ISSA Proceedings 1998 – Definitions In Legal Discussions

ISSAlogo19981. Introduction
It is well-known that in many a legal dispute the question arises what the exact extension of a predicate is. The difference of opinion in such cases almost always concerns the question as to whether an incident comes under the reach of a concept that is expressed by a particular word or phrase in a legal text in which the rights and obligations of the persons holding legal rights are established (for example a law or agreement). In such cases of difference of opinion the lawyers are forced to declare what a certain word or group of words means in their opinion. And in the discussions that may be carried out they often also give definitions of the words or phrases concerned and will, in principle, have to justify the acceptability of such definitions.
The question now is: how do lawyers – and more particularly judges – deal with this kind of language controversy; what kind of definitions do they give and how do they present and justify them? I attempt in this article to give an interim answer – an interim answer due among other things to the insufficiency of the systematic research I have done into the judgements of judges in The Netherlands.
The article is set up as follows. In paragraph 2 a case is given in rough outline and in paragraph 3 there is the development of part of the legal discussion as a result of that case. In paragraph 4 I go into the question of which types of definition can be distinguished and how the plausibility of each of these different types of definition can be argued. In paragraph 5 I reconstruct part of the legal discussion in the light of the typology of definitions dealt with in paragraph 5. Paragraph 6 constitutes the conclusion of this article.

2. A case: fire in a building[i]
Mr. Matthes owned a house of nine rooms. In 1979 the house was inhabited by Matthes with his wife and four children and also by a tenant and her son. All the rooms were in use by Matthes and the members of his family, except for one room on the first floor which was used by the tenant.
Matthes wanted to take out fire insurance with the Noordhollandse insurance company and submitted an application form for this purpose for an ‘index/extended insurance for private house’. On the reverse of the form it stated:
1. the applicant declares: a. that the private house on which or in which insurance is requested, is of brick/concrete with a hard roofing, with no business or storage and without increased danger to adjoining properties’.

From 17 July 1979 the Noordhollandse insurance company insured the house for the period until 17 July 1989 including fire risk. The policy for extended building insurance dated 2 August 1979 referred to the house with the addition:
2.  ‘serving solely as private house’.

On Monday 3 December 1984 at about eight-thirty p.m. fire broke out in the house resulting in considerable damage. At that time the house was inhabited by Matthes and his wife and a total of five rooms were rented out to three different single gentlemen. Naturally Matthes claimed on the insurance company for the damage which amounted to some 500,000 Dutch guilders. However the company refused payment on the grounds of the insurance since in its opinion the premises insured no longer served as a private house but was used as a room rental business for which during the insured period the use of the insured object was altered, whereas Matthes had not informed the insurance company of the fact. The Noordhollandse appealed to article 293 of the Commercial Code of The Netherlands:
3.  ‘If an insured building is given a different use and is thereby exposed to increased danger, so that the insurer, if such had been in existence before the insurance was given, would not have insured the same at all or not on the same conditions, this obligation is terminated.’ Read more

Bookmark and Share

ISSA Proceedings 1998 – The Diagnostic Power Of The Stages Of Critical Discussion In The Analysis And Evaluation Of Problem-Solving Discussions

ISSAlogo19981. Introduction
Problem-solving discussions, conducted in all situations where people jointly have to solve problems and reach decisions, are an important part of public as well as private life. Since considerable interests are often at stake, it is important that these discussions be carried out in such a way as to ensure that the best possible decision is reached. In view of the importance of safeguarding the quality of problem-solving discussions, it is relevant to develop instruments for analyzing and evaluating such discussions. These instruments should make it possible to establish whether participants act in a fashion that is conducive to the goals of problemsolving discussions, and, if not, in what respects, at what points in the discussion, and in what ways. Such an analysis of the ways in which discussions can go wrong will yield a basis for teaching participants how to avoid these counterproductive practices in future.

