ISSA Proceedings 2014 – The Symbolic Meaning Of Radbruch’s Formula; Statutory (Non-)Law And The Argument Of Non-Law

• by: Marijan Pavčnik - Faculty of Law, Poljanski nasip, Ljubljana, Slovenia

Abstract: Statutory “law” that “intolerably” (Radbruch) violates supra-statutory law is non-law. The content of the argument is not based on eternal and unchangeable natural law that positive law should conform to, but upon the fundamental (human) rights that prevail in a historical period. In the modern state the catalogue of fundamental (human) rights is so extensive that it offers a sufficiently broad basis for the removal of any legal incorrectness (including statutory non-law). Thus, the argument of non-law also has great symbolic value. It persuades us that legal thought should always make sense.

Keywords: legal positivism, Radbruch’s formula, the argument of non-law, the symbolic meaning of Radbruch’s formula, legal sense, sense of justice, mutuality, coexistence.

1. Radbruch and his formula
One of the most penetrating critiques of legal positivism is the so-called Radbruch formula. Already at the beginning of his theoretical path, Radbruch (Gustav Radbruch, 1878-1949) was aware “that it equally belongs to the concept of right law that it is positive as it is the duty of positive law to be right as to content” (Radbruch, 1914: 163, and 1999: 74). The basic characteristic of Radbruch’s legal-philosophical thought was that, as a Neo-Kantian, he accepted value-theoretical relativism and advocated the standpoint that legal values cannot be “identified” (Germ. erkennen), but only “acknowledged” (Germ. bekennen) (Radbruch, 1914: 22, 162, and 1999: 15).[i]

An inevitable consequence of value relativism is that the sovereignty of the people and democracy are the central characteristics of the rule of law. The content of law has to be decided in a democratic, responsible and tolerant way. In the paper Der Relativismus in der Rechtsphilosophie (Relativism in Legal Philosophy), special importance is assigned to tolerance: “Relativism is general tolerance – just not tolerance of intolerance” (Radbruch, 1934: 21). Read more

ISSA Proceedings 2014 – Ethos And Authority Argumentation: Four Kinds Of Authority In Medical Consultation

• by: Roosmaryn Pilgram - Department of Speech Communication, Argumentation Theory and Rhetoric, University of Amsterdam, The Netherlands

Abstract: The authority that the patient ascribes to the doctor in medical consultation influences the way in which this consultation proceeds. In an argumentative discussion, this ascribed authority can affect the acceptability of the doctor’s argumentation. To analyse a doctor’s authority argumentation in medical consultation, I shall make a fourfold analytical distinction between ways in which authority can influence the outcome of an argumentative discussion.

Keywords: Authority argumentation, doctor-patient consultation, ethos, pragma-dialectics

1. Introduction
In medical consultation, a patient typically requests a medical consultation to have his health problem diagnosed by the doctor and, based on this diagnosis, to obtain medical advice. By his request, the patient indicates that he does not know what is the matter with him, how serious his health problem is, or how to best handle this problem, but trusts that the doctor knows this – or can refer him to a specialist based on a medical examination. The patient, thus, ascribes authority on his health problem to the doctor.

The authority ascribed to the doctor influences the way in which the consultation proceeds. The patient will expect the doctor to guide, and thereby structure, the communicative exchange in order to come to an appropriate advice (or parts thereof, such as the diagnosis and prognosis). Moreover, in case of an argumentative discussion in medical consultation, the authority that the patient ascribes to the doctor can influence the acceptability of his argumentation to the patient. First of all, the simple fact that the patient regards the doctor as an authority on his health problem might be enough for the patient to accept the doctor’s argumentation about this problem. Secondly, the doctor can attempt to convince the patient of a medical advice by emphasising his expertise in the course of the consultation or by presenting this expertise as an argument in support of the medical advice. Read more

ISSA Proceedings 2014 – “Death Penalty For The Down’s Syndrome” – Polish Cultural Symbols In Discussion About IVF And Abortion

• by: Piotr H. Lewinski - Institute of Polish Philology, University of Wrocław, Poland

Abstract: A basic unit of analysis of ideological systems is a generalized axiological proposition, in which as arguments serve cultural and ideological objects, which have a culturally developed interpretation and convey the subsets of assigned values. The objective of this paper is to present how such objects constitute the base of the discourse. Analysis of chosen texts reveals, how at every stage of argumentation arguers create ideological systems by adopting different ascriptions to cultural objects.

