ISSA Proceedings 2006 – Resort To Persuasive Authority: The Use And Abuse Of Legal Argument In Political Discourse

• by: Sheila J. Kindred - Saint Mary’s University & Hugh M. Kindred - Dalhousie University

1. Introduction: Debating the Invasion of Iraq in the United Kingdom Parliament
Politics engages the art of persuasion, for which laws may be called in aid, but the desire to persuade must not overreach sound legal opinion. In particular, politicians who use legal arguments for more than rhetorical dressing must be convincing by legal standards. A spectacular example of the resort to legal advice in order to sustain a political decision was the UK government’s justification, made in the British Parliament, for its invasion of Iraq in 2003. In our paper we will use this example to investigate the role of sound legal argument for the democratic process alongside the dangers of flawed legal argumentation in support of the politics of persuasion.
The UK government set a novel precedent in engaging in a public debate in the House of Commons whether the United Kingdom should use armed force against Iraq. Never before had a legal opinion of the Attorney-General been made available to the public; typically the counsel of the government’s legal advisor is confidential. Never before had the UK government’s intention to make war been subjected to debate by the public’s elected representatives in Parliament; in the past the government has always decided matters of peace and war. Here then was a transparent use of law in political discourse.
The question of the legality of the proposed invasion was crucial. In taking the advice of Lord Goldsmith, the Attorney-General, Prime Minister Blair appears to have sought to lead the government and the country to act within the law, but whether that actually was the case became part of the parliamentary debate.

2. The Government’s Motion
The British government’s position was publicly presented in a motion before the House of Commons on 18 March 2003, very shortly before the invasion of Iraq began. The motion first took note of four essentially factual premises regarding Iraq’s obligations under UN Security Council resolutions and its continuing breach of them. Its central portion stated that the House:
notes the opinion of the Attorney General that, Iraq having failed to comply and Iraq being at the time of Resolution 1441 and continuing to be in material breach, the authority to use force under Resolution 678 has revived and so continues today; believes that the United Kingdom must uphold the authority of the United Nations as set out in Resolution 1441 and many Resolutions preceding it, therefore supports the decision of Her Majesty’s Government that the United Kingdom should use all means necessary to ensure the disarmament of Iraq’s weapons of mass destruction. (House of Commons Hansard, 18 March 2003, col.760)

The remaining clauses of the motion concerned support for British troops on duty in the Middle East, post invasion plans for the rebuilding of Iraq politically and economically and finally commendation for the “Quartet’s roadmap”, a proposed blue print for bringing peace to Israel and Palestine and to the wider Middle East.
Assuming for present purposes that the factual assertions about Iraq’s continuing breach of its legal obligations were correct, the Attorney-General’s reading of the relevant UN resolutions provided the legal basis for the UK’s determination to use force against Iraq. This deconstruction of the motion before the House of Commons shows that the legal opinion of the Attorney-General was a central element in the UK government’s policy towards Iraq. The motion expressly invited the House to support the government’s decision to invade Iraq in the belief this was an appropriate exercise of legal power. Read more

ISSA Proceedings 2006 – An Ideal Of Reasonableness For A Moral Community

• by: Ana María Vicuña Navarro - Pontificia Universidad Católica de Chile

1. Summary
In this paper I intend to explore the relationship between the pragma-dialectical ideal of reasonableness and the educational objective of providing the framework for a moral education that overcomes ethical relativism. Crucial in this direction is Ernst Tugendhat’s (1988) concept of a “moral community”, as the community of all people who decide to understand themselves as moral persons. I shall contend that the best and proper way to foster the development of a moral community lies in the Philosophy for Children concept of a “community of inquiry”. I have discussed earlier (Vicuña, 1999) the important role that Philosophy for Children can have in achieving this purpose. Now, I shall explore further the important function that learning to argue in a rational and reasonable way has in the building of such a community. Finally, I shall argue that following the pragma-dialectical ideal of reasonableness and the rules for a critical discussion in the teaching of argumentation will provide the necessary grounds for building this moral community of universal mutual respect.

