ISSA Proceedings 2002 – Legal Argumentation Theory And The Concept Of Law

logo  2002-11. Premise
There has been wide recognition over the last three decades that argumentation plays a pivotal role in shaping the law, since practically any stage of what is ordinarily considered the legal domain involves recourse to reasoning[i]. Legal scientists put forward interpretive statements: they propose what they see as reasonable interpretations of laws and defend these interpretations with arguments. Both of these tasks requires reasoning. Lawyers, when they bring cases to court, must do more or less the same (even if the aims here are more specific and concrete): they interpret general norms and precedents, qualify concrete cases and offer reasons in support of their conclusions. Judges decide cases, an activity which makes it necessary to find and sometimes reconstruct the rule of law, interpret rules and apply them to concrete circumstances, weigh principles, settle conflicts between norms encased in the same legal order, follow precedents, ascertain and qualify facts, determine the most reasonable solution to the case at hand, and put forward justifications for their decisions. All such operations are argumentative. And lastly, in a constitutional democratic state the legislators, too, will tend to offer reasons backing their deliberations, so to make these last more easily acceptable to the people they govern. In doing so even the legislators accept to take part in the game of argumentation.

Clearly, these types of reasoning differ markedly from one another: some are aimed at finding solutions; others are intended to enable making a choice among competing interpretations of norms, qualifications of facts, or decisions of cases; and others still are designed to uphold a point of view and show it to be reasonable. But they have a general feature in common in that they are all deliberative procedures and so not entirely rule-bound. In other words, reasoning and argumentation in law differ from a mere subsumption of concrete facts under general rules. It is precisely because legal argumentation is not entirely deductive that it warrants careful investigation and has attracted the attention of several researchers in different fields of study. Legal scholars, philosophers and argumentation theorists have shown in recent years a growing interest in legal reasoning[ii]. They have been concerned with legal reasoning at different levels of abstraction: philosophical, theoretical, methodological, empirical and practical[iii]. We owe it to their effort if legal argumentation is “no longer considered as merely a part of a broader field of research, but as an object of study it its own right” (Feteris, 1999, 13). In this essay, argumentation in law is approached from a particular perspective, that of jurisprudence. More specifically, the aim here is to make explicit the implications which the recent development of studies in legal reasoning carries for the concept of law. Read more

Hannah Arendt’s Theory of Totalitarianism – Part One

Hannah Arendt

Hannah Arendt – Ills. Ingrid Bouws

Hannah Arendt wrote The Origins of Totalitarianism in 1949, by which time the world had been confronted with evidence of the Nazi apparatus of terror and destruction. The revelations of the atrocities were met with a high degree of incredulous probing despite a considerable body of evidence and a vast caché of recorded images. The individual capacity for comprehension was overwhelmed, and the nature and extent of these programmes added to the surreal nature of the revelations. In the case of the dedicated death camps of the so-called Aktion Reinhard, comparatively sparse documentation and very low survival rates obscured their significance in the immediate post-war years. The remaining death camps, Majdanek and Auschwitz, were both captured virtually intact. They were thus widely reported, whereas public knowledge of Auschwitz was already widespread in Germany and the Allied countries during the war.[i] In the case of Auschwitz, the evidence was lodged in still largely intact and meticulous archives. Nonetheless it had the effect of throwing into relief the machinery of destruction rather than its anonymous victims, for the extermination system had not only eliminated human biological life but had also systematically expunged cumulative life histories and any trace of prior existence whatsoever, ending with the destruction of almost all traces of the dedicated extermination camps themselves, just prior to the Soviet invasion.

Although Arendt does not view genocide as a condition of totalitarian rule, she does argue that the ‘totalitarian methods of domination’ are uniquely suited to programmes of mass extermination (Arendt 1979: 440). Moreover, unlike previous regimes of terror, totalitarianism does not merely aim to eliminate physical life. Rather, ‘total terror’ is preceded by the abolition of civil and political rights, exclusion from public life, confiscation of property and, finally, the deportation and murder of entire extended families and their surrounding communities. In other words, total terror aims to eliminate the total life-world of the species, leaving few survivors either willing or able to relate their stories. In the case of the Nazi genocide, widespread complicity in Germany and the occupied territories meant that non-Jews were reluctant to share their knowledge or relate their experiences – an ingenious strategy that was seriously challenged only by Germany’s post-war generation coming to maturity during the 1960s. Conversely, many survivors were disinclined to speak out. Often, memories had become repressed for fear that they would not be believed, out of the ‘shame’ of survival, or because of the trauma suffered. Incredulity was thus both a prevalent and understandable human reaction to the attempted total destruction of entire peoples, and in the post-war era the success of this Nazi strategy reinforced a culture of denial that perpetuated the victimisation of the survivors. In The Drowned and the Saved Primo Levi records the prescient words of one of his persecutors in Auschwitz:

