辩论 VS 法庭陈词
What’s the difference?
What is debate?
何谓辩论？ According to the Oxford English Dictionary, debate is “a formal discussion on a particular matter in a public meeting or legislative assembly, in which opposing arguments are put forward and which usually ends with a vote.” A debate is often conducted with a moderator and an audience, in addition to the debate participants.
根据牛津英语词典，辩论是“针对某一项课题在公开会议或者立法会上，提出反对的论点，通常以投票结束。”除了参与辩论的辩手之外，辩论通常还有主持人与观众。 Logical consistency, factual accuracy and some degree of emotional appeal to the audience are elements in debating. A debate can be in the form of formal direct oral contest or competition in argumentation between two or more people on a defined proposition at a specific time. Overall, debates are very common in social, political, and educational environments and the topics addressed in a debate can be virtually anything.
What is submission in court?
何谓法庭陈词？ Submission in court on the other hand, involves adducing evidence, cross examination, presentation of written submission. The court proceedings of submissions in lower courts are different from the submissions in higher courts to certain extend.
另一方面，在法庭上陈词，包含了提供政局、盘问、提交书面陈述。低级法院的诉讼程序与上级法院的所送程序有一定的不同。 A trial conducted in the lower courts, such as the magistrate courts or the sessions courts, judges (in some countries, trials may be listened by juries) have to decide which facts are true based on the evidence adduced and apply the law which the facts of the case can fit in.
在如推事庭或者地方法院的低级法院的审讯中，法官（在某些国家、审判可能也有陪审团旁听）必须根据锁具出的证据来决定哪些事实是真实的，并且决定引用符合该事实的法律。 In a hearing in higher Court, the judges are focused solely on the application of the law to the founded facts. The analyse of problems, research of relevant law and presentation of arguments are what will be showing in higher court hearings. Usually, there will be a question of law for a case to be heard in higher Courts.
Competitive debate is presented in front of public.
竞技辩论时呈现在大众前的。 Audience of debate are from all walks of lives. One of the qualities of well-trained debaters is to ‘win’ the attention and applause of audience. Sometimes, the debate judges do not have any debate experience, they are appointed as debate judges because the competition organizer wants the debaters to be able to convince not only other debaters but also an ordinary person. Therefore, when your arguments are too profound, it might confuse the audience. Therefore, the debaters are trained to pick the audience-friendly arguments over those very strong points.
辩手的听众一半来自各行各业。训练有素的辩手的素质之一就是“赢得”观众的关注和掌声。优势，辩论裁判没有任何辩论经验，却也被任命为辩论裁判，因为比赛组织者希望辩手不仅能说服其他辩手，而且能够说服普通人。因此，当你的论点过于难以理解时，听众粪坑额嗯会感到困惑。因此，辩手在训练时会选择那些对观众有好的论点。 Not only the arguments are audience-friendly, they will also pay attention to the way of developing their speech so that it enables the audience to follow them. The debaters do not care whether their arguments are irrefutable or not, they want the effect of deep impression from the audience. Debaters are all very good speakers, as they know how to write their speech to make it more attractive and to ensure the emotional participation of audience.
Submission in court is heard by judges or juries.
法庭陈词是由法官与陪审团聆听的 unlike the debate audience, the background of judges and juries are less diverse. Judges are from legal backgrounds while even if the juries are chosen from the public, they would have undergone specific trainings before they are fit to sit in the trial where a judge will be there to assist them in the application of laws.
与辩论的观众不同，法官与陪审团的背景并不多样化。法官具备法律背景，而即便是陪审团是从公众选出的，他们在参与审判前也会接受特定的培训，法官将在那里协助他们理解及套用法律。 What causes a ‘win’ in debate, is very different from a ‘win’ with a trial judge or jury. There is no point or need for fancy speeches as the judges are most definitely more experienced, no emotions can be involved when passing a judgement. The counsel, in contrast to the debaters, have to choose their arguments carefully and use facts which will assist their case, emphasizing reasons and evidence as the ‘logos’ of argumentation.
辩论中的‘胜利’和在主审法官与陪审团前的‘胜利“是截然不同的。没有必要也不需要花哨的演讲，因为评委绝对更有经验，再通过判断时不能涉及情绪。与辩手相反，律师必须仔细选择他们的论点，并将论点套在他们的案件的事实上，强调理由和证据作为论证的”标志“。 Unlike the debate, the courts are bound by higher court judgments. Whereby judges in lower courts are not allowed to overrule the judgments/ decisions made by the courts above, thus they are required to make decisions established by previous case laws. Even if they personally do not agree with the grounds of the said decision. In court submissions, what a judge think is not that important, the counsel’s duty is to tell the judges how to give the judgment based on the law and the precedents.
Debate is marked by points.