In this paper, I will show that the ideal model of critical discussion, which is central to the pragma-dialectical approach to argumentative discourse developed by Van Eemeren and Grootendorst (1984, 1992), provides a diagnostic instrument which may be used in carrying out such an analysis. The model specifies the stages of critical discussion through which rational resolution of a difference of opinion is attained, and the speech acts which have to be performed in each of these stages. So far, the model has been applied mainly as an heuristic and analytical instrument for the dialectical reconstruction of discursive texts (Van Eemeren et al. 1993) and as a framework for systematizing the various fallacies which may hinder the rational resolution of differences of opinion (Van Eemeren and Grootendorst 1984, 1992). I will demonstrate that the model can be used also for determining the quality of problem-solving discussions qua discussion, that is, as the medium through which the resolution of differences of opinion is accomplished. In a pragma-dialectic perspective, a discussion qua discussion is good if it provides optimal opportunity for the systematic critical testing of ideas. What this comes down to is that a good discussion is one which optimally enables the execution of the stages of critical discussion. The quality of a discussion qua discussion, then, may be determined by examining how well it enables the execution of the stages of critical discussion. In this paper, I will examine a real-life problem-solving discussion in this fashion, showing that an analysis along these lines enables the analyst to gain a rather precise insight into what went wrong in the discussion, in what respects, and why.[i]

2. The context of the discussion
The discussion took place during the staff meeting of an organization which initiates and manages co-counseling groups. Three of the participants, A, B, and D, are paid staff members of the organization: A and B full-time administrators, D a part-time group coordinator. The fourth one, C, is a volunteer, a representative of the group leaders. C and D are members of the training program committee; A and B regularly meet with the board of directors of the organization. The topic of the discussion is the organization of additional training for group leaders, after the one year of basic training which they receive. A has opened the discussion with the question “where does it belong”. Read more

Bookmark and Share

ISSA Proceedings 1998 – Argumentation As Normative Pragmatics

ISSAlogo19981. Introduction
I am told by my informants that in Dutch the term argument has intrinsically positive connotations, that positive approval is built into the use of the term. Arguments and arguing are good things. That may be the case for Dutch, but in American English the term argument is starting to become a bad name. People accuse argument of being a force for social exclusion, a means of enforcing hierarchies of power and privilege. Others see in it adversaries, antagonists, contestants, winners and losers, conflict, competition, criticism, and social alienation. It is found in the trickery and stratagems of lawyers and spin doctors whose doubletalk can make anything seem reasonable. Argument appears to others as just one more instrument in the arsenal of slick Madison Avenue admen and selfserving Washington politicians who can justify anything, promote anything, excuse anything, and get away with anything. There is even disenchantment with its seeming use as a forum in which experts and authorities may dither and debate any issue until the public finally loses interest or it is too late to do anything meaningful. We live in a world in which O.J. Simpson walks, Bill Clinton smirks, greenhouse gases still spew into the atmosphere, the tobacco companies continue to sell cigarettes to children, and the lawyers all get rich. If argumentation isn’t part of the problem, it isn’t much of a solution either. At least, that’s how it seems to many people these days.

Now I happen to think this is all mistaken. I happen to think argumentation has a lot to offer in the way of solutions to these kinds of problems. And I think most of you will agree with me. But I also think that this suspicion and this mistrust of argumentation has little to do with the kind of concerns we have traditionally emphasized as a field of study. I think that is why there is suspicion and mistrust, mistaken as it may be. I think these people see something about argumentation that we academics tend to overlook and need to address. What ordinary people see are problems in the pragmatics of argument.

2. Traditional Pictures
For most of its contemporary history, argumentation theory has been dominated by a particular picture of what an argument is. The picture is a visual model that looks like this:
All Greeks are men.
All Athenians are Greeks.
– – – – – – – – – – – – – – – –
Therefore all Athenians are men.
(Copi, 1953: 163)

or sometimes it looks like this:
Harry was born – – : – – Harry is a British subject in Bermuda
A man born in Bermuda will be a British subject.
(Toulmin, 1958: 99)

or other times it looks like this:
P1 P2 P3

P1. Frances is very successful in her career.
P2. Frances has a secure and supportive marriage.
P3. Frances had a stable and secure childhood.
C. Therefore, Frances is a happy person.
(Hughes, 1992: 82) Read more

Bookmark and Share

ISSA Proceedings 1998 – The Rhetorical Audience In Public Debate And The Strategies Of Vote-Gathering And Vote-Shifting