However this war may end, we have won the war against you; none of you will be left to bear witness, but even if someone were to survive, the world will not believe him. There will be perhaps suspicions, discussions, research by historians, but there will be no certainties, because we will destroy the evidence together with you. (Levi 1988: 11)

Here was unambiguous proof of the sheer ‘logicality’ of systematic genocide. The silence following the war was therefore quite literal, and the publication of Origins in 1951 could not and did not set out to bridge that chasm in the human imagination. It did, however, establish Arendt as the most authoritative and controversial theorist of the totalitarian. Read more

Hannah Arendt’s Theory of Totalitarianism – Part Two

Hannah Arendt

Hannah Arendt – Ills. Ingrid Bouws

Ideology and terror: The experiment in total domination
In chapter two of Hannah Arendt’s Response to the Crisis of her Time it was argued that Arendt’s typology of government rests on the twin criteria of organisational form and a corresponding ‘principle of action’. In the post-Origins essay On the Nature of Totalitarianism, Arendt argues that Western political thought has customarily distinguished between ‘lawful’ and ‘lawless’, or ‘constitutional’ and ‘tyrannical’ forms of government (Arendt 1954a: 340). Throughout Occidental history, lawless forms of government, such as tyranny, have been regarded as perverted by definition. Hence, if

… the essence of government is defined as lawfulness, and if it is understood that laws are the stabilizing forces in the public affairs of men (as indeed it always has been since Plato invoked Zeus, the god of the boundaries, in his Laws), then the problem of movement of the body politic and the actions of its citizens arises. (Arendt 1979: 466-7)

‘Lawfulness’ as a corollary of constitutional forms of government is a negative criterion inasmuch as it prescribes the limits to but cannot explain the motive force of human actions: ‘the greatness, but also the perplexity of laws in free societies is that they only tell what one should not, but never what one should do’ (ibid.: 467). Arendt, accordingly, lays great store by Montesquieu’s discovery of the ‘principle of action’ ruling the actions of both government and governed: ‘virtue’ in a republic, ‘honour’ in monarchy, and ‘fear’ in tyrannical forms of government (Arendt 1954a: 330; Arendt 1979: 467-8).

In all non-totalitarian systems of government, therefore, the principle of action is a guide to individual actions, although fear in tyranny is ‘precisely despair over the impossibility of action’ since tyranny destroys the public realm of politics and is therefore anti-political by definition. Nevertheless, the state of ‘isolation’ and ‘impotence’ experienced by the individual in tyrannical forms of government springs from the destruction of the public realm of politics whereas the mobilisation of the ‘overwhelming, combined power of all others against his own’ (Arendt 1954a: 337) does not eliminate entirely a minimum of human contact in the non-political spheres of social intercourse and private life. Thus, if the fear-guided actions of the subject of tyrannical rule are bereft of the capacity to establish relations of power between individuals acting and speaking together in a public realm of politics, the ‘isolation’ of the political subject does not entail the destruction of his social and private relations (ibid.: 344). Therefore, in all non-totalitarian forms of government, the body politic is in constant motion within set boundaries of a stable political order, although tyranny destroys the public space of political action (Arendt 1979: 467).

Arendt argues that totalitarianism is distinguished from all historical forms of government, including tyranny, insofar as it has no use for any ‘principle of action taken from the realm of human action’, since the essence of its body politic is ‘motion implemented by terror’ (Arendt 1954a: 348; see 331-3). In other words, totalitarianism aims to eradicate entirely the human capacity to act as such (Arendt 1979: 467). For totalitarian rule targets the total life-world of its subjects, which in turn presupposes a world totally conquered by a single totalitarian movement.[i] Hence, only in

… a perfect totalitarian government, where all men have become ‘One Man’, where all action aims at the acceleration of the movement of nature or history, where every single act is the execution of a death sentence which Nature or History has already pronounced, that is, under conditions where terror can be completely relied upon to keep the movement in constant motion, no principle of action separate from its essence would be needed at all. (ibid.)

