speaking a powerful metaphor, based in honour and virtue, framed in the public cultus. A trope would always increase the power of the oratory. This metaphor might react with the population at unconscious levels, not entirely cognised until during the stages of synecdoche and metonymy. The public mind would turn, tropicly, through catastrophic shifts of reason, modelled by the four master tropes. This rotation would construct new meaning in the public mind. It would resonate in the public mind, by attribution, simulated and false phenomenological properties, which would feel like real events. The public would reflect then perceive these rhetorical events as facts. This oratory would stimulate the usual real bodily responses to those events, by signalling the bodies' senses. At last, the people might speak of a certain irony, in that outcomes were inconsistent with initial suggestions and expectations. However, by this time, the oratory would have controlled the audience's bodies, beyond their cognisance, as if by the orator's personal ownership. Irony would always signal that the 4-trope series was at the point of completion, and the orator would have exercised, merely by the meta-law within oration, a catastrophic power of ownership over physical human bodies. The signal of irony is arguably an artefact of metaphor used within epideictic discourse.
This suggested the possibility of people accruing duties, without express agreement, and without accruing correlated rights, via some application of meta-law. Possibly, these duties were just called "non-legal", but were strictly enforced administratively. The next section considers the nature of the relationship between rights and duties, to see what effect on it epideictic rhetoric might have.
Rights, liabilities, duties, privileges and liberties
Just as the relationship between a word and its meaning is arbitrary, (83) there has been a continuing tendency to confuse legal and non-legal ideas. Often, there was a catastrophic swing from one to the other. Some ideas were arbitrarily designated as "non-legal". Not only lay persons, but also judges sometimes tended to confuse legal and non-legal ideas. Also, an uttered term could blend these two senses, conveying uncertain meaning. (84) This section investigates the Correlativity Axiom of Hohfeld and shows how it failed, whenever epideictic rhetoric was directed at the issue. This fundamental axiom was that every right correlated with a duty. Stated another way, the existence of a right necessarily entailed the existence of a duty, and vice versa. (85) Duties without rights, coinciding in the same person, would be suggestive of enslavement.
Rights were illustrated in the 1895 case of Wilson v Ward Lumber Co., (86) in which the court held that the commonly used meaning of the term "property" signified any external object over which someone exercised the right of property. Thus, property was metonymy, indicating that the mention of property meant effluxion of the four-trope series had already begun. This wide term included every kind of acquisition, over which a man might own or maintain an interest. (87) Professor Jeremiah Smith, when he was Mr. Justice Smith, stated in Eaton v B. C. & M. R. R. Co. (88) that, strictly, land was not property, but rather, the subject of property. The term "property" meant only the owner's rights in relation to it. It signified a right over a particular thing. Property was any person's right to possess, enjoy, use, and dispose of a thing.
Because fundamental legal relations were sui generis, attempts at definition would fail. (89) Hohfeld argued this problem away by saying it was better to describe the various relationships from a tabulation of opposites and correlatives, as follows. Jural opposites were: rights and no-rights; privilege and duty; power and disability; immunity and liability. Jural Correlatives were: right and duty; privilege and no-right; power and liability; immunity and disability. (90) There has been a sustained critique of Hohfeld's schema, including the proposition that all eight concepts could be reduced to right and duty. (91) Also, there was an old doctrine of damnum absque injuria, appearing to make Hohfeld's axiom far less axiomatic. The doctrine of damnum absque injuria explained that som
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