2. Introduction
In order to illustrate the problems presented by a relativistic approach in the field of ethical education, I would like to propose two examples of the kinds of controversy that involve ethical related issues in Chile:
(1) To the question whether Pinochet should be brought to trial for the crimes against human rights committed under his regime, there are two opposing standard ways of answering:
A) Yes, because he said that not even a leaf would move under his rule without his knowing about it, so he must have known about those crimes and, since he had all the power, he must be considered responsible for them. Those crimes should be punished. Therefore, Pinochet should be brought to trial, so that he can be punished.
B) No, because he is an old and sick man and his memory are weak. Therefore, he is no longer able to defend himself. Bringing to trial an old and sick man, unable to defend himself, is against Chilean law, and also against human rights. Therefore, even if Pinochet were guilty, he should not be brought to trial.

(2) To the question whether the “pill for the day after” should be freely distributed in public hospitals to any woman who asks for it, there are also two opposing standard answers:
A) Yes, because every woman is free to decide whether she wants to become pregnant or not. The pill is an emergency contraceptive that can avoid unwanted pregnancy when accidents have created the possibility of pregnancy. Therefore, the “pill for the day after” should be freely distributed in public hospitals to any woman who asks for it.
B) No, because the pill is abortive, abortion is a crime and crimes should be prevented. Public hospitals would become accessories to crime, if they distributed the pill. Therefore, the “pill for the day after” should not be distributed in public hospitals.

There are, of course, many other examples of ethical controversies in which we can distinguish the same kind of opposition between two irreconcilable views. Some of them have to do with euthanasia, homosexual marriage, abortion law, neo-nazis’ right to free association, and so on. The awareness of the difficulty of settling these issues in a way that satisfies everyone may lead to skepticism and relativism.
Among the Ancient Greek thinkers the observation that there can be opposite views on almost any subject led to the rise of skepticism. In the sixth century before our era, Xenophanes questioned the existence of any criterion of true knowledge and claimed that if, by chance, a man came across the truth, he would be unable to distinguish it from error. According to Leo Groarke (1990, p. 33), “… Xenophanes seems to be the first to invoke the contrast between opposing points of view [to question the possibility of knowing the truth].” In his criticism of the current views about the gods, Xenophanes claimed that if oxen and horses could draw, they would make their gods in their own likeness, and he also remarked that while Aethiopians had gods with snub noses and black hair, Thracians had gods with grey eyes and red hair. Groarke (1990, p. 33) adds:
Given such antitheses, Xenophanes concludes that no one can know clear truth, and that conjecture (dokos) is wrought over all things (frag.34). According to Sextus [Empiricus], he compares the search for truth to a search for gold in a dark room because one cannot know when one has found it. (AM 7.52)
Other forerunners of Greek skepticism are the sophists Gorgias, who expressed doubts about the possibility of existence, knowledge and communication, and Protagoras, whose saying: “Man is the measure of all things” introduced relativism, stating that there is no absolute knowledge and that each man’s views are equally valid versions of what is going on. Read more

ISSA Proceedings 2006 – Talking At Cross Purposes: Violating Higher-Order Conditions With Oppositional Arguments