This important passage contains several key ideas that need to be carefully unpacked. Firstly, we encounter Arendt’s conception of society reduced to ‘One Man’ or a single, undifferentiated Mankind as a condition of a ‘perfect totalitarian government’. We may note here that totalitarianism thus conceived constitutes the very antithesis of the political in Arendt’s sense of men acting and speaking together in a public realm of politics. Secondly, Arendt contends that only in such a perfect totalitarian system would terror, which she views as the ‘essence’ of totalitarianism, suffice to sustain totalitarian rule. Hence, in all imperfect totalitarian dictatorships, terror in its dual function as the ‘essence of government and principle, not of action, but of motion’ (ibid.), is an insufficient condition of totalitarian rule. For, insofar as totalitarianism has not completely eliminated all forms of spontaneous human action, freedom, or the inherent human capacity to ‘make a new beginning’, exists as an ever-present potential within society (ibid.: 466).[ii] Totalitarian movements must therefore strive to eliminate this capacity for political action, and any form of spontaneous human relations. Hence:

What totalitarian rule needs to guide the behaviour of its subjects is a preparation to fit each of them equally well for the role of executioner and the role of victim. This two-sided preparation, the substitute for a principle of action, is the ideology. (ibid.: 468)

However – and this is a crucial point – Arendt stresses that it is

… in the nature of ideological politics … that the real content of the ideology (the working class or the Germanic peoples), which originally had brought about the ‘idea’ (the struggle of classes as the law of history or the struggle of races as the law of nature), is devoured by the logic with which the ‘idea’ is carried out. (Arendt 1979: 472) Read more

The Kingdom Of The Netherlands In The Caribbean. The Politics Of Autochthony And Economic Globalization: Seamy Sides Of The Same Coin

Koningin Juliana tekent het Statuut voor het Koninkrijk der Nederlanden, waarin een nieuwe rechtsorde wordt vastgelegd voor de relatie van Nederland met Suriname en de Nederlandse Antillen

Koningin Juliana tekent het Statuut voor het Koninkrijk der Nederlanden, waarin een nieuwe rechtsorde wordt vastgelegd voor de relatie van Nederland met Suriname en de Nederlandse Antillen

True human progress is achieved not so much by the application of ideas thatare original as by ideas whose application brings more human beings together toshare a richer and fuller life.
John Blacking (1969: 60)

What this essay is about
After 50 years of the Kingdom Charter, the people of Sint Maarten want change. They want their country to gain a separate status within the Dutch Kingdom. A status that will be similar to the one Aruba currently enjoys; one that grants them direct access to the Netherlands, circumventing the bureaucracy of Curaçao. In this essay I argue that the success or failure of their representatives to achieve this goal will depend on how these engage the politics of autochthony, one of the dominant modes of thought of our times.

This mode of thought finds expression in the columns of mainstream public intellectuals in the Netherlands and on Sint Maarten who talk about the loss of ‘authentic culture’ and the cultural alienation of the autochthons. The loss is blamed on the onslaught of globalization, both from within and from without. The intellectuals on the right blame the working class newcomers (Third World globalization agents from within), while those on the left favor presenting us with a secret complot of North American capitalists pulling the strings of the Bush regime (the First World globalization agents from without). It is an odd combination, surreal, but it is one that is effective in a time of anti-Americanism and anti-multiculturalism.

Mainstream public intellectuals in the Netherlands enjoy the respect of the masses as well as the elite. Think of Paul Scheffer, Bas Heijne, Jan Mulder, and Theo van Gogh.[i] Many Dutch people eagerly read their columns, which are increasingly spiced with autochthony. Their success has to do with the fact that those who write well are highly regarded, the vast majority of the Netherlanders can claim to be autochthon, and the idea that Holland is the most tolerant of all Western countries is well ingrained in the minds of most. Many autochthons have imbibed the idea that the US could learn a thing or two from the Dutch, and not the other way around. Unable or unwilling to see the strong economic links between the US and the Netherlands, sentiments of anti-Americanism can proliferate without a sense of hypocrisy. It can be found in the left and in the right of the political spectrum. To strengthen their cause of anti-Americanism, which they equate with anti-capitalism, leftist intellectuals appeal unwillingly to the idea of Dutch exceptionality. Conservative intellectuals appeal to this same idea to warrant their appraisal of working class newcomers. Newcomers should thank God that they have the privilege of living among the tolerant Dutch. They should shed their cultural expressions as soon as possible and become like the Dutch. Newcomer intellectuals such as Ayaan Hirsi Ali who sing praise to this supposed beacon of enlightenment strengthen their sense of Dutch exceptionality.[ii] It is almost a caricature when one observes leftists intellectuals countering those on the right by claiming that it is an aberration of the spirit of Dutch culture to be so intolerant towards newcomers.

