The ethics of rhetoric

by Richard M. Weaver

There is little evidence to indicate that the defense understood the kind of case it was up against, though naturally this is said in a philosophical rather than a legal sense. After the questions of law were settled, its argument assumed the substance of a plea for the truth of evolution, which subject was not within the scope of the indictment. We have, for example, the statement of Mr. Hays already cited that the whole case of the defense depended on proving that evolution is a “reasonable scientific theory.” Of those who spoke for the defense, Mr. Dudley Field Malone seems to have had the poorest conception of the nature of the contest. I must cite further from his plea because it shows most clearly the trap from which the defense was never able to extricate itself. On the fifth day of the trial Mr. Malone was chosen to reply to Mr. Bryan, and in the course of his speech he made the following revealing utterance: “Your honor, there is a difference between theological and scientific men. Theology deals with something that is established and revealed; it seeks to gather material which they claim should not be changed. It is the Word of God and that cannot be changed; it is literal, it is not to be interpreted. That is the theological mind. It deals with theology. The scientific mind is a modern thing, your honor. I am not sure Galileo was the one who brought relief to the scientific mind; because, theretofore, Aristotle and Plato had reached their conclusions and processes, by metaphysical reasoning, because they had no telescope and no microscope.” The part of this passage which gives his case away is the distinction made at the end. Mr. Malone was asserting that Aristotle and Plato got no further than they did because they lacked the telescope and the microscope. To a slight extent perhaps Aristotle was what we would today call a “research scientist,” but the conclusions and processes arrived at by the metaphysical reasoning of the two are dialectical, and the test of a dialectical position is logic and not ocular visibility. At the risk of making Mr. Malone a scapegoat we must say that this is an abysmal confusion of two different kinds of inquiry which the Greeks were well cognizant of. But the same confusion, if it did not produce this trial, certainly helped to draw it out to its length of eight days. It is the assumption that human laws stand in wait upon what the scientists see in their telescopes and microscopes. But harking back to Professor Adler: facts are never determinative of dialectic in the sense presumed by this counsel.

Exactly the same confusion appeared in a rhetorical plea for truth which Mr. Malone made shortly later in the same speech. Then he said: “There is never a duel with truth. The truth always wins and we are not afraid of it. The truth is no coward. The truth does not need the law. The truth does not need the forces of government. The truth does not need Mr. Bryan. The truth is imperishable, eternal and immortal and needs no human agency to support it. We are ready to tell the truth as we understand it and we do not fear all the truth that they can present as facts.” It is instantly apparent that this presents truth in an ambiguous sense. Malone begins with the simplistic assumption that there is a “standard” truth, a kind of universal, objective, operative truth which it is heinous to oppose. That might be well enough if the meaning were highly generic, but before he is through this short passage he has equated truth with facts—the identical confusion which we noted in his utterance about Plato and Aristotle. Now since the truth which dialectic arrives at is not a truth of facts, this peroration either becomes irrelevant, or it lends itself to the other side, where, minus the concluding phrase, it could serve as a eulogium of dialectical truth.

Such was the dilemma by which the defense was impaled from the beginning. To some extent it appears even in the expert testimony. On the day preceding this speech by Malone, Professor Maynard Metcalf had presented testimony in court regarding the theory of evolution (this was on the fourth day of the trial; Judge Raulston did not make his ruling excluding such testimony until the sixth day) in which he made some statements which could have been of curious interest to the prosecution. They are effectually summarized in the following excerpt: “Evolution and the theories of evolution are fundamentally different things. The fact of evolution is a thing that is perfectly and absolutely clear.... The series of evidences is so convincing that I think it would be entirely impossible for any normal human being who was conversant with the phenomena to have even for a moment the least doubt even for the fact of evolution, but he might have tremendous doubts as to the truth of any hypothesis....”

We first notice here a clear recognition of the kinds of truth distinguished by Adler, with the “fact” of evolution belonging to the first order and theories of evolution belonging to the second. The second, which is referred to by the term “hypothesis,” consists of facts in an elaboration. We note furthermore that this scientist has called them fundamentally different things—so different that one is entitled to have not merely doubts but “tremendous doubts” about the second. Now let us imagine the dialecticians of the opposite side approaching him with the following. You have said, Professor Metcalf, that the fact of evolution and the various theories of evolution are two quite different things. You have also said that the theories of evolution are so debatable or questionable that you can conceive of much difference of opinion about them. Now if there is an order of knowledge above this order of theories, which order you admit to be somewhat speculative, a further order of knowledge which is philosophical or evaluative, is it not likely that there would be in this realm still more alternative positions, still more room for doubt or difference of opinion? And if all this is so, would you expect people to assent to a proposition of this order in the same way you expect them to assent to, say, the proposition that a monkey has vertebrae? And if you do make these admissions, can you any longer maintain that people of opposite views on the teaching of evolution are simply defiers of the truth? This is how the argument might have progressed had some Greek Darwin thrown Athens into an uproar; but this argument was, after all, in an American court of law.

It should now be apparent from these analyses that the defense was never able to meet the state’s case on dialectical grounds. Even if it had boldly accepted the contest on this level, it is difficult to see how it could have won, for the dialectic must probably have followed this course: First Proposition, All teaching of evolution is harmful. Counter Proposition, No teaching of evolution is harmful. Resolution, Some teaching of evolution is harmful. Now the resolution was exactly the position taken by the law, which was that some teaching of evolution (i.e., the teaching of it in state-supported schools) was an anti-social measure. Logically speaking, the proposition that “Some teaching of evolution is harmful,” does not exclude the proposition that “Some teaching of evolution is not harmful,” but there was the fact that the law permitted some teaching of evolution (e.g., the teaching of it in schools not supported by the public funds). In this situation there seemed nothing for the defense to do but stick by the second proposition and plead for that proposition rhetorically. So science entered the juridical arena and argued for the value of science. In this argument the chief topic was consequence. There was Malone’s statement that without the theory of evolution Burbank would not have been able to produce his results. There was Lipman’s statement that without an understanding of the theory of evolution the agricultural colleges could not carry on their work. There were the statements of Judd and Nelson that large areas of education depended upon a knowledge of evolution. There was the argument brought out by Professor Mather of Harvard: “When men are offered their choice between science, with its confident and unanimous acceptance of the evolutionary principle, on the one hand, and religion, with its necessary appeal to things unseen and improvable, on the other, they are much more likely to abandon religion than to abandon science. If such a choice is forced upon us, the churches will lose many of their best educated young people, the very ones upon whom they must depend for leadership in coming years.”

We noted at the beginning of this chapter that rhetoric deals with subjects at the point where they touch upon actuality or prudential conduct. Here the defense looks at the policy of teaching evolution and points to beneficial results. The argument then becomes: these important benefits imply an important beneficial cause. This is why we can say that the pleaders for science were forced into the non-scientific role of the rhetorician.

The prosecution incidentally also had an argument from consequences, although it was never employed directly. When Bryan maintained that the philosophy of evolution might lead to the same results as the philosophy of Nietzsche had led with Loeb and Leopold, he was opening a subject which could have supplied such an argument, say in the form of a concrete instance of moral beliefs weakened by someone’s having been indoctrinated with evolution. But there was really no need: as we have sought to show all along, the state had an immense strategic advantage in the fact that laws belong to the category of dialectical determinations, and it clung firmly to this advantage.

An irascible exchange which Darrow had with the judge gives an idea of the frustration which the defense felt at this stage. There had been an argument about the propriety of a cross-examination.

The Court: Colonel [Darrow], what is the purpose of cross-examination?

Mr. Darrow: The purpose of cross-examination is to be used on trial.