• by: John Rief - University of Pittsburgh

Imagine walking into a room and preparing to watch a policy debate between two teams, one affirming and one negating a particular topic. The debaters participating have been instructed to debate about whether or not the United States should accede to the Kyoto Protocol, thereby implementing massive reductions in fossil fuel emissions throughout the country. The first team stands up and defends Kyoto, claiming that global warming threatens global biodiversity. After a brief transition, the second team responds by claiming this debate is really just a hallucinatory intellectual game that undermines personal agency and real world activism. Instead of answering the arguments in favor of Kyoto, they criticize the forum as bereft of real world benefit and as a distraction from engaged citizenship. The first team stands up and in an effort to regain control over the discussion proclaims that these arguments have noting to do with the topic at hand and are violations of the norms established for the debate, one of which is a direct discussion of the topic from opposing viewpoints. The rest of the debate centers on whether the rules are a necessary precursor to the activity and whether or not the individuals sitting in judgment of this debate have the right to vote in favor of arguments that are irrelevant to the discussion at hand. While this seems like a peculiar situation it is one that plays out at almost every major national intercollegiate policy debate tournament throughout the United States every year. This paper is an attempted response to these episodes of argumentation rooted in a discussion of argumentation theory and debate practice.

1. Normative Pragmatics
The pragma-dialectical approach to argumentation, developed by Fans H. van Eemeren and Rob Grootendorst (1984; 1992; 2004) is a normative and descriptive model for the reconstruction of argument and a corrective for problematic argumentative techniques. An important entailment of subscribing to this method is the belief that argumentation’s telos is the reconciliation of differences through the use of a particular normative model coined by Eemeren and Grootendorst (2004) as “critical discussion.” While they admit that argument often does not follow the norms they establish for critical discussion, they contend that as a heuristic for understanding argument and the ways in which argument might be improved, the critical discussion offers insightful and crucial illumination. Eemeren and Grootendorst (2004) suggest that in the pragma-dialectical approach to argument, the rules developed, “are not algorithmic, but heuristic” and that argumentation is, “not a mechanical process but a social activity aimed at convincing others of the acceptability of a standpoint by removing other people’s doubts” (p. 35).
Primary to the development of their model of critical discussion is the notion that certain “higher-order conditions” must be at play in order to allow for true reconciliation among opposing parties (Van Eemeren, Grootendorst, Jackson, and Jacobs, 1993, p. 30; Van Eemeren and Grootendorst, 2004, p. 189). These higher-order conditions create the grounds for symmetrical engagement based on removing the power and privilege commonly associated with particular identities and institutional dynamics in society (Van Eemeren et al. 1993, p. 33; Van Eemeren and Grootendorst, 2004, p. 189). In addition, these conditions work to produce the psychological orientation critical for the proper functioning of the practical rules for argumentative discussion (Van Eemeren et al., 1993, p. 32; Van Eemeren and Grootendorst, 2004, p. 189).
In developing this cooperative telos for argumentation, pragma-dialectical theorists have suggested that the empirical study of argument in practice is essential both from theoretical and pedagogical points of view. As an exercise in what they call “normative pragmatics” (Van Eemeren et al., 1993, p. 2; Van Eemeren and Grootendorst, 2004, p. 9-11) these theorists look for examples of speech acts which bring into existence episodes of argumentation. Accordingly, case studies can help to teach students of argument how the critical discussion operates as a normative ideal and practical method of dispute resolution. The analysis of particular episodes of argument, especially those that might be seen as anomalous, can help to reveal the benefits of accepting the critical discussion as a modus operandi for mediating disagreements. Van Eemeren and Grootendorst (2004) suggest that empirical analysis, especially aimed at, “research on the question of to what extent ordinary language users in everyday contexts really tend to resolve their differences of opinion by means of the kind of discussion favored by dialecticians” (p. 31) is crucial.
As an example of scholarship rooted in normative pragmatics, this paper is an attempt to utilize innovative practices in the American intercollegiate academic debate community as a means to problematize the role of critical discussion in mediating disputes.[i] While the debate community may not represent argument in the “every day” sense as described above, this community is constantly engaged in the development and (re)negotiation of argumentation and, for this reason, represents an essential empirical example for argumentation theorists. Developments in the debate community illustrate that in certain circumstances, higher-order conditions become the object of discussion themselves perhaps undermining their unquestioned normative function. In these disputes, intercollegiate academic debaters appear to talk at cross purposes, one side highlighting the benefits of traditional approaches while the other claims that these traditions should be rejected or revised. This intervention into both debate practice and argumentation theory will begin with a description of the claimed inter-subjectively agreed upon norms of academic debate. Next, an evaluation of the connection between the norms of debate and the notion of higher-order conditions is undertaken in order to parse out two primary contributions this paper hopes to make to the pragma-dialectical approach and argumentation theory generally:
(1) that the norms and rules established in the notion of the critical discussion can become the object of argumentation without undermining the resolution of disputes, and,
(2) that the practice of debate can and should provide empirical grounding for the development of argumentation theory. Read more