Keywords: abortion, axiological argumentation, collective symbols, cultural objects, ideology, IVF.

1. Introduction
The discussion concerning IVF and abortion has lasted in Poland for over 20 years and it still occupies the first pages and covers of many periodicals. Both adherents of these procedures and their opponents are swing from one extreme to the other using fallacious arguments which explore collective symbols that allow the arguers to play on audience’s emotions. The stimulus for the following paper was an article under the meaningful title: “Death penalty for the Down’s syndrome” (Dueholm, 2013). The following is an excerpt of the aforementioned article:

The war against people with the Down’s syndrome (…) just because they look differently, they score lower on the IQ tests, and sometimes they have different diseases, has begun long time ago. The twentieth century has been defiled by their institutionalized extermination on a vast scale, initiated by the action of eugenicists in such ‘enlightened countries’ as the United Kingdom, the Scandinavian countries, the United States, and the most well-known and effective one – Germany.

The 1933 law of the Third Reich allowed for the sterilization of mentally disabled people of German nationality, including those with Down syndrome. Later, in the period from 1939 to 1944, disabled people were killed as part of T4. The process of their elimination began precisely from killing children. Some of them were typed ‘for termination’ by midwives, soon after their birth. Some disabled people died killed by injection, others poisoned with gas, and still others were starved to death (…)”. Read more

ISSA Proceedings 2014 – A Defense Of Taking Some Novels As Arguments

• by: Gilbert Plumer - Law School Admission Council (retired), Florida, USA.

Abstract: This paper’s main thesis is that in virtue of being believable, a believable novel makes an indirect transcendental argument telling us something about the real world of human psychology, action, and society. Three related objections are addressed: a Stroud-type philosophical objection – as well as an empirical objection—questioning the force of this kind of transcendental argument, and the objection that a version of ‘the paradox of fiction’ applies to this account.

Keywords: Currie, narrative, novels, paradox of fiction, Stroud, transcendental argument, truth in fiction

1. Introduction
This paper’s main thesis is that in virtue of being believable, a believable novel makes an indirect argument telling us something about the real world of human psychology, action, and society. This involves that believable novels are arguments, not in the sense that they are stories that explicitly offer arguments (perhaps didactically or polemically), but in the sense that, as wholes, they indirectly exhibit the distinctive structure of a kind of transcendental argument. As applied here, Stroud’s influential objection (1968) to transcendental arguments would be that from believability, the only conclusion that could be licensed concerns how we must think or conceive of the real world. Moreover, Currie holds that such notions are probably false: the empirical evidence “is all against this idea … that readers’ emotional responses track the real causal relations between things” (2011b). Finally, a version of the ‘the paradox of fiction’ pertains. Certainly, responding with a full range of emotions to a novel requires that it be believable. Yet since we know the novel is fiction, we do not believe it. So in what does its believability consist? This paper will address these three related objections.[i] Read more

ISSA Proceedings 2014 – Suppositions In Argumentative Discussions: A Pragma-Dialectical Solution For Two Puzzles Concerning Thought Experimentation

• by: Eugen Octav Popa - Speech Communication, Argumentation Theory and Rhetoric, University of Amsterdam, The Netherlands

Abstract: The practice of constructing imaginary scenarios for the sake of argument is sometimes referred to as ‘thought experimentation.’ In this paper, I employ analytical tools from the pragma-dialectical theory of argumentation in order to clarify two theoretical puzzles that have been formulated with respect to thought experimentation. I do so by analysing the place and function of argumentative moves that contain suppositions in their propositional content. Three such moves are distinguished: proposing suppositions, accepting suppositions and using suppositions.

