“The thing speaks for itself.” Res Ipsa Loquitur is a standard legal term, one of the Latin standbys every lawyer holds in their back pocket. A rather vapid phrase, these three words often find themselves standing in for actual argument: When we are already persuaded, things speak for themselves; when we have no substantive argument, we say “just because.” Res Ipsa is in this sense the relative of the most brutal of William F. Buckley’s rhetorical putdowns: Ipse Dixit-ism, “It is because it is.”
I was reminded of the broader danger of Res Ipsa in a recent conversation with a brilliant young attorney. We were discussing politics, rhetoric, and the tendency of the left to expect that simply by stating things they will persuade. Example: “There is a massive income disparity in our nation.” A fact. But not an argument. For those who already believe it is a social and moral problem that there is a huge income disparity, the statement implies that political and legislative actions should therefore be taken. For that audience, Res Ipsa Loquitur. For everyone else not already persuaded, there is only a question mark. It is a classic problem of political communication; to return to WFB, who from his very first moments in the vanguard guided the conservative movement to its modern success: “The truth does not necessarily vanquish…The cause of truth must be championed, and it must be championed dynamically.”
Down with Res Ipsa, with Ipse Dixit.
As lawyers, though, we often fall back on these rhetorical feints — and with so many lawyers in politics it’s no wonder that the concept of “It speaks for itself” is so common. Law, as a discipline, is constantly in the practice of denying its rhetoricity; never quite comfortable with the fact (yes, fact) that law is ultimately, and only, about the process of persuasion. Constitutions and laws do not, actually “speak for themselves,” they require people to read them and interpret them. Cases are applied to situations; cases are also overturned. Judges and lawyers and politicians disagree.
If the law spoke for itself we would have nothing but 9-0 Supreme Court decisions.
But we don’t. The truism is not true; if it walks like a duck and quacks like a duck…it is not Res Ipsa that makes it a duck. It is argument. We have to be persuaded that the walk is like a duck’s walk; we have to be persuaded that the quack is a duck’s quack. Law all too often denies the process of persuasion and shoots to the conclusion, assuming the connections are already made.
“There is a massive income disparity in our nation” is, for the progressive left, a walking and quacking duck. But stating things, however often and emphatically, does not an argument make (see, e.g., Ed Schultz). As WFB said — truth does not necessarily vanquish. And getting away from the mentality that Things Speak For Themselves would be a great start.