The same division between conservative and leftist intellectuals is discernible on Sint Maarten. Leftists cry ‘shame on America,’ adding that the representatives in The Hague and Brussels are also puppets of global capitalists. Sint Maarten will not be healthy until it severs its ties with the Netherlands, joins the bandwagon of Third World states resisting capitalism, and salvages its true ‘autochthon soul’. Those on the right care little about global dynamics, blaming the working class and upper class newcomers for corrupting society. The autochthons are undergoing a process of cultural alienation, becoming strangers in their own country, and therefore they need to assert their right before all his lost. As is the case in the Netherlands, mainstream intellectuals on the left as well as on the right appeal to autochthony. Read more

ISSA Proceedings 2014 – Toward Polylogical Analysis Of Argumentation: Disagreement Space In The Public Controversy About Fracking

Abstract: This paper offers a new way to make sense of disagreement expansion from a polylogical perspective by incorporating various places (venues), players (parties), and positions (standpoints) into the analysis. The concepts build on prior implicit ideas about disagreement space by suggesting how to more fully account for argumentative context, and its construction, in large-scale complex controversies.
Keywords: argumentation, controversy, deliberation, disagreement space, fracking, polylogue.

1. Introduction
Deliberation in the contemporary globalized, mediated environment presents an opportunity for reflecting on method in argument analysis. As we have argued before (Lewiński & Aakhus, 2014), one key conceptual issue is this: while multi-party and multi-position argumentation (polylogue) is prevalent, the analytic apparatus in argumentation studies tends toward dialectical analysis of dyadic disagreements. Such an analysis is posited on a set of often tacit assumptions about argumentation: it typically takes place in a fixed and definable setting where two parties (proponent vs. opponent) exchange reasons and criticisms in order to justify (or refute) some standpoint over which they disagree. Argumentation is thus presumed to be a communicative activity which expands along the lines of a disagreement space co-constructed by the two parties through their argument-relevant speech acts (see Jackson, 1992; van Eemeren et al., 1993, pp. 95ff.).[i]

In this paper, we propose how to make sense of disagreement expansion from a polylogical perspective by incorporating various places (venues), players (parties), and positions (standpoints) into the analysis. We use a case about transporting oil by train drawn from the broader controversy about extraction of shale gas and oil resources using hydraulic fracturing (“fracking”), to which various players (e.g., companies, federal regulators, local communities, environmentalists, professional associations) contribute their conflicting views and arguments. In this way, the controversy develops as a polylogue, which is discourse (logos) among many (poly), that is, a dia-logue more complex than simple dialogue (discourse between two) typically used to model and analyze argumentation (Lewiński, 2014). The paper contributes to argumentation theory by developing polylogical analysis, which is important for advancing understanding of large-scale, multi-party argumentation (Aakhus & Lewiński, 2011).

2. Argumentation analysis of public controversies over energy production
To see how the dyadic assumptions about argumentation hide the polylogical character of disagreement expansion in public controversies, we consider some analyses of argumentation over energy production, as it is a constant source of contemporary public controversy. The economic, social, political, and environmental impacts of various technologies (coal, natural gas, oil, nuclear power, hydropower, wind and solar energy, etc.) are hotly debated between all the parties involved: from producers, distributors, state regulators, environmental groups, consumers, to local communities affected by energy production. Read more

ISSA Proceedings 2014 – Conductive Argumentation, Degrees Of Confidence, And The Communication Of Uncertainty

Abstract: The paper argues that there is an epistemic obligation to communicate the appropriate degree of confidence when asserting conclusions in conductive argumentation. Contrary to the position of some theorists, we argue that such conclusions frequently are, and should be expressed with appropriate qualifications. As an illustration, we discuss the case of the Italian scientists tried for failing to convey to the public appropriate warnings of the risks of the earthquake in L’Aquila.

Keywords: conductive argumentation, judgment confidence, expression of uncertainty

1. Prologue
On April 6, 2009, a magnitude 6.3 earthquake struck L’Aquila, Abruzzo, resulting in considerable devastation and the death of 300 people. Seven Italian officials and scientists were subsequently put on trial for manslaughter. The accusation was that scientists presented incomplete, inconsistent information which falsely assured the public and caused the deaths of 30 residents. The usual practice when an earthquake was likely was for residents to sleep outside, but it was alleged that because of the assurance, these individuals remained in their houses and were killed in the quake (Ashcroft 2012). The prosecution argued that the assessment of risk communicated to the public was unjustifiably optimistic and that lives could have been saved had people not been persuaded by the assurances to remain in their houses (Hooper 2012). In 2012, the scientists were found guilty of manslaughter and sentenced to six years in prison.

We will return to this case later. We have no intention to try to evaluate its merits, but we shall examine the issues it raises regarding the obligation to communicate an appropriate degree of certainty or uncertainty in one’s judgments. Read more

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