ISSA Proceedings 1998 – ‘The Search For Grounds In Legal Argumentation: A Rhetorical Analysis Of Texas v. Johnson’

• by: Susan J. Balter - DePauw University Indiana

Legal opinions are essentially rhetorical documents: they pronounce a decision then justify that decision through a series of arguments aimed at particular audiences. Although law has often been held up as an archetype of practical argument, legal arguments must adhere to a stricter level of scrutiny then many other types of argument. Court decisions, particularly those made by the Supreme Court, are analyzed by a variety of experts, some of who have direct influence on the argument as it is being constructed (Golden and Makau, 1982: 172). These audiences constrain the possible means of persuasion which may be incorporated into the argument.
These constraints serve to limit the types of arguments which may be made in a case, the types of evidence which may be used to support the argument, and the very form that the argument may take. Despite these restrictions, legal argument is dynamic; new arguments are made and accepted, the law changes over time.
Legal argumentation covers a wide variety of issues. Each issue has a different set of questions which must be addressed by the Court when it announces a decision. Free speech cases provide a limited set of non-legal concepts which the judge may integrate into the decision. These concepts include the speaker, the speech and the audiece of the speech. These become the materials which the judge may use to overcome the constraints set on the decision by the audience. In this paper, I will examine how the Court uses the construct of audience in the Texas v Johnson case. This case reveals how dynamic legal argumentation can be, even given the strict constraints the Supreme Court must operate under.

1. Developing a Theory of Constraints
Court documents are constrained by the expectations of the audience. These constraints are not formally codified; they exist in the author’s conception of the expectations of this audience. The audience judges the correctness of a justice’s interpretation of the law, and this judgment is internalized by the author of the opinion.
James Boyd White notes, “In every opinion a court not only resolves a particular dispute one way or another, but validates or authorizes one kind of reasoning, one kind of response to argument, one way of looking at the world and at its own authority, or another” (1988: 394).
Stare decisis is the most pressing constraint on a Supreme Court judge. Golden and Makau note, “Use of stare decisis gives the court’s readers greater confidence in the Justices’ impartiality” (Golden and Makau 1982: 160).
The tapestry of the law forms the backdrop for the finding of any particular case. The author of an opinion must weave his or her finding into the cloth in such a way as not to radically disrupt the patterns which the audience has come to expect for the type of case being decided. These patterns consist of the materials which a justice may use to justify the opinion including the constitution, state law, and prior court cases. Stanley Fish provides an excellent example of a decision which would be considered a break from the pattern of the law, “A judge who decided a case on the basis of whether or not the defendant had red hair would not be striking out in a new direction; he would simply not be acting as a judge, because he could give no reasons for his decision that would be seen as reasons by competent members of the legal community” (1989: 193). Read more

ISSA Proceedings 1998 – What Are The ‘Anarchical Fallacies’ Jeremy Bentham Discovered In The 1789 French: Declaration Of The Rights Of Man And Citizen?

• by: Hugo Adam Bedau - Tufts University, Massachusetts

1. Introduction
The year 1998 deserves to be remembered for at least two different but convergent reasons. In 1748 – two and a half centuries ago – Jeremy Bentham was born in London, and half a century ago – in 1948 – the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations in New York. Thus this year we celebrate both the two hundred and fiftieth anniversary of the birth of a major English philosopher, lawyer, reformer, and public policy analyst; and we also celebrate the fiftieth anniversary of the most influential manifesto of international human rights.

The conjunction of these two events provides an occasion for reflection on some of Bentham’s views because he wrote an essay titled “Anarchical Fallacies” in which he attacked the most popular manifesto of human rights in his day, the 1789 French Declaration of the Rights of Man and Citizen. In light of Bentham’s scathing criticisms of the French Declaration, one naturally wonders what he would have had to say today were he in a position to evaluate the United Nations Declaration. Would he say of it what he said of its French predecessor, that it consists of “execrable trash,” that its purpose is “resistance to all laws” and “insurrection,” that its advocates “sow the seeds of anarchy broad-cast,” and, most memorably, that any doctrine of “natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts”?

2. Dubious Fallacies
Let us look more closely at Bentham’s argument that the French Declaration is riddled with “anarchical fallacies.” What, exactly, are “anarchical fallacies”? What is fallacious and what is anarchistic about them?
In 1824, more than two decades after he had written his essay on “anarchical fallacies,” Bentham arranged with some of his younger friends to publish (in London and in English) a volume called The Book of Fallacies. In this treatise, the first substantial contribution to the subject since Aristotle, Bentham set out an account of what he regarded as the rhetorical and logical errors to which political discourse was especially vulnerable. One would naturally expect, therefore, to find in this book an elucidation of the “anarchical fallacies” he had already discussed many years earlier in his essay of that name. Read more

ISSA Proceedings 1998 – Metaphorical Politics: Mobilization Or Tranquilization?

