ISSA Proceedings 2006 ~ The Criminal Abduction Paradox


Abstract
In criminal trials at common law there is an apparent clash of legal principles. On the one hand, a jury cannot convict an accused except on a finding of guilt “beyond a reasonable doubt.” On the other hand, juries base their verdicts on what they take to be the best “theory of the case”. A theory of a case is a conjecture that best explains the evidence led at trial. Theories of the case are therefore exercises in abduction. Since abduction is intrinsically conjectural, it is difficult to see how any theory of the case could meet the proof standard of guilt beyond a reasonable doubt. The present paper offers a possible solution of this apparent paradox.

Key words: abduction, activation, conjecture, criminal standard, explanation, hypothesis, ignorance-problem, proof, reasonable doubt, reasonable person, verdict

1. Verdicts as abductive
In the common law tradition, a conviction at the criminal bar is constituted by a verdict of guilt beyond a reasonable doubt.[i] Verdicts reflect an interpretation of the evidence heard at trial and an assessment of the competing parties’ theories of it. A theory of the evidence is also called an “argument”, presented as an address to the jury. An argument in this legal sense is grounded in an inference to the best explanation, which is the most common form of abductive reasoning. So we may say that a guilty verdict is the conclusion of a suitably strong abduction, and that a verdict to acquit is a judgement to the effect that the evidence permits no abduction of requisite strength. A jury’s task is to adjudicate between the rival abductions proffered by opposing counsel in their closing statements. It is also possible that a juror might reject the arguments advanced by counsel and make his own interpretation of the evidence. Either way, the jury’s task is complicated by the fact that nearly always the sum total of the evidence heard at trial is internally inconsistent. This gives all three parties – prosecution, defence and jury – occasion to trim the evidence with a view to reining in its inconsistency. This is done in one or other of two ways, singly or in combination. Juries will either base their determinations on a consistent proper subset of the total evidence, or they will form subsets of it that retain some of the inconsistency, but assign to its competing elements different weightings. It is therefore entirely commonplace that the abductions advanced by opposing counsel proceed from different subsets of the total evidence. Nor is it uncommon that the evidence tied to the jury’s own abduction is yet a different subset of the evidence, although usually they overlap fairly significantly. Accordingly, a lawyer’s address to the jury will typically have two components. One is a presentation (sometimes implied rather than expressed) of reasons for selecting his particular subset of the evidence. The other is the advancement of what he takes to be the best explanation of it. By the time a case goes to the jury, it is often the case that the trier of fact is faced with two rival abductions explaining two rival bodies of evidence. It falls to the trier of fact to assess not only the strength of these rival abductions, but the soundness of the evidence-selection choices to which they are tied. Read more

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ISSA Proceedings 2006 ~ The Rules Of The Critical Discussion And The Development Of Critical Thinking


logo 2006The purpose of this paper is to discuss the concept of critical thinking as an operative concept that makes it possible to generate a strategy for developing critical abilities in the students and, in this way, to achieve one of the most important objectives of the Chilean Educational Reform.

It is evident that the concept of critical thinking is vague. Many authors have different perspectives about this concept and, to same extent, they contradict each other. My intention is not to intervene in this controversy, but to look for a solution in a different direction. This means using a methodology that allows us to determine some basic characteristics of the concept of critical thinking avoiding dealing with general conceptions of the concept. The main objectives are then to establish a list of the most important characteristics that allow the development of critical thinking among the students.

1. Conceptual analysis
What I am going to do is to analyze the concept of critical thinking in the same way that anyone would analyze concepts such as democracy, education, science, etc. I will make use of the technique of conceptual analysis as developed for John Wilson (1960, pp. 1-49). In Wilson’s conception, these concepts are called philosophical concepts, because even though we know how to use them in some contexts, we do not know the boundaries of each concept or, simply, such limits are open or don’t exist. We know, nevertheless, some typical cases that are central to the concept. This means that nobody that would use these concepts could ignore them as instances of such concepts. So we can use these instances in order to obtain some specific characteristics of the concept, and we can avoid the difficult task of defining the general concept of critical thinking.