ISSAlogo1998In the pragma-dialectical approach to argumentation, as represented by van Eemeren & Grootendorst (e.g., 1992) or Walton (1989, 1992, 1995), critical discussion provides the normative model for rational argument. But do the norms for critical discussion also apply to political debate? As rhetoricians, we insist that critical discussion and political debate are different genres with different norms. Critical discussion is dialogic, debate is trialogic (Dieckmann 1981, Klein 1991). The arguers in the discussion address each other with the cooperative goal of resolving the dispute; debaters do not argue in order to persuade each other, but to win the adherence of a third party: the audience (Jørgensen, in press).
Because of its trialogic nature, a debate must answer the needs of the audience. This means that a debate should be evaluated in relation to the functions it fulfils. This does not mean that our approach is oriented toward uses and gratifications in the traditional sense. We are interested not only in the functions of debate, but also in the specific features of debates that serve these functions; and our approach is normative.
We shall concentrate on issue-oriented debates, such as the Irish debate over the Ulster peace plan, or the Danish debate over the Amsterdam treaty. What we have to say about the rhetorical audience and the quality of public debate has particular reference to how debate is conducted on TV.

Opinion polls will tell us that the audience of such debates consists of three groups: those in favour, those against, and the undecided. Commentators typically refer to the undecided as those who have not made up their minds yet, implying that all the others have indeed made their minds up. Accordingly, it is assumed that the outcome depends on the remaining undecided voters.
But this is misleading. Both among those in favour and among those against, there are many who have not made their minds up, and who may well change sides – under the influence of events or  arguments. To document this, we may cite a poll in the French daily Libération shortly before the referendum in France on the Maastricht treaty in 1992. Here – interestingly – voters were asked whether they might change sides on the issue. No less than 37 % of those who intended to vote yes admitted they might also vote no, and conversely for 34 % of those who said they intended to vote no. It is probably true that especially in matters concerning the European Union many voters are in two minds; they feel that there are arguments on both sides of the issue, and they are constantly weighing them against each other.
What this means is that on any issue, the audience represents a spectrum of opinion, with unmoveable partisans at both ends, and with a fair number of voters near the middle of the road who lean to one side but who may be shifted. But debaters and TV programmers tend to make the undecided their primary target because they falsely believe that the static and simplistic Yes-Undecided-No model says all one needs to know about the debate audience. They forget the lesson of the Danish referendum which rejected Maastricht because many voters changed sides at a late stage, even at the polling station.
To understand how some voters can thus be in two minds, we shall propose a model of the debate audience (inspired by Tonsgaard 1992). This, in turn, will allow us to distinguish between the different functions of debate for the public audience. Read more

Bookmark and Share

ISSA Proceedings 1998 – The Importance Of Being Argumentative: Designing Disagreement Into Teaching/Learning Dialogues

ISSAlogo1998The single most important thing to know about the pragmatics of argumentation is that argumentation is a kind of conversational expansion, a form of repair that kicks in when triggered by a special sort of event. Discourse occurs before a very dense backdrop of assumptions, assertions, and implications, not all of which can be examined for their acceptability or justifiability. Whenever any of us speaks, we evoke for our hearers an indefinitely expandable context of belief and claim, any part of which may be called out and made arguable. Most of what we say, and especially most of what we evoke, passes without close examination.
This willingness to let things pass without examination, though essential to the organization of conversation, is antithetical to what is commonly called “critical thinking.” In educational contexts, at least, we might suppose that what we want is for students to be constantly engaged in reviewing each proposition advanced and considering whether it is to be believed or not. Realizing, however, that a speaker’s “standpoint” is not simply what is asserted but also what must be believed in order to have made that assertion and to have made it in the circumstances in which it was made, we see that it is not in fact possible for students to inspect everything. Like all of us in all contexts, they must pick and choose among propositions to examine. In the classroom as in conversation, most statements pass without inspection.
This paper is about designing discourse for the support of argumentation, both in the sense of stimulating its occurrence and in the sense of regulating its conduct. Argumentation is valuable in educational contexts, and although I do not expect this point to be controversial, I will begin by reviewing in the first section some of what is known about the relationship between argumentation and learning. Unfortunately, however valuable argumentation may be, it is also interpersonally complex, implicating not just our beliefs about impersonal things but also our “standing concerns” for identity, status, and relationship (Jacobs, Jackson, Stearns & Hall 1991). In status-marked settings like the classroom, these interpersonal complexities can create intractable dilemmas for the structuring of argumentation, a point to be elaborated briefly in the second section of the paper. Employing a design methodology described briefly in the third section of the paper, I will describe several explicitly theorized plans for the incorporation of argumentation into teaching and learning. In this respect, the present paper is an instance of the form of practical research my colleagues and I championed in Reconstructing Argumentative Discourse (van Eemeren, Grootendorst, Jackson & Jacobs 1993): research organized by the search for argumentation procedures that take into account the situation of argumentation within real-world constraints and limitations. Read more

