ISSA Proceedings 1998 – Final But Not Infallible. Two Dimensions Of Judicial Decisions
1. Introduction
One of the forms of rule skepticism, found both in legal practice and in legal theory, learns that the law is what the courts say it is and nothing more. In his study The Concept of Law (1961) Hart criticizes this form of rule skepticism. Decisions of a court he says, are statements with a certain authority making them final but not also infallible. To clarify this, Hart uses the example of an umpire in a game. In a game the judgements of an umpire – for instance about the scoring – have a certain authority. His judgements are given, by the secondary rules of the game, a status which renders them unchallengeable. In this sense it is true, says Hart, that for the purposes of the game ‘the score is what the scorer says it is’. But it is important to see that there is a scoring rule and it is the scorer’s duty to apply this rule as best he can.[i] It is this scoring rule which makes decisions of the umpire, though final, not infallible, for this scoring rule offers reasons for criticizing the decision.
According to Hart the same is true in the law. Like the umpire’s decision in a game, the decisions of a judge like ‘X is guilty’ or ‘X has a right’ are – up to a certain point – final. But, like the umpire in a game, the judge has an obligation to apply the rules correctly according to the secondary rules in a legal system.[ii] As a result judicial decisions are fallible.
Austin (1962) made similar observations about the nature of judicial decisions. He argues that if it is established that a performative utterance is performed happily and in all sincerity, that still does not suffice it beyond the reach of all criticism. It may always be criticized in a different dimension, a dimension comparable with the true/false criterium used to evaluate constative utterances: ‘Allowing that, in declaring the accused guilty, you have reached your verdict properly and in good faith, it still remains to ask whether the verdict was just, or fair’ (1962:21)
Since the publications of Austin en Hart, the observations about the character of judicial decisions give rise to the question what type of speech act is involved. Both in legal theory and in argumentation theory it is posed as a problem whether these speech acts are, or are to be reconstructed, as declarative, or as assertive speech acts. For on the one hand, the judge declares that somebody is guilty, but on the other the judge justifies that this decision is right according to the law. And this justification is a reason to reconstruct the decision as an assertive or, to be more precise, as a standpoint in a context of a discussion.
In this paper, I want to discuss the problem of the speech act character of a judicial decision within the framework of the pragma-dialectical argumentation theory. My basic starting point is that it is a misunderstanding to treat speech acts in judicial decisions as either assertive or declarative speech acts. I think that, for an adequate analysis of the speech act, one has to make a distinction between at least two discussions in a legal process and related to this distinction different functions of the speech act in a final judicial decision.
I will proceed as follows. First, I will discuss the merits and demerits of reconstructing a final judicial decision as the mixed speech act called assertive-declaration. Then, I will differentiate between two discussions and two types of speech acts in a legal process. Finally, I will discuss how these two different types of speech acts can be reconstructed as a standpoint. Read more
ISSA Proceedings 1998 – The Perceived And Actual Persuasiveness Of Different Types Of Inductive Arguments
1. Introduction
Policy decisions can give rise to lively public debates. Should we build a new airport, expand the old one, or try to cut down on travelling by airplanes? Should we build more motorways or make the public transport cheaper in order to solve the traffic congestion problem? When a debate arises, each option will have its own proponents. They will try to persuade others that their option is indeed in everyone’s best interests. To achieve that goal, they put forward pragmatic argumentation. That is, they claim that their option will probably or certainly result in desirable consequences. The strength of their argument depends on two aspects: The consequence’s desirability and the consequence’s probability. A strong argument in favor of the option would be that the option will certainly result in desirable consequences.
Previous research has shown that people have more trouble evaluating arguments supporting a probablity claim than evaluating arguments supporting a desirability claim (Areni & Lutz 1988). In other words: The argument quality of a desirability argument is more transparent than that of a probability argument. O’Keefe (1995) suggested that argumentation theory provides a framework to study the concept of argument quality. However, he also warned that what should be convincing from the point of view of an argumentation theorist, is not always convincing from a layperson’s point of view.
In this paper, I will first discuss the different types of argument that can be used to support a probability claim. Next, I will review empirical research in which the actual persuasiveness of these types of argument is studied. However, in none of the studies, the persuasiveness of the different argument types has been compared directly. Section 4 contains the description of an experiment in which the same claim is supported by different types of argument. The actual persuasiveness of these argument types is measured, as well as the extent to which the participants think that they are convincing.