• by: Francis A. Beer & Christ’l De Landtsheer - University of Colorado & University of Amsterdam

Politicians tend to express themselves indirectly. Sometimes they do so because they live in a totalitarian society, in which free expression is prohibited. Political crisis and war or severe economic crisis also affect directness and explicitness of political rhetoric. Politicians in prosperous democratic society, however, also see advantages in indirect or non-literal linguistic strategies. Commercialization of society, media, and politics reinforce this trend. Floating voters form an increasing segment of the electorate and politicians want to attract these voters by means of indirect statements with limited political content.
Metaphors are a form of indirect communication that has many advantages for politicians who know how to use them and when. Why is it that metaphors are essential to political rhetoric and mass communication? What does metaphorical reasoning include? How do politicians use metaphorical reasoning? How do social scientists deal with the study of metaphors in politics?

1. Metaphorical Reasoning and Cognitive Blending
Contemporary theory and research in cognitive science have widened scientific interest in metaphors, a literary device with ancient roots. Cognitive schema theory suggests that the mind generates virtual simulations, similar to computer software programs that interpret the physical world. Appropriate external stimuli activate these internal schemata, which help us understand and react. Human action and reaction are thus mediated by schema-driven cognition. Metaphors reflect and drive these schemata. Metaphor is thus both a facet of language and a dimension of cognition.
According to traditional Aristotelian theory, metaphors were linguistic phenomena that included the substitution of one word for another. The Oxford English Dictionary seems to follow this path when it defines metaphor as “the figure of speech in which a name or descriptive term is transferred to some object of different form, but analogous to, that to which it is properly applicable” (OED 2).
Going beyond this, modern metaphorical theory has created terminology to denominate elements of the metaphorical expression. In this lexicon,(A) is the topic, tenor, or target, the ground, which is the actual subject of discussion; (B) is the source or vehicle, which is an idea from a different sphere of life, which is literally used to describe the subject (A); between (A) and (B) exists a blended space producing tension (C). The interaction between these two ideas (A) and (B) generates a new, figurative, blended meaning (C), and a new view upon the subject. Older theories of metaphorical comparison and substitution neglect (C), the value added by the fusion of (A) and (B), which is at the core of the interaction theory (Turner and Fauconnier, 1995; Lakoff and Turner 1989; Ortony, 1984). Read more

ISSA Proceedings 1998 – Practical Guidelines For Justifying Decisions About Major Projects

• by: Rinke Berkenbosch & Ingeborg van der Geest - University of Amsterdam & Delft University of Technology

1. Introduction
Quite a few American inventions have become a worldwide success: Environmental Impact Assessment (EIA) is one of them. This policy instrument was introduced in 1970 by President Nixon, through the National Environmental Policy Act. Today, EIAs are applied in almost every country in the world.
An EIA is carried out before work is started on a major project, such as the construction of a railroad, highway or airport. The purpose of an EIA is to rationalize the decision-making process involved with such a project. In order to achieve that purpose, the parties involved are obliged to follow certain rules when exchanging information. These rules can be seen as a code of conduct: they specify the rights and obligations of the project proponent, the competent authority that has to decide on the project, and the citizens and interest groups that make use of the possibility of public participation (Wood 1995, Robinson 1992).

What Environmental Impact Assessment comes down to is that the decision-making process is divided into two successive discussions.
In the first discussion, the main role is played by the project proponent, who has to draft a public document – an Environmental Impact Statement (EIS). An example of an EIS that was written in the United States is the one about a controversial plan to transform the top of Mount Graham, Arizona, into a so-called astrophysical area studded with telescopes (United States Department of Agriculture, Forest Service 1988). A Dutch EIS about a very controversial project is that concerning the extension of Schiphol Airport by means of adding an extra runway (Project Mainport en Milieu Schiphol, 1993a). In documents such as these, the project proponent has to explain his plans and indicate any reasonable alternative options for the proposed activity. Furthermore, he has to forecast and evaluate the effects of the project and of the alternative options. The project proponent’s forecasts and value judgements are not taken for granted: they have to be substantiated by arguments which support the accuracy of the predictions and the acceptability of the value judgements.
The EIS serves as the input for the second discussion, in which the competent authority takes the lead. The competent authority has to decide whether or not the project may be carried out and, if so, in what way. This means that the competent authority has to choose between the alternative options described in the EIS. The final decision is then made public in a so-called Record of Decision (ROD), which has to be supported by argumentation showing that the information provided by the EIS played an important role in the decision-making process. This argumentation is also required so that opponents of the project may challenge the decision in a court of law; to be able to criticize a decision successfully, it is necessary to know the grounds for the decision (Wood 1995: 183). Read more