ISSA Proceedings 2006 – Manoeuvring Strategically With Rhetorical Questions

• by: A. Francisca Snoeck Henkemans - University of Amsterdam

1. Introduction
In this paper I investigate what role the stylistic device rhetorical question can play in arguers’ attempts to reconcile their rhetorical with their dialectical aims by manoeuvring strategically when carrying out particular discussion moves that form part of the dialectical procedure for resolving a dispute. The research I shall report on here, forms part of a larger project in which insights from classical rhetoric, pragmatics and modern stylistics are used to explore the possibilities for strategic manoeuvring with specific presentational means.[i]
Authors who have paid attention to the role of rhetorical questions in argumentative contexts, such as Slot (1993: 7) and Ilie (1994: 148) ascribe two main functions to rhetorical questions: they are used as a means of putting forward standpoints and as a means of putting forward arguments. Another function of rhetorical questions is mentioned by van Eemeren, Houtlosser & Snoeck Henkemans (2005): according to these authors rhetorical questions can also be analysed as proposals for a common starting point in the opening stage of a discussion. In this paper, I will concentrate on two of the three abovementioned functions of rhetorical questions: proposing a common starting point and putting forward argumentation. I shall first give an analysis of the way rhetorical questions can fulfil these functions, and then establish what dialectical and rhetorical goals might be served by executing the moves in question by means of a rhetorical question instead of by some other presentational means. Finally, I shall give an indication of how the types of strategic manoeuvring that rhetorical questions can be instrumental in may derail, and in which violations of the rules for critical discussion such derailed manoeuvrings may result.

2. Rhetorical questions in the opening stage and argumentation stage
According to the model for critical discussion, the argumentation stage of the discussion should be preceded by a dialogue in the opening stage by means of which the parties come to an agreement on which propositions they will regard as common starting points during the discussion. The dialectical profile that van Eemeren, Houtlosser and Snoeck Henkemans (2005: 112) have sketched for the opening stage, specifies which moves of the discussants may contribute to achieving the aim of establishing in advance what will be the common starting points for the discussion. According to the profile, the dialogue about the starting points starts with a proposal by one party to the other party to accept a certain proposition as a shared starting point. The other party can accept or refuse this proposal, or accept it only on condition that some other proposition will also be accepted as a starting point for the same discussion.
Van Eemeren, Houtlosser and Snoeck Henkemans point out that it is unlikely that in practice parties will execute the opening move of the starting point dialogue by means of a fully explicit proposal to accept some proposition. Arguers can, however, implicitly make such a proposal, and one way of doing this is to ask a rhetorical question (2005: 115). A rhetorical question is a stronger sign that the arguer is making a proposal to accept a starting point than an ordinary question about the other party’s beliefs. This is so because with a rhetorical question the addresser indirectly makes it clear that a preparatory condition for a proposal has been fulfilled, namely that the addresser thinks that the other party will be prepared to accept the proposition that functions as the presupposed answer to the question. Also, by asking a rhetorical question, the arguer shows that he himself believes that the proposition he proposes to the other party is indeed acceptable, which means that the sincerity condition for a proposal has also been fulfilled. Let us look at an example:
(1) I don’t see why Google’s rent-a-book program would not work. Isn’t it true that libraries do not have many of the popular titles even if they are bestsellers?