2. Types of argument
In policy debates, probability claims typically refer to future events, for instance: building a new airport will boost the economy. To support such claims, one can use inductive reasoning. Usually, three types of argument are distinguished in inductive reasoning (see, e.g., Govier 1992). Following the terminology employed by Rieke and Sillars (1984), these three types are the argument by analogy, the argument by generalization, and the argument by cause.
Rieke and Sillars (1984: 76-77) define an argument by analogy as follows: “(…) you compare two situations which you believe to have the same essential characteristics, and reason that a specific characteric which exists in one situation can be reasoned to exist in the analogous situation”. For instance, to support a claim about the beneficial economic effect of building a second airport, proponents may give the example of another country in which the building of a second airport had a strong beneficial effect on that country’s economy. Essential for the quality of this argument, is the extent to which the two countries are similar. The more similar the countries, the more valid the argument by analogy. Read more
ISSA Proceedings 1998 – The Role Of Arguer Credibility In Argument Evaluation
The history of applied logic in the English-speaking countries in the twentieth century can be discerned in the curriculum students have been exposed to in logic courses. That curriculum is manifested most explicitly in the text books that have been used, primarily in logic courses offered by philosophy departments. One of the more interesting aspects of the evolution of the applied logic curriculum is the gradual expansion of interest of logicians in creating techniques for more and more kinds of arguments.
The first half of the century reflected an interest in techniques that could establish whether or not an argument was deductively valid as a consequence of its logical form. Until the thirties, syllogistic dominated as the technique of choice, as it had for centuries before. But the creation of the propositional and predicate calculi around the turn of the century, followed by Gentzen’s development of “natural deduction” versions of these, led to these systems superceding the syllogistic as the preferred tools for inference evaluation. This is reflected in the introductory logic texts that appeared in the late forties and early fifties. Among them was Irving Copi’s Introduction To Logic, which appeared in 1951 and ultimately became the template for many such texts.
An examination of even the latest edition of Copi’s text will show the deductivist orientation of these texts. By their tests, only a small subset of everyday arguments could qualify as having logically good inferences. This fact should have bothered logic teachers, since it was recognized even then that people, including themselves, were often persuaded to believe the conclusions of arguments whose inferences were not formally valid. But the formal techniques continued to hold sway, partly because of a lingering Cartesianism. It was difficult to let go of formal validity as a logical paradigm of good inference. Some of this reluctance has been due to the dubious conviction that logicians ought to have better logical standards than anyone else.
Some people did shake off the spell of formalism, however. I am thinking here of Max Black and Monroe Beardsley, who produced texts around 1950 that look surprisingly contemporary in terms of curriculum. But it was not until around 1970 that texts of this kind began to become popular. Names such as Howard Kahane, Stephen Thomas, and Michael Scriven come to mind. These texts have come to be considered texts in Informal Logic, a “movement” that became visible as a result of the conference organized by Anthony Blair and Ralph Johnson in 1978 at the University of Windsor.
In its narrower version, Informal Logic has focused on the evaluation of inferences made in everyday argumentation, using whatever criteria seem to be appropriate. These could be deductive or inductive tests. Expressed one way, the goal could be seen as that of arriving at a probability value for a conclusion, given the truth of the premisses (Of course, this judgment was not expressed numerically. The preference has been to use evaluative terms found in language).
In a broader version, one that not all logicians are comfortable with, Informal Logic is about argument evaluation. This involves arriving at an evaluative judgment of how likely the conclusion is, given the argument per se, rather given than the truth of the premisses. This broader concept takes account of the logical fact that the probability of a conclusion depends on the probability of premisses as well as inference quality. Read more
ISSA Proceedings 1998 – Fantasy Themes And Rhetorical Visions In The ‘BRENT SPAR’ Crisis: An Analysis Of Articles Appearing In German And French Newspapers
1. Nature and Consequences of the ‘Brent Spar’ Crisis
In June 1995, the giant oil corporation Shell attempted to sink its obsolete oil platform, ‘Brent Spar’, in the North Sea, 190 kilometers north-east of the Shetland Islands. Their plans were approved by the British government and by the signatories of the Oslo Convention for the protection of the marine environment (Shell ‘Brent Spar’ calendar of events: 1). Shortly before the scheduled deepwater disposal, the environmental organization Greenpeace began a ”high-profile campaign” (Thompson 7.3.96) in opposition to Shell’s plan. The ‘Brent Spar’ crisis started on the 30th of April when Greenpeace activists occupied the platform and held it for three months.