In the case of critical thinking, one of the central instances is, of course, logical abilities, or more specifically, the ability to infer consequences from some principles or assertions. It would be strange to say of a student that cannot infer consequences in a correct way that he is a critical person. It is obvious that one of the main characteristics of a critical student is the ability to distinguish between correct arguments and fallacies or incorrect arguments. Therefore, Wilson’s methodology consists in dealing with specific instances of the concept, the central ones in the first place and, then, we continuing attempting to explore the limits of the concept analyzing the consequences that follow from each of these instances. What does logical ability imply? Read more

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ISSA Proceedings 2006 ~ A Discussion Of Habermas’ Reading And Use Of Toulmin’s Model Of Argumentation


logo 2006Introduction
It will probably be useful to start with some contextualization of the discussion. Apart from a desire to better understand both Habermas and Toulmin, the starting point here is a research and teaching interest in applied ethics. Difficult epistemological problems are raised especially concerning environmental issues. We find ourselves in need of seeing excellent environmental practices adopted if possible by all the major players, whether it be companies or countries, while at the same time the decision makers are affected by risk assessment problems and uncertainties that require modal judgments, using probability or the like. As we will see, those issues are central to the discussion of Habermas’ reading and use of Toulmin.

Habermas contributed in an extraordinary way to normative thinking since the 1960s. He asserted the foundational nature of his theoretical work, especially in the period of the Diskursethik and his Theory of Communicative Action (beginning of the 1980s). Still quite recently, he presents himself as part of what he calls pragmatic Kantianism (Habermas, 2003, 2, p. 16). Throughout his work, he is looking for some rational validation of moral principles, and in a kantian manner he wants to arrive at this justification by means of a universalizing procedure, but according to him, this should proceed in considering first and foremost discourse practices. Any norm implies that some action is required, or forbidden; in considering the consequences, could all persons affected by the norm agree on it? (Habermas, 1983). We must remember also that he adopts a cognitivist perspective on moral issues, which means he does not want to let moral evaluation or prescription rely on emotion or on the will, but wishes to understand normative problems as susceptible of rational solutions. Those elements explain in part why he refers to the so-called Toulmin model, especially between 1972 and 1983: it refers to rationality, to argumentation and seems to permit universalization. In 1972, Habermas’ purpose is not to give a precise presentation. In fact, even in 1981, his use of Toulmin is rather rhetorical and selective. He is mobilizing Toulmin to serve his foundational project, which should not come as a surprise.

On the other side, it is also clear why Toulmin still has an enormous importance today in ethics, in particular (among other things) in decision making situations. Modals and rebuttals are of the foremost importance if we are to make decisions and judgments while taking into account context and possible exceptions. In the problem domain of environmental ethics, where risk issues and decision processes in quite uncertain situations are regularly required, this is even more the case. Those are difficult issues to treat and the available knowledge is far from the level of certainty most people would prefer for making decisions.

Here I will briefly recall some of Jürgen Habermas’ theoretical work, and limit the focus to the use by Habermas of Stephen Toulmin’s model of argumentation, especially in the article Wahrheitstheorien that is not translated in English yet.[i] The article will be looked at in detail.[ii] I will conclude by looking at the 1981 treatment and to what happens with the issue in later work (especially Habermas, 1983 and Habermas, 2003). Read more

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ISSA Proceedings 2006 ~ Arguing With Asperger Syndrome


1.  Introduction
The study examines the argumentative competencies of people with Asperger syndrome (AS) and compares this with those of normal – or what are called neurotypical (NT) – subjects. To investigate how people with AS recognise, evaluate and engage in argumentation, we have adapted and applied the empirical instrument developed by van Eemeren, Garssen and Meuffels to study the conventional validity of the pragma-dialectical freedom rule (van Eemeren, Garssen & Meuffels 2003a; 2003b; 2005a; 2005b; van Eemeren & Meuffels, 2002). Our paper begins with some background information on Asperger syndrome and how it impacts upon communication and argumentation; then it addresses the research questions and methods used; thirdly, it presents some initial findings; finally, it will conclude with some implications for those people with AS, for those they come into contact with and for the pragma-dialectic model in general.

2.  Asperger Syndrome (AS)
Asperger Syndrome is a neurological disorder named after Hans Asperger. In 1944, Asperger published a paper that described patterns of behaviour in young men who had normal intelligence and language development, but who also had deficiencies in social and communication skills. Despite being identified in the 1940s, Asperger syndrome (AS) is a relatively new category of developmental disorder, and was only ‘officially’ recognized in 1994, in the fourth edition of the Diagnostic and Statistical Manual (DSM IV) of the American Psychiatric Association. AS is often associated with what is called the high functioning end of the autistic spectrum (Frith, 1991) although there is considerable debate about whether AS is high-functioning autism, or something else (Frith, 2004). It is generally accepted that AS, like autistic conditions, is a neurologically-based developmental disorder, in which there are deviations in three broad aspects of development: first, social relatedness and social skills; second, impaired communication, and a lack of pragmatic skills in particular; and third, certain behavioural characteristics involving repetitive, or what are called perseverative features, often accompanied by an intense interest in a limited range of subjects. It is the level of deficiency in these three categories – social-relatedness, communication & behaviour (which Wing (1993) has called the “triad of impairments”) – which can range from relatively mild to severe, that defines all of the pervasive developmental disorders, from those with mild AS through to the profoundly autistic. Read more