The only sign that the arguer is making a proposal is the form of the rhetorical question, but in fact the arguer is making an assertion in which he presents the acceptance of the proposal as unproblematic.[ii] According to van Eemeren, Houtlosser and Snoeck Henkemans (2005: 121) this is the general pattern with rhetorical questions that are being used to make a proposal to accept something as a common starting point.
Similar analyses of the function of rhetorical questions are given by other authors. Ilie (1994), for instance, also describes rhetorical questions as attempts by arguers to arrive at the same commitments:
The addresser’s commitment to the implicit rhetorical answer is indicated by his/her conviction that there is no other possible answer to the rhetorical question. The addresser’s expectation is to induce the same commitment in the addressee. (217).

And Rohde (2006), believes that a shared commitment by the discourse participants is a condition for felicitous rhetorical questions:
To be felicitous, rhetorical questions require that discourse participants share a prior commitment to similar, obvious, and often extreme answers. As such, rhetorical questions are biased, yet at the same time uninformative. Their effect is to synchronize discourse participants’ commitments, confirming their shared beliefs about the world (135). Read more

ISSA Proceedings 2006 – Informal Fallacies As Inferences To The Best Explanation

• by: A. J. Kreider - Miami Dade College

All who teach logic are familiar with informal fallacies such as ad ignorantium (appeal to ignorance) and ad populum (appeal to popularity). While it is easy to give clear examples of poor reasoning of this sort, instructors are also cognizant of what might be called “exceptions”: when it is legitimate to appeal to popularity or to an absence of evidence. Specifying the differences between fallacious and legitimate reasoning in these cases is not obvious. The view I defend here is that appeals to popularity and ignorance (and some other fallacies) should best be viewed as instances of abductive reasoning, or inferences to the best explanation. Thus, determinations of whether these types of arguments are good ones will rest on the criteria that determine good reasoning for abductive arguments generally[i]. As such, determination of whether instances of ad populum and ad ignorantium are indeed fallacious will be decidedly informal.

1. Ad Ignorantium
To begin, let’s look at ad ignorantium in more detail. It is fairly standard to characterize appeals to ignorance as inferring from a lack of evidence for a claim, that the claim is false (or conversely, inferring from a lack of evidence for the negation of a claim that the claim is true). It is not difficult to find examples of such fallacious inferences. Instructors discussing God’s existence will find this student argument familiar:
1. There is no evidence that God exists.
Therefore, God doesn’t exist.

That such arguments are fallacious is fairly straightforward. However, this is not the end of the matter for appeals to ignorance, for it is also not difficult to find examples of appeals to ignorance which seem reasonable; so reasonable, in fact, that it would be irrational for a person not to form beliefs on the basis of the lack of evidence. For instance, it is completely reasonable for me to form the belief that there is no tiger in the room, when my sole reason for having this belief is that there is no evidence of a tiger in the room. Merely remaining agnostic as to the existence of a tiger in the room (were the question posed) would be evidence of a defect of reason. To make things a bit more relevant, this argument seems at least reasonable.

1. Since the time of the coalition invasion of Iraq in the spring of 2003, no evidence of weapons of mass destruction has been found.
Therefore, at the time of the coalition invasion of Iraq in the spring of 2003, there were no significant weapons of mass destruction in Iraq.

How, then, to account for this apparent difference between legitimate and illegitimate appeals to ignorance? Oddly, many textbooks say nothing at all on the matter. Those that do ground the difference in one of two ways: they claim either that there are contextually-dependent pragmatic considerations that can justify appeals to ignorance, or that some appeals to ignorance have suppressed premises that, if made explicit, make it clear that the inferences are justifiable.
Concerning the first explanation, it is claimed that there are some cases such that the consequences of failing to believe truly (or believing falsely) are so dire that a lack of evidence can justify forming the belief (or at least acting as though one had the belief). Taking an example from Douglas Walton’s book, Informal Logic, not having evidence that a gun is not loaded is reason to presume that it is loaded, given the possible negative consequences of being mistaken as to its not being loaded. Similarly, in legal proceedings, it might be reasonable to presume innocence from a lack of evidence of guilt, given the moral cost of restricting the rights of innocent people. Read more