The ‘Brent Spar’ crisis was extremely complex because what Shell had considered to be a British domestic issue actually turned out to be an international ”fracas” involving the countries surrounding the North Sea (Seaman 1996: 4). Greenpeace’s and Shell’s actions caused a three month long conflict over the seas, disagreement among the European governments, public demonstrations and boycotts, fifty fire-bombed fifty Shell service stations, and a war of words in the European media. On the 20th of July 1995, Shell aborted its operation and towed the oil platform to the Norwegian Erfjord, where it was and is still moored and decaying. Up to the present, no clear answer has emerged as to whether an offshore or onshore solution is best. That the platform’s fate is still uncertain reveals the complexity of the issue and further, proves little about who (Shell or Greenpeace) is right or wrong.
The ‘Brent Spar’ crisis has long lasting consequences for the financial situation and the reputation of both parties. Greenpeace has spent a total of $1.4 million on their campaign in opposition to sinking the oil platform. Although Greenpeace was forced to apologize to Shell in September 1995 and admitted that ”their sampling on board of the ‘Brent Spar’ was flawed” (Shell press release 9.5.95), Greenpeace’s enhanced reputation, a result of the ‘Brent Spar’ crisis, remains unchanged. Shell’s position on ‘Brent Spar’ has led to long-term financial consequences as well as damage to their public reputation. Shell gas stations have experienced losses due to a ‘Brent Spar’ boycott (European Energy Report 3.29.95). Further, Shell pays $54,000.00 a month to ‘park’ its obsolete platform in the Norwegian fjord (Thompson 8.14.96). Shell has also spent enormous amounts of money in responding to the crisis, and public trust building, not to mention the new form of disposal.
2. Purpose of the Study
One question that arises when reflecting on the ‘Brent Spar’ crisis is how the newspapers’ communication created symbolic realities that motivated masses of people in different European countries to take sides for or against Greenpeace and a giant like the Shell oil corporation. My study provides an answer to this question by analyzing all press articles that appeared from April 30 to July 20, 1995 in two major German newspapers, ‘Die Frankfurter Allgemeine Zeitung’ (FAZ) and ‘Die Süddeutsche Zeitung’ (SZ), and in three major French newspaper, ‘Le Figaro’ (LF), ‘Le Monde’ (LM), and ‘La Libération’ (LB). Germany and France, which represent the core power group of the European Union, border the Northsea. Furthermore, the two nations are the subjects of my study because they reflect different national reactions to the crisis. Ultimately, the text analysis explains the persuasive appeal of the press and provides an understanding of the development of the crisis. Read more
ISSA Proceedings 1998 – A Few Remarks On The Individuation Of Arguments
1.
“An argument,” Irving Copi tells us in a much-quoted passage, “is any group of propositions of which one is claimed to follow from the others, which are regarded as providing support or grounds for the truth of that one.”[i] Copi’s usual elegance may have temporarily deserted him in the remark quoted, and his definition may be less explanatory than might be desired, but the general idea is clear enough – or at least clear enough for the great majority of people in this room to reject it. Where the Amstel flows and all pragmas are dialectical, propositional definitions of argument, such as Copi’s, have about as much purchasing power as the Indonesian rupiah. Not that that’s necessarily a mark – or even a guilder – against them, and not that that means that propositional views in general, or Copi’s in particular, aren’t worth exploring. Indeed, I think that examining what this Snidely Whiplash of argumentation theory – for so he’s many times considered – says almost always repays attention, and though my focus won’t be his definition of an argument so much as the related issue of the individuation of arguments, I think his views help to clarify both issues.
But let me introduce character number two in this little drama before getting back to Copi, character number one.
A more discourse-oriented definition of argument has been advanced by another arch-villain of argumentation theory, but one not nearly as often targeted for attack and refutation. According to Monroe Beardsley, “an argument is a discourse that not only makes assertions but also asserts that some of the assertions are reasons for others.”[ii] From the pragma-dialectical perspective, Beardsley’s definition may lack the shelter and clothing of the pragma and the dialectical, but at least it partakes of that staff of argumentative life, discourse. More striking than that single but pervasive difference between the two, however, that single but pervasive difference between Copi and Beardsley, are the similarities of their views. Substitute ‘set of propositions’ for ‘discourse,’ ‘propositions’ for ‘assertions,’ and ‘claims’ for ‘asserts,’ and Beardsley’s definition coincides almost precisely with Copi’s. If we bracket the discourse – or rhetorically- oriented elements of Beardsley’s definition, in other words, there is little difference between their views.
