ISSA Proceedings 2010 – “The Truth And Nothing But The Truth?”: The Argumentative Use Of Fictions In Legal Reasoning

• by: Ana Dimiškovska - Ss. Cyril and Methodius University Skopje

1. Introduction: the concept of legal fiction [i]
In eighteenth-century England, as we can see from a notorious story reproduced in different contemporary pieces of writing in the philosophy and history of law (Perelman 1999, p. 63; Perelman 1974, p. 348; Friedman 1995, p. 4, part II), the provisions of the criminal law insisted on the death penalty for every culprit accused of “grand larceny”. According to the same law, “grand larceny” was defined as the theft of anything worth at least two pounds (or 40 shillings). Nevertheless, in order to spare the lives of the defendants, the English judges established a regular practice which lasted for many years, to estimate every theft, regardless of its real value, as though it were worth 39 shillings. The culmination of that practice was the case when the court estimated the theft of 10 pounds, i.e. 200 shillings, as being worth only 39 shillings, and thus revealed an obvious distortion of the factual aspect of that, as well as of many previous cases.

The said situation and the corresponding judicial solution of it represent one of the most utilized classical examples of the phenomenon of what is called “legal fiction” (or more adequately in this case, “jurisprudential fiction”). This concept designates a specific legal technique based on the qualification of facts which is contrary to the reality, that is, which supposes a fact or a situation different from what it really is, in order to produce a certain legal effect (Perelman 1999, p. 62; Salmon 1974, p. 114; Foriers 1974, p. 16; Delgado-Ocando 1974, p. 78, 82; Rivero 1974, p. 102; de Lamberterie 2003, p. 5; see also Smith 2007, p. 1437,  Moglen 1998, p. 3, part 2 A). Read more

ISSA Proceedings 2010 – Image, Evidence, Argument

• by: Ian J. Dove - University of Nevada, Las Vegas

1. Introduction
Suppose that visual argument skeptics are correct: there are no visual arguments apart from any associated verbal content. Does it follow, then, that there is no place for images in argumentation theory or informal logic? The answer to this question, I argue, is no – at least in the case of photographic images. Instead, photographic images can fill an evidentiary role in which the image acts as a verifier, corroborator or refuter of some claim within an argument. This result is satisfying in two ways. First, it makes room for images even under the most hostile conceptions of argument for visual argumentation. Second, it forms the basis of an answer to a related question in philosophy of mathematics. In philosophy of mathematics, there is a debate about the role of diagrams in mathematical reasoning. This debate, in some respects, mimics the debate about the use of visual elements in argumentation. I show that the use of images as verifiers in argumentative contexts can inform an answer about the use of some diagrams in mathematical contexts. Diagrams can verify, corroborate or refute claims in mathematical arguments.  Hence, though this doesn’t mean that diagrams are proofs, it means that diagrams can play an evidentiary role in mathematical contexts.

As a preamble to this discussion, I describe and label several positions one can take as regards visual evidence. On one end of the spectrum one finds the proponent of visual arguments. This is the position of Leo Groarke (Groarke 1996, Groarke 2002) and David Birdsell (Birdsell and Groarke, 1996, Birdsell and Groarke 2007). The proponent takes visual arguments to be no less legitimately arguments than any verbal arguments. For example, Groarke offers a poster from the University of Amsterdam as a putative visual argument (Groarke 1996, p. 112). Regarding the argumentative status of the poster, Groarke is unequivocal. He writes, “From the point of view of logic, the poster is something more than a statement, for it visually makes the point that the University of Amsterdam’s chief adminstrators are all men, to back the intended claim that the university needs more women.” (Groarke 1996, p. 111) A proponent of visual argument, then, takes the resources needed to analyze visual arguments to include logic broadly construed. Groarke doesn’t limit the analysis and evaluation of visual argumentation to just the rhetorical powers of images; though he doesn’t neglect these either. Instead, the proponent as I envision him or her, thinks that argumentation includes visual elements in the most robust forms possible. Therefore, Argumentation Theory and Informal Logic ought to expand to account for these visual elements explicitly. Read more

ISSA Proceedings 2010 – Didactical Arguments And Mathematical Proofs

• by: M. Dufour - Sorbonne Nouvelle, Paris

There seems to be a mismatch between the classification of arguments given by Aristotle at the beginning of the Sophistical Refutations and some influential contemporary theories of argument for they do not pay much attention to a whole kind of Aristotelian arguments, namely didactical arguments.

An explanation could be that didactical arguments are implicitly included in these theories. But if you grant that didactical arguments differ from dialectical arguments in many respects and if you consider that for these theories the very notion of argument is dialectical, this interpretation of the demise of didactical arguments is not very plausible unless it results from equivocation on the word “dialectical”.
After a review of Aristotle’s classification we shall examine these theories to see if they are well suited to accommodate the kind of argument Aristotle called didactical.

1. Aristotle’s four arguments
In the Sophistical Refutations (II, 165a-b) Aristotle claims there are four kinds of διαλέγεσθαι λoγων, an expression generally translated by “argument (or reasoning) involved in a discussion”. This expression can also be interpreted simply as “dialogue” or “dialectic”, taken in the broad sense of “talking together”. Although Aristotle neither uses the word “syllogism” nor “enthymeme” it seems reasonable to agree with the translation using the word “argument” since the Philosopher stresses that these discourses have premises. And it is these premises which make the main difference between the four kinds of argument. In short:
Dialectical arguments are rooted in an endoxa, a common opinion.
Critical arguments start from premises accepted by the answerer but also granted by the arguer for his discourse aims at “showing that he [the arguer] knows”.
Eristic arguments reason from premises that appear to be generally accepted but are not so. Read more

ISSA Proceedings 2010 – Bi-Logical Analysis Of Arguments In Political Propaganda: The Case Of The Chilean Press 1970-1973

• by: Claudio Durán - York University

This paper is an attempt to bring together ideas discussed in several papers that I have read in conferences of the International Society for Studies in Argumentation and the Ontario Society for Studies in Argumentation (Durán 2007, 2008 and 2010). Its main thrust is the view that the study of argumentation should include the analysis of emotional, physical and intuitive arguments as well as logical ones. However, this paper concentrates on the contribution that the psychoanalytic theory of Bi-Logic has to offer for the study of argumentation.

I begin this paper by summarizing the main aspects of my research on the propaganda of agitation developed by the Chilean daily newspaper El Mercurio of Santiago against the government of Salvador Allende