ISSA Proceedings 1998 – Asymmetry In The Dialogue Between Expert And Non-Expert

• by: Frans A.J. Birrer - Leiden University

1. Introduction
This paper is about argumentation involving expertise with not all discussants being experts. This type of debate is very relevant for a field like Science & Society (which can be defined as the analysis and evaluation of the social consequences of the development and use of scientific and technological knowledge).
In the field of Science & Society, one is often confronted with argumentation patterns that would not be considered adequate in more orthodox argumentation studies. In an earlier study on discussions about the consequences and acceptability of biotechnology, my colleague Rob Pranger and I noted a number of fundamental ambiguities (Birrer, Pranger,1995). We showed that many of these ambiguities could be related to a two by two matrix of four different worldviews. The matrix was taken from cultural bias theory(i), a theory that suggests that standpoints on e.g. risk tend to cluster in four types, each with a different way of interpreting the same data; although in many cases one would say that a balance of the various aspects would be most appropriate, worldviews tend toward polarisation rather than mutual understanding and compromise. We also showed how these different, worldviewbased interpretations, and the resulting ambiguities in communication between adherents of different worldviews, could be related to different views on where the burden of proof should be put.
In the present paper, discussion between participants with unequal relevant expertise will be subjected to a more theoretical analysis. We will trace some fundamental difficulties that such discussions are facing. The conditions under which dialogue and argumentation with unequal expertise are conducted are in some respects crucially different from cases where there is no such inequality. Consequentially, the rules of the game must be different too. We will examine the way in which expert statements are treated in the literature, in particular the work of Douglas Walton(ii), and suggest some extensions of the category systems that can be found there.

2. The model of information seeking dialogue
The exchange between expert and non-expert is characterised by Walton at various places as an ‘information seeking dialogue’ (e.g. Walton,1995; Walton,Krabbe,1995). The non-expert asks the expert for certain information, and the expert provides this information. In this type of dialogue, there is a basic asymmetry between the participants (Walton,1995: 113).
Let us test this characterisation as ‘information seeking dialogue’ on a simple case of expert advise: that of a single client and a single expert adviser. The client has a problem, and in order to be able to deal with this problem in the most adequate way, the client needs advice from an expert. Let us say that the client wonders whether a computer might be helpful in his(her) situation, and wants to know what would be the most useful hardware and software in this situation. The client turns to a computer expert for advice. The expert will now inquire about the nature of the practices of the client that might be relevant. Since the expert does not have direct access to this information, the expert is dependent upon the information that is selected by the client. But the client is not by itself able to make a fully adequate selection, for what is and is not relevant depends upon the technical options, and the client has no knowledge about that. Read more

ISSA Proceedings 1998 – Walton’s Argumentation Schemes For Presumptive Reasoning: A Critique And Development

• by: J. Anthony Blair - University of Windsor

1. Introduction: Walton’s account
In this paper I first sketch Douglas Walton’s account of argument schemes for presumptive reasoning (Walton, 1996). Then I outline some of what I think is missing from the account as presented by Walton. Last, I propose ways of filling in some (not all) of those missing pieces. The sketch of Walton’s account will occupy the rest of this introductory section. I should make it clear at the outset that what inspires this paper is admiration for Walton’s project. Although I think his account is incomplete, and I disagree with some details, I believe that the study of argumentation schemes is important, and that Walton’s approach is fruitful and suggestive. In the book under examination (Walton, 1996), Walton restricts his discussion to argument schemes found in presumptive reasoning. He takes presumptive reasoning to be typified by the pragmatic, “rough and ready generalizations,” of practical reasoning (reasoning about what to do); it is the “plausible reasoning” for which Rescher provided a calculus in his Plausible Reasoning (1976). A model for presumptive reasoning is default or non-monotonic reasoning discussed in computer science.

Central to Walton’s account is his analysis of presumption. He presents presumption as related to, but distinct from, burden of proof. On his analysis, it is that move in a dialogue which lies between assertion (which incurs the burden of proof) and assumption (which carries no burden whatever). A presumption so conceived has practical value by way of advancing the argumentation, and, in accepting something as a presumption, the interlocutor assumes the burden of rebutting it. Thus a presumption shifts the burden of proof, and this function is at the heart of Walton’s analysis. Presumptions come into play in the absence of firm evidence or knowledge, which is why they are typically found in practical reasoning. Presumptive reasoning, in sum, “is neither deductive nor inductive in nature, but represents a third distinct type . . ., an inherently tentative kind of reasoning subject to defeat by the special circumstances (not defined inductively or statistically) of a particular case” (Walton 1996, 43).
For Walton, argument schemes are structures or “forms” of argument which are “normatively binding kinds of reasoning” and are “best seen as moves, or speech acts” in dialogues (Walton 1996, 28). They are normatively binding in the sense that in accepting premises organized in a “genuine” scheme “appropriate” to the type of dialogue in process, one is bound (in some way) to accept the conclusion drawn from them, provided the “critical questions” that are “appropriate to” that scheme are answered satisfactorily (Walton 1996, 10).
Walton postulates that the validity of an argument scheme is contextual: a function of the context of dialogue in which it is used in a given case. Remember that the aim of argument in presumptive or plausible reasoning is to shift the burden of proof in a dialogue (not to prove a proposition with a given degree of probability or plausibility). Whether a scheme succeeds in shifting the burden of proof depends on whether the scheme is valid (for the occasion of its use) and on whether the members of a set of “critical questions” associated with it either have been answered affirmatively earlier in the dialogue or can be later if they are raised. Read more