Rhetorical Authority in Athenian Democracy and the Chinese Legalism of Han Fei

Why do the rulers listen to the wild theories of the speech-makers, and bring destruction to the state and ruin to themselves? Because they do not distinguish clearly between public and private interests, do not examine the aptness of the words they hear, and do not make certain that punishments are meted out when they are deserved. ("The Five Vermin," 113)

—Han Fei (?289–233 B.C.E.)

Han Fei, quoted above, is one of the few early Chinese philosophers to address persuasion specifically and at length, and hence he provides a fine entry point into comparative questions of rhetorical authority and negotiation: Where does rhetorical authority lie? Does the role of the rhetor differ in democracies and authoritarian states? How does the institutional placement of power affect rhetoric and its theories? What are the possible relationships between the rhetor and the audience?

The assumption of a powerful rhetor depends on a common Western assumption of equality between the rhetor and the audience—equality in one of the many senses of the word, moral, civic, humanistic, spiritual, intellectual, and physical—as well as dominance of the rhetor's speech act over the audience and scene. This assumption is common with modernity and exists at other times, but it is not a universal assumption, and it is always a rhetorician's ideal. The nature of rhetoric and rhetorical theory, for most of the world through all of human time, is more complex. To examine alternative assumptions about power dynamics and the nature of political speech acts, I will be reading Han Fei (?289–233 B.C.E.), who offers Western rhetoricians a corrective to their limited emphasis. In theorizing a state ruled by law, he offers three models of speech act each based on a different rhetor/audience dynamic.¹

In considering where to place authority for action, I also am concerned with defining the relationship between speech and act within rhetorical situations. Defining an act as requiring intent and result (Lyon 1998, 3–8), I have often simply accepted Kenneth Burke's model of speech act. Burke argues that dramatism is the means by which speech acts can escape the conventional frame. By placing the act in a pentad along with agent, scene, agency, and purpose, Burke bypasses a narrow focus on the act (1969). In "Words as Deeds," Burke contrasts his dramatism with a conventional, scripted frame that he ascribes to J. L. Austin (1975, 160,164–65). While Burke's reading of Austin's How to Do Things with Words minimizes the play within his philosophy, in truth, much of what Austin defines as clear speech acts is formalized, ritualized speech acts, taking place within institutions. It is easy to grasp the conventional aspects of Austin's speech acts in his examples: "I find the accused guilty" is a clear instance of the institutional authority for action coinciding with the rhetor's intention (1975, 42–43). The judge's finding is not a persuasive act, but rather an institutional, conventional act in that the institution defines the speech act and the legal consequence or action inherent in the speaking. Dramatism, on the other hand, allows us to imagine the speech act as existing in the user's physiological experience of the present. The Burkean model is useful for its focus on the agent's purpose, situation, and motive (the factors that make him an agent). He uses the term "motive" to signify the complex tension between an agent making or moving the world and being made by the world. While Burke is heavy-handed in his reading of Austin's theory, his distinction gives us two models of authority for the speech act. Burke's sense of acts as making and moving the world is very different from Austin's conventional, scripted act. Han Fei's theory is more aligned with conventional, institutional placement of speech acts. Even so, there are complexities that will need nuance.

When Austin discusses speech acts such as "I bet" or "I do," it is easy to see speech as action authorized by institutions. In...