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ISSA Proceedings 2006 ~ Cultural Differences In The Persuasiveness Of Normatively Strong And Normatively Weak Expert Evidence


1. Introduction
People sometimes use expert evidence in support of their claims in persuasive texts (Hornikx, 2004) or speeches (Levasseur & Dean, 1996). The fact that, for instance, Professor Jackson underscores that playing party games helps young criminals to become more socialized, may serve as expert evidence in support of a claim about the effects of playing games for young criminals. In such cases, an argument by authority is formed, because “a statement is defended by pointing out the fact that an authoritative person or institution subscribes to it” (Schellens, 1985, p. 179).

Walton (1997) provided a detailed discussion of the argument by authority, and distinguished two different types of authority: the administrative authority and the cognitive authority. An administrative authority has “the right to exercise command over others or to make rulings binding on others through an invested office or recognized position of power” (p. 76). Examples of this kind of authority are a minister and a mayor. When a cognitive authority is concerned, there is “a relationship between two individuals where one is an expert in a field of knowledge in such a manner that his pronouncements in the field carry a special weight of presumption for the other individual” (p. 77). When expert evidence is used as support for claims in a persuasive setting, it is related to this cognitive authority.

In Section 2, I will give an overview of studies that investigated the persuasiveness of expert evidence as well as other types of evidence. One of these studies demonstrated that the persuasiveness of expert evidence was not the same in two different cultures. Section 3 will therefore discuss the relationship between expert evidence and the cultural background of people who judge expert evidence. Special attention will be paid to the question whether people from different cultures may vary in the persuasiveness of expert evidence that is normatively strong or normatively weak according to criteria from argumentation theory. The second part of this article will report on an experiment that investigated the persuasiveness of normatively strong or normatively weak expert evidence in France and the Netherlands. Read more

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ISSA Proceedings 2006 ~ An Analysis Of Preschool Hebrew Speaking Children’s Arguments From The Perspective Of The Pragma-Dialectical Model


logo 20061. Characteristics of Children’s Verbal Arguments
Verbal arguments are part of young children’s normal activity and are usually “rule governed and socially organized events” (Benoit 1992, p. 733). Researchers have concluded that they have a positive effect on friendships and cognitive development (Corsaro 1994, Dawe 1934, Garvey 1993, Green 1933, and Shantz 1987). Corsaro (1994, p. 22) states “disputes provide children with a rich arena for development of language, interpersonal and social organization skills, and social knowledge.” In fact, O’Keefe and Benoit (1982) see argument as part of normal language learning. Piaget (1952, p. 65) states “[i]t may well be through quarrelling that children first come to feel the need for making themselves understood”.

Children’s arguments are generally short in duration. For example, Dawe (1934) found that on average quarrels last 14 seconds, while O’Keefe and Benoit (1982) found that young children’s disputes consisted of an average of five turns. Although these disputes are not long in duration, they are powerful events. Once a dispute has begun, “any prior goal or task is abandoned and the attention is directed to resolving the incompatibility” but “[o]nce the conflict is resolved, play can once again be resumed” (Eisenberg and Garvey 1981, p.151). These verbal disputes can be considered as “side-sequences” (Jefferson, 1972), important at the moment, but with no lasting effect on interaction.

2. The Study and Research Question
This paper will report on ongoing research investigating the verbal arguments of Hebrew speaking pre-school children. The data for this research was transcribed from videotapes of fourteen triads of pre-school children at play in a playroom that was set up for the purpose of the study. The children are also in daily attendance at the same pre-school. The subjects’ ages ranged from 4 years six months to six years five months, however the maximum age differences of the children in each individual group was usually around six months. Children above the age of four were chosen since by this age normally developing children have acquired the basics of their language system (Brown, 1973). The children were all native speakers of Hebrew. While the children conducted their talk in Hebrew it was transcribed and translated simultaneously into English by the author.

While this is an ongoing study with a number of research questions, only one of these will be related to in this paper. This question is presented below:
Is the process of Israeli preschool children’s arguments consistent with the pragma-dialectical model of van Eemeren and Grootendorst (2004)? Read more

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