Keywords: thought experimentation, argumentation, suppositions, pragma-dialectics, speech acts

1. Introduction
Thought experimentation is a pattern of argumentative discourse in which the speaker constructs an imaginary scenario with the aim of showing that a previously expressed opinion is unacceptable. The pattern is usually encountered in scholarly communication and unfolds along the following lines. The author begins by calling into question a theory (principle, claim etc.) that some fellow scholar accepts. Next, the author proposes that some imaginary scenario is supposed for the sake of argument. This imaginary scenario will typically contain borderline impossible events and objects. Some well-known thought experiments speak of superhuman abilities, incredibly precise mechanisms, fantastic worlds, highly improbable coincidences etc. The borderline impossibility of the described events, however, does not seem to affect the author’s argumentation. Because of what would happen in the imagined scenario, we are told, the academic theory under discussion is deemed unacceptable.

The following thought experiment has been put forward by Jackson (1986) and it is known as “Mary’s Room” (sometimes also “The Knowledge Argument”). The targeted position in this case is physicalism, a philosophical conception according to which everything is (ultimately) physical. For a physicalist, all knowledge of the world is, generally speaking, knowledge of physical particles in motion. In response to this, Jackson invites us to consider the following scenario:

Mary is a brilliant scientist who is, for whatever reason, forced to investigate the world from a black and white room via a black and white television monitor. She specializes in the neurophysiology of vision and acquires, let us suppose, all the physical information there is to obtain about what goes on when we see ripe tomatoes, or the sky, and use terms like ‘red’, ‘blue’, and so on. She discovers, for example, just which wavelength combinations from the sky stimulate the retina, and exactly how this produces via the central nervous system the contraction of the vocal chords and expulsion of air from the lungs that results in the uttering of the sentence ‘The sky is blue’. What will happen when Mary is released from her black and white room or is given a colour television monitor? Will she learn anything or not? It seems just obvious that she will learn something about the world and our visual experience of it. But then is it inescapable that her previous knowledge was incomplete. But she had all the physical information. Ergo there is more to have than that, and Physicalism is false. (p. 130) Read more

ISSA Proceedings 2014 – Obama And The 2011 Debt Ceiling Crisis: The American Citizen And The Deliberative Power Of the Bully Pulpit

• by: John L. Price - Communication Studies, University of Kansas, United States of America

Abstract: During the summer of 2011, Obama was faced with the difficult task of breaking the partisan stalemate in Congress that threatened to plunge the world into another recession. This study examines President Obama’s rhetorical strategy during the debt crisis and discusses his extensive use of the bully pulpit. This paper argues that in the case of the debt ceil crisis the bully pulpit served as a means to restore deliberation to Congress.

Keywords: [Bully Pulpit, Debt ceiling debate, Presidential rhetoric, Rhetoric].

1. Introduction
During the summer of 2011, President Obama was confronted with a debate that economists labelled as “insane” and dangerous (Jackson, 2011). The issue of raising the debt ceiling, an event that had for years been a formality, became a thorn in the President’s side that threatened the economy of not just the U.S., but the world as well. Many experts argued that if the debt ceiling was not raised it could cripple the U.S. economic recovery and plunge the world into another recession (Isidore, 2011).

During the final weeks of July the negotiations between the parties over the debt ceiling reached a breaking point, with both President Obama and House speaker John Boehner walking away from the negotiation table multiple times. Between July 19th and the 29th, at the height of the crisis, President Obama addressed the American people numerous times concerning the debt ceiling debate. During these remarks, President Obama attempted to sway public opinion in favour of a compromise between the two parties. Obama’s remarks were by all accounts successful in gaining public support; shifting public opinion away from Republicans who were viewed as hold outs on the debt ceiling (Feldmann, 2011). Citizens’ outrage over the issue went so far that many Congressional members’ offices were flooded with calls and letters about the debate (Memoli, 2011). Read more