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Using Stasis Theory to identify legal arguments

Stasis theory is the process of initially discovering the main issues in an argument, and secondly, identifying the arguments that you can raise to counter those issues.

Stasis is the foundation of invention – of identifying the arguments that may be made in a case. Hermagoras of Temnos, the Greek rhetorician, discovered and classified four key divisions of stasis, and believed that all legal arguments will tend to fall into one of the following four categories or issues.

  1. Issues of conjecture-Did the person do the act complained of? ie “did X actually kill Y?” According to the ancient rhetoricians, as part of the process of identifying the issues, you should ask yourself questions relating to the specific fact or issue at hand (past, present, future). Always question cause or effect. Did it actually happen? When did it happen? Where did it happen? Why? How? How solid is the evidence in support? Is there doubt?
  2. Issues of definition – These issues focus on whether or not an action that was admitted falls under the legal umbrella of an actual crime, or constitutes an actual breach of civil law, for example “Does what has occurred meet the legal definition of murder or manslaughter?” In such cases, the advice of the ancient rhetoricians was to:(I) Identify what type of issue or offence your case is concerned with. What is it? What is it called? What category is it in?(ii) ask questions about the legal definitions that may apply to the facts. (iii) Question similarity and differences between different potentially applicable definitions.
  3. Issues of justification-In these cases, the act is admitted but the person concerned or their advocate believes it can be justified in some way, and there is a defence that can be raised. In these cases, the issue concerns the quality of the action, along with the motivation and justification, if one exists. Ie “is there an arguable defence that can potentially justify what has taken place?”
  4. Issues of forum or jurisdiction. In these cases the key issue is one of where the case should be heard “Should this case be heard in this court or a different court or tribunal?” For example, in the James Bulger murder trial, a key initial issue was whether the defendants should be tried in a youth court or an adult court.

Almost all cases can be categorised as either issues of conjecture, issues of definition, issues of justification and/or issues of forum or jurisdiction, and thinking about which definition applies to a specific case should help advocates identify further legal arguments that may be made. Stasis theory was developed by the Ancient Greeks, like Aristotle, to help advocates develop tools of reasoning that they could use when representing defendants in criminal cases in particular. However, it also provides a useful framework for thinking about cases generally, and also provides a clear structure for writing out legal arguments. Stasis theory is known as a topic of invention; this doesn’t mean you make up your legal arguments but instead refers you to the process of identifying what legal arguments and counter-arguments you can usefully identify and make. It is also a process that you can use to really get a handle on what the case is about.

Cicero argued that all material for either the prosecution or the defence is drawn from the attributes of persons and actions

Cicero argued that all material for either the prosecution or the defence is drawn from the attributes of persons and actions, which Cicero breaks into the following eight categories. Cicero believed that you should aim to establish all of the following elements as part of the process of building either your prosecution or defence. It is also applicable to civil cases.

  1. A person’s nature, which includes sex, race, place of birth, family, age, and advantages and disadvantages of mind and body.
  2. A person’s Manner of life refers to a person's occupation, rearing, teachers, friends, and character of home life.
  3. Fortune includes one's wealth and status, whereas "habit" refers to a particular ac­quired ability of mind or body.
  4. Feeling can be described as one's emotional or mental state.
  5. Purpose means a person's plan to do or not to do the act in question. What were they looking to achieve?
  6. Achievements covers what the person concerned has similarly done in the past, present and likely to do again in the future. For example, in a rape case, has the person been found guilty of rape previously, or do they have a history of harassing women? Has this pattern of harrassment shown an increase in either severity or scale?
  7. Accidents – has the person concerned been involved, even if only on a peripheral basis, with other similar claims? Or have they suffered some misfortune that can help explain what they did or didn’t do?
  8. Speech – what has the person said previously about that particular offence or issue? Is it possible to work out their attitude towards, for example, women by things they have said publicly, and if these comments demonstrated an abusive attitude towards women, how could the defence and prosecution use those remarks in a rape trial?

Cicero also offers four divisions, or points to consider, in relation to the attributes of actions. He suggests that when an advocate is assessing the actus reus, the advocate should consider the place where the guilty act took place, the time, occasion, manner, and facilities surrounding the crime.

There is an excellent article called "Back in the Courtroom Again: Ciceronian Stasis Theory as a Method of Critical Thinking", written by Colleen Anderson, showing how you can apply Ciceronian stasis theory to actual legal cases. This article is well worth reading and it is available pdfhere. In this article, the author applies stasis theory to the Mike Tyson rape trial and also the rape trial of William Kennedy Smith, and applies Cicero’s attributes of actions and people to the issues.

Another benefit for advocates in thinking about the characteristics and actions of the people they are representing is that it helps to build up a picture of who the person is, what they have done, and what the issues are in this case. These descriptors can then be used when laying out the statement of facts.

For example, in Creighton v Townsend [1816], Phillips, who was being led by Curran, sets out his statement of facts by considering and describing Mr Creighton’s nature, manner of life, fortune and feeling as follows:

“It is now about five-.and-twenty years since the plaintiff, Mr Creighton, commenced business as a slate merchant, in the city of Dublin. His vocation was humble, it is true, but it was nevertheless honest, and though, unlike his opponent, the heights of ambition lay not before him, the path of respectability did---he approved himself a good man, and a respectable citizen. Arrived at the age of manhood, he sought not the gratification of its natural desires by adultery or seduction, For him the home of honesty was sacred; for him the poor man's child was unassailed. No domestic desolation marred his enjoyment; no anniversary of woe marred his achievements. From his own sphere of life naturally and honourably he selected a companion who beauty blessed his bed, and whose virtues consecrated his dwelling. Eleven lovely children blessed their union, the darlings of their heart, the delight' of their evenings; and, as they blindly anticipated, the prop and solace of their approaching age.”

 Stasis theory not only helps advocates to find the root of any issue, but it also helps them to compose fact based and concise statement of facts and helps them paint pictures with words.

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