The Continuance of the Antirrhetic

Abstract

of the common law tradition borrow their argumentative (dialectical) structure and oratorical form from the theological genre of antirrhetici, namely discourses of denunciation directed at outsiders, heretics, iconoclasts and more anciently still against those who have harmed their kin.2 It would be argued further that there is a remarkable isomorphism between the specific rhetorical form of the antirrhetici, the antiportrait of the heretic or schismatic as being against God, against Nature and against Reason, and the antithetical forms of proof utilized in the early constitutional writings of common lawyers. Those that would resist the law or question the constitution in a polity which had been from the Act of Supremacy to the present day explicitly both ecclesiastical and temporal, spiritual and secular, were sacrilegious, unnatural and irrational if not always explicitly insane. The constitution, the community of doctrine and of law, had to be defended and indeed would define itself antirrhetically: the lex terrae was a law established against an outside peopled by strangers, foreigners, "aegyptians," hermaphrodites, "langobards" and other untouchables.3 Similarly, there were enemies within the constitution and against whose antiportrait the image of the upstanding legal subject could be projected: those that would question the law, scholars, historians, linguists, those that could not belong to the law, women in particular, those that wished an independent judgment or that vulgarly came too close to the Crown.4 In one sense, the above argument as to the antirrhetical character of legal writing and legal speech is unsurprising if not necessarily unremarkable. The art of forensic rhetoric was developed principally in adversarial or classically agonistic contexts. Its practices historically have been elaborated around commonplaces or argumentative topoi listed so as to confirm the familiar and confute opposing arguments. Its goal or end was to elicit an absolute judgment predicated upon or justified by proof of cause or of guilt that was