2
Which only goes to show that two people can basically agree on one fundamental issue – what an argument is – but profoundly disagree on other fundamental issues, such as what the identity of an argument consists in, and how to individuate arguments. To be clear about what I’m referring to here: the identity of an argument I take to be its self-sameness, the fact, in a sense, that it is what it is – namely, an argument, and, moreover, that argument — and not another thing, not even another argument. I know that’s not very enlightening, but it’s hard to say much more, on a general level, about what the philosophical issue of identity is than that it’s a metaphysical issue and concerns what constitutes, in the most important sense, the fact that a thing is what it is and not some other thing. Bishop Butler would no doubt be proud of me and give me his blessing for my remarks about identity, even if they’d win no awards for advancing the educated public’s understanding of philosophy. Anyway, when discussing the identity of a thing, philosophers generally speak of identity conditions for that thing, and many times the kind of a thing whose identity is being specified is built right into the statement of those conditions. In the case at hand, a typical statement of identity conditions would go something like this: x is the (numerically) same argument as y if and only if….. Read more
ISSA Proceedings 1998 – The Concept Of Resolving Differences Of Opinion And Its Practical Implications In Planning Theory
1. Introduction
There is an anecdote of the famous philosopher G.E. Moore, who was once preparing a paper for a seminar and, being unsatisfied for the closing of his argument, complained about it to his wife over the breakfast table. “Don’t worry, darling, I’m sure they will like it,” said his wife. To which he responded boldly: “If they like it, they are wrong.”
This anecdote illustrates the once clear distinction between being right and succeeding in persuading your audience in thinking so. This attitude, self-evident at least in the analytic tradition in epistemology and philosophy of science, is perhaps in danger of fading away in the midst of rhetorical, discourse analytic, social constructionist, and even some argumentation theoretic studies. Should we miss it, or even defend it? Could be assume that a ’real’ solution can be defined, not only in science, philosophy, or formal logic, but also in practical contexts like moral and political debate and planning of the physical environment? This is a question I shall be addressing in this paper, although, like Moore, I am not at all satisfied with the closing of my argument. I would like to say much more about what a solution is, but I shall be saying much more about what it is not. The concept of solution is not only at the heart of argumentation theory and, as might be added, one of its unresolved problems, but it is also the concept through which the applicability of argumentation theory in practical reasoning is measured. It is not uncommon that argumentation theory is in practical contexts dismissed as an idealized, absolutist theory that has very little to offer to practitioners working in an “unclean” environment of power relations, hidden motives and conflicting interests. In this paper I shall discuss this issue by first analysing some classical texts and their ways of dealing with the subject and, secondly, demonstrate how the interpretation of this concept will appear essential in the practical context of spatial or physical land-use planning.
In recent decades, both planning theorists and practicioners have started discussing the so-called communicative or argumentative turn in planning. This is taken to mean a change in both the rationality conception of planning and in the actual planning practices: away from instrumental rationality and technical expertise that were earlier supposed to be able to define the way that common activities in space can be organized, and towards a communicative approach that will activate people as “stakeholders” to come together to define their priorities and common interests (Healey 1997, Forester 1989, Sager 1994, Fischer and Forester 1993). This entails that the communicative situation and process will get a more central role. If local participation in planning is supposed to provide not only local information and expressions of interests to be interpreted and evaluated by professionals and politicians, but really to provide a way of “making sense together”, then the quality of argumentation in the planning process will become central.
Defined in this way, communicative planning theory is a normative-practical theory (Healey 1997, 68), and it would thus seem to fit into the tradition in argumentation theory that will try to combine empirical and normative elements in communication, such as the pragma-dialectical theory (van Eemeren and Grootendorst 1992). However, spatial or land-use planning is also a communicative practice that differs from the more paradigm cases referred to in argumentation theory, such as jurisprudence or science. It is an instance of political or policy discourse and, consequently, strongly dominated by rhetorical communication. But this is not by itself an obstacle. Supposing that the concept of resolving differences of opinion (instead of merely settling the disputes or negotiating between the parties with conflicting interests) is the dividing line between argumentation theory and rhetorics, then the communicative theory of planning as a normative theory should benefit from the theory of sound, non-fallacious argumentation. This would make it possible to evaluate and criticize argumentation in planning, and even to provide the practicing planner with a toolbox for making better arguments (Lapintie 1998). Read more