Language – Sophistry

The term “sophistry” is defined in the Macquarie Dictionary as “a subtle, tricky, specious, but generally fallacious method of reasoning” and “a false argument; sophism”.

In the Cambridge Dictionary the term is defined as “the clever use of arguments that seem true but are really false, in order to deceive people”.

A sophist was a teacher in ancient Greek in the 4^th and 5^th Centuries BC. Sophists generally specialised in one or more subject areas, such as philosophy, rhetoric, music, athletics and mathematics. They taught “arete”, “virtue” or “excellence”, predominantly to young statesmen and nobility.

Due to the importance of such skills in the litigious social life of Athens, sophists often commanded very high fees. Further, they engaged in the practice of questioning the existence and roles of traditional deities, and became targets for criticism. Such criticism, coupled with the wealth garnered by many sophist practitioners, eventually led to popular resentment against sophists and the ideas and writings associated with sophism.

For further reading see Internet Encyclopedia of Philosophy – “The Sophists Ancient Greek” – https://iep.utm.edu/sophists/.

The following are instances of the language being used in jurisprudence:

In Re Wakim; ex parte McNally & Anor (1999) 198 CLR 511 at [229]:

In my view, the cross-vesting legislation is more in keeping with the operation of Ch III, properly understood, than the rigid construction of the Constitution which would strike down the legislation as constitutionally impermissible and turn to judicial invention and sophistry to overcome the problems which are thereby created. The second basic argument for the challenges which are thereby created.

In Brott v Legal Services Commissioner [2009] VSCA 55 at [17]:

When the passages from the Tribunal’s reasons relied upon by the applicant are read in light of the matters I have set out, in my view it is clear that the Tribunal did not find that, when he wrote the letter, the applicant knew it was false, but believed that the rationalisation supplied by Mr Sandbach enabled him to play with words by not making full disclosure of the facts he knew. As the Tribunal said, the applicant knew the relevant facts and placed his faith in casuistical reasoning. The applicant knew the reasoning said to justify the letter was sophistry but believed the reasoning constituted a justification for the letter.

In Ali v Minister of Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 at [101]:

That submission involves a not insignificant degree of sophistry and an attempted reconstruction of the Assistant Minister’s actual reasons. It should be rejected. In this case the appellant’s partner’s visa had been cancelled and he had advanced …. The potential breach of Australia’s non-refoulement obligations if the cancellation were not revoked.