Bookmark and Share

ISSA Proceedings 1998 – Using Argumentation Analysis To Examine History And Status Of A Major Debate In Artificial Intelligence And Philosophy

ISSAlogo19981. The Problem
My primary goal today is to introduce you to a pioneering project undertaken to see how extensive mapping of arguments can be accomplished and whether such a mapping would be useful to students, teachers, and scholars. Why would you want to map an extensive argument? Let me start with a hypothetical story. In the 1930s Alan Turing, the great British mathematician, invented the ideas on which the modern computer is based. In 1950, he wrote, “I believe that at the end of the century the use of words and general educated opinion will have altered so much that one will be able to speak of machines thinking without expecting to be contradicted.” He certainly thought the computers would be able to think. However …. there are less than two years left before the end of the century. Unfortunately, Turing died in 1954 at the age of 42. Suppose he came back from the dead after 44 years to find out whether his prediction had come true. Suppose he asked you, “What’s happened since I died? Was I right? Does everybody agree that computers can think?”

In the first place we could tell him that he certainly should have expected to be contradicted. That almost 400 scholars have engaged in a 48-year argument that he started. That the argument was worldwide. That it has taken place in almost 300 journals and books and consists of more than 800 major “moves” – claims and rebuttals and counterrebuttals. He would find out that some of the greatest physicists, philosophers, computer scientists, and psychologists in the contemporary world have taken part in it.
Suppose Turing said: “Right now I don’t have time to read 300 journals and books. What is the status of the argument? Where does it stand now?” Stop for a moment. How would you give him a serious answer? Suppose you managed to answer his question. Then suppose he asked another: “Where can I get an overview of the history of the arguments so I can decide which I want to read.” Where would you direct him?

2. The Problem As We Saw It
For great debates like this one about machine intelligence, there is:
– no comprehensive map of this major debate
– no way to get an up-to-date briefing on its current status
– no way to link positions to rebuttals (so that proposed refutations of data and positions can be easily compared)
– no efficient way to navigate through the argument
– no way to visually inspect its structure and direction

These are also the problems of every beginning student in any major subject-matter debate. And these problems are not only true of the artificial intelligence debate but also of most of the great discussions in which humanity is involved. While the argumentation maps I will talk about today show the substance of this decades-long, worldwide debate, I will not so much focus on the substance of that particular argument. Rather, I want to discuss with you the argumentation analysis format we developed, the implications that our maps have for the study of argumentation analysis, the problems we encountered, and the kinds of solutions we came up with.
I should add an historical note here. Credit must go to Stephen Toulmin who, as far as I know, developed the modern ideas of argumentation analysis in 1957. I worked in the mid-80s on a variety of graphic approaches to mapping extensive argumentation. A chapter of my 1989 book, Mapping Hypertext, is devoted to the progress I made. But in the end I felt I hadn’t quite got a useful enough approach. Four-and-a- half years ago I took up the problem again when I went to Stanford. Read more

Bookmark and Share
  • About

    Rozenberg Quarterly aims to be a platform for academics, scientists, journalists, authors and artists, in order to offer background information and scholarly reflections that contribute to mutual understanding and dialogue in a seemingly divided world. By offering this platform, the Quarterly wants to be part of the public debate because we believe mutual understanding and the acceptance of diversity are vital conditions for universal progress. Read more...
  • Support

    Rozenberg Quarterly does not receive subsidies or grants of any kind, which is why your financial support in maintaining, expanding and keeping the site running is always welcome. You may donate any amount you wish and all donations go toward maintaining and expanding this website.

    10 euro donation:

    20 euro donation:

    Or donate any amount you like:

    ABN AMRO Bank
    Rozenberg Publishers
    IBAN NL65 ABNA 0566 4783 23
    reference: Rozenberg Quarterly

    If you have any questions or would like more information, please see our About page or contact us:
  • Like us on Facebook

  • Follow us on Twitter

  • Archives