ISSA Proceedings 2006 – Citizenship Education And The Teaching Of Argumentation In Schools

• by: Sharon Jessop - University of Strathclyde

The concept of citizenship is one which is currently being scrutinized, debated and revised nationally and internationally. An apparent disengagement from civic society and a breakdown in the sense that we share certain unifying values have contributed to a crisis of legitimacy in governments. Along with these general trends, the two factors of globalisation and immigration have led us to ask questions about the nature of citizenship. Maria van der Hoeven, the Dutch Minister for Education, in a speech given during the Dutch presidency of the European Union in 2004 stated that the lack of a sense of citizenship among people is the ‘largest social problem we are facing’. She went on to argue that the fast pace of change – social and technological – has outstripped the family’s ability to educate citizens, requiring ‘additional efforts on the part of society… to define and further social cohesion’ (Hoeven, 2004). These thoughts are echoed in many countries by people right across the political spectrum. As a result of these trends and ideas, citizenship education has, in the last decade, become one of the most researched, debated and legislated areas in education.
There are a number of different approaches being taken to citizenship education. These differences can be characterised in various ways. David Kerr’s international comparison focused on the degree to which national values are expressed and prescribed was used to distinguish between different educational policies (Kerr, 1999, p. 5). In a report for the European Commission, published last year, a three-way distinction was made between different schools of thought on civil society: as associational life (Putnam), as the good society (Keane) and as the public sphere (Habermas). Maria van der Hoeven’s statement reflects one dominant approach in giving to citizenship education the task of defining and furthering social cohesion. She cites the American Pragmatist, Robert Putnam, in justifying the construct of citizenship with which her government was working. This construct is based on the notion of social capital – bonding and bridging – the development of identity in relation to one’s immediate community and in relation to other communities. I wish to argue that an alternative conception of citizenship in terms of human well-being elevates the status of argumentation skills, as a fundamental aspect of citizenship, to a constituent part of well-being, rather than a strategic instrument or civic competency by means of which we may achieve social cohesion.

The theoretical basis of this preference draws on the Capability Approach as developed by Martha Nussbaum and Amartya Sen (see, for example, Sen, 1985; Nussbaum & Sen, 1993). This approach addresses the need for a normative account of human well-being for the formation and assessment of national and international policies. Rejecting the relativism of neo-liberalism and drawing on a modified Aristotelian essentialism, the capability approach asserts that there are features of humanness lying beneath local traditions and differences and the identification of these features is achieved by participatory dialogue. The recognition of these ‘parts of the story’, as Nussbaum calls them, gives us the starting off point for thinking about and planning for human well-being. Nussbaum lists ten of these features which map on to human freedoms or capabilities. The one feature which is architectonic -that is, it gives distinctively human structure to the other parts of the story – is what Nussbaum calls ‘affiliation’ which corresponds to Aristotle’s category of association and living together and fellowship of words and actions (Nussbaum, 1993, p. 246). The ability to argue well, taken in the broadest way this may be understood, is a specific human capability which realises affiliation.
I have said that within the various discussions on education for citizenship there are significantly different conceptions of purpose. The exposure of these conceptions in terms I outline above is important because in one view the teaching of argumentation is instrumental – and so limited in its scope. In another view – the teaching of argumentation is connected to an understanding of human well-being – and so not limited in its scope to the achievement of an extrinsic end, the details of which are set by industry or a particular political system or government. I advocate the explicit teaching of argumentation in the curriculum and that a conception of citizenship which is based upon ideas of human well being first and foremost is most conducive to the success of learning to argue well. Read more