辩论是根据分数评分的。 Most of the debaters have rapid-fire speaking skill, they are trained to speak in a hyperventilating style in order to put in as many points as possible. It is because they think that the more arguments they raise, the more marks they gain. And this is true in competitive debate because when they break their arguments into pieces, they can simply drop out one when they notice that it does not do much for their tactic.
大多数辩手都有快速的演讲技巧，他们被训练以过度换气的方式说话，以便尽可能更多表达观点。这是因为他们认为，他们提出的论点约到，分数就越多。这在竞争性的辩论中是正确的，因为当他们将自己的论点分解成碎片时，当他们注意到这对他们的策略没有太大作用时，他们可以简单地放弃。 Debaters never expect to carry all of their arguments to conclusion. Instead, they “spread” out their opponents by offering a large quantity of arguments and then selecting just a few toward the end depend on how their adversary responds. This allows a bigger flexibility for them to change their tactic in the middle of debate. Also, it will not cause great harm to them as it does not affect the completion of their debating and the audience might not even notice it, at least an untrained audience won’t.
辩论者不期望他们所有论点都有结论。相反，衙门通过提供大量论点来‘散布‘他们的对手，然后根据对手地反应再最后选择几个。这位他们再辩论中改变策略提供更大地灵活性。而且，这不会对他们造成太大地伤害，因为他不影响他们辩论的完成，观众甚至不会注意到，至少未经训练地观众不会。 Part of the reasons why they do so is the rules of competitive debate. Often, the debaters are timed when they speak so they sometimes do not manage to finish their arguments when time is up. Hence, to include more points within the same time limit given is also an important skill for debaters.
他们这样做的部分原因是由于竞争性辩论的规则。通常，辩手说话的时间是计时的，所以他们有时无法在时间到的时候完成他们的论点。因此，在既定的相同时限内包含更多的论点也是辩手的重要技能。 Debate training tend to set aside the truth, to give way to a more complete and safer strategy. If that is the goal, then a bad argument can be just as useful as a good one. As what is stated above, debate is like a show to the public hence no one will question the truth of your speech. As long as the thing is not too ridiculous until people can notice it without hesitation, then it is fine. Even though doubt can be raised by the opponent, the debaters are not required to prove to them all with evidence.
No marking criteria for court submission.
法庭陈词没有评分标准。 Debate experienced attorneys, Fulkerson and Lots note that trial lawyers whom were previously debaters were often told at some point to slow down their speech and to adapt to their audience. As clarity of one’s argument is more important in a lawyer’s submission. A lawyer has to ensure that the judges or jury are with them and that they are clear with whatever arguments they raise.
辩论经验丰富的律师，福尔科森和罗兹指出，以前担任辩手地出庭律师经常被告知在某个时段应该放缓他们演讲的速度以让听众可以适应。因为在律师地陈述中，一个人地论点的清晰性更为重要。律师必须确保法官或陪审团与他们同在，并且他们对他们提出的任何论点都清楚。 There is no need to include bundle of points as quality beats quantity in submission in court. This means that a case with just two strong arguments may well be better than a case with three strong arguments along with two weak ones. The judges do not need a lot of arguments which are irrelevant or insignificant to the case, they only need one point which is decisive and clearly tells them what approach should address to the issues of the case.
法庭陈词中，质量胜于数量，一次必须要包一堆没有必要的论点。这意味着只有两个强论点的案例可能比起三个强论点和两个弱论点的案例来得好。法官不需要太多与案件无关或无关紧要的论据，他们只需要一个具有决定性的论点，并清除地告诉他们应该以何种方式解决案件问题。 Every argument made in court takes a toll on the counsel’s persuasive target’s attention, recollection and attitude. The author of “In the trial advocacy world” noted, “Very low probability arguments are invariably cast aside for the more bread and butter discussions that are central to a case.”. The lawyers have the same need to be selective, but unlike the debaters, they must make the most important choices before, rather than during the trial.
在法庭上所提出的每个论点都会影响律师说服目标的注意力，会议或态度。《In the Trial Advocacy World》一书中作者指出，“极低概率地论点总是被搁置，以更重要地面包和牛油来替代”。律师同样需要选择，但与辩手不同的是，他们必须在审判前而不是审判期间做出最重要的选择。 In the court, “evidence” is very important. The counsel can only raise facts which they can prove. The judges can and often ask for evidence for statements of the counsel and if they fail to prove to the court, it will be struck out. Therefore, when preparing for court submission, the counsel not only have to think of the arguments but also how to prove to the court by adducing relevant evidence.
Debate Happens between debaters only.
辩论只发生在辩手之间。 In competitive debate, the judges cannot question the debaters. The rules of debates are designed to let the debaters to have full control of the situation. This is regarded fair as both parties have the same opportunities to speak, question and rebut. It is totally up to the debaters what questions they want to ask, what arguments they want to put forward and so on.
在竞技辩论中，裁判不能质疑辩手。辩论规则旨在让辩手完全掌握局势。这被认为是公平地，因为双方都有同样的机会发言、质疑和反驳。这完全取决于辩论者他们想提出什么问题，他们想要提出什么论点。 The participation of judges or third party in a competitive debate might affect their performance. The third-party statement might not be neutral, he/she might be supporter of either side and even the question from a judge can be helping one side to develop their point out of kindness. Thus, the questions from third parties are not allowed in a competitive debate.
裁判或第三方介入可能会影响他们的表现。第三方的陈述可能不是中立的，他、她可能是任何一方的支持者，甚至裁判的问题都可能是为了出于帮助一方发展自己观点的善意而提出的。因此，在竞技辩论中不允许第三方问题。 The judges and audience can only listen to the debater’s speech and if one team is obviously not as good as its opponents, then they can probably be led by their opponents to issues that are not favoring their side and have no chance to develop their good points. While in debate, this happens all the time especially when the debaters are lack of experience. Debaters can simply lose the competition because they fail to address their arguments properly in the debate and the audience and judges do not have access to their arguments in advance or at any point during and after the debate, so their performance during the debate is everything.
Judges can question the lawyers in court submission.
法官可以在陈词中向律师提问 The character of judges in court are different with those in debate, Judge Marvin E. Frankel described the traditional conception of judge’s role as “the neutral, impartial, clam, noncontentious umpire standing between the adversary parties, seeing that they observe the rules of the adversary game.”
法庭上的法官和辩论的裁判性格不同。Jugde Marvin E.Frakel 将法官角色的传统概念描述为“中立，公正、沉默、无争议的裁判站在敌对双方之间，因为他们遵守对抗性游戏的规则。 The purpose of having judges involve in the trial is to assure the justice during every stage of the litigation, therefore their power to ask the counsel question is important in order to promote their judicial role. They are not only engaged in the hearings; they will have to urge the counsel to get their work done properly before the trial. Judges would have already read the submissions by both parties in word form before the trial started so that they can make sure themselves to be fully understood to the case. Nothing surprising should be taking place during the trials.
让法官擦浴审判的目的是确保诉讼的每个阶段都公正，因此他们向律师提问的权力对于提高他们司法作用来说十分重要。他们不仅要参与聆讯；他们将不得不敦促律师在审判前妥善完成工作。法官在开庭前就已经阅读双方书面陈述，以确保自己完全了解案件。审判期间不应发生让人惊讶的事情。 It is important for judges to ensure that the controversies will be litigated in a manner appropriate to what is truly at issue and as justly and speedily as possible. Hearing in court is not an easy task, the judge must be fair and dig into underdeveloped arguments and the facts that are hidden behind by the counsel’s tactical roadblocks at the same time.
结语 The differences between debates and submission in court are mostly the difference in purpose. Debates are usually used to train students’ speaking skills, shape the way they think and learn the arts of convincing. There is no right or wrong.
辩论和法庭上的而陈述最重要的差异在于目的的不同。辩论通常用于训练学生的口语技巧，塑造他们的思维方式并学习说服的艺术。没有对或错的差别。 However, in court submission, the role of the judiciary is to ascertain and decide both public and private rights, to administer justice, to punish crimes and to protect the innocent from injury and usurpation. The judges, to urge this goal, will have to do a lot more compared with a debate judge. They need to be equipped with sufficient legal knowledge which enables them to apply facts to legal rules and interpret those as best as they can.
然而，在法庭陈述中，司法机构的作用确定和决定公共和私人权力、执行司法、惩罚犯罪以及保护无辜者免受伤害和篡夺财产。与辩论的裁判相比，为了推动这一目标，法官必须做更多的事情。他们需要具备足够的法律知识，是他们能够将事实应用于法律规则并尽可能地解释这些规则。 The counsels of course, have much bigger responsibilities compared to a common debater, they are there to assist the judge to give judgment, it is a more loaded task and therefore clearance and effective communication between judges and counsel are paramount important.
当然，与普通辩手相比，律师的责任要大得多，他们在那里协助法官做出判断，这是一项更繁重的任务，因此法官与律师直接的理清问题和有效沟通是至关重要的。 There is a great difference between them, from its preparation stage to the outcomes. Nonetheless, a platform which allows students to debate are very good starting points and are great preparation for “future lawyers” as it develops many general skills such as the ability to read understand and properly interpret the information given, to ‘turn’ an opponent’s evidence and arguments in one’s favour and to analyse primary and secondary source research. It is not surprising that many former debaters become successful advocacy lawyers at the end of the day.
Ting Bee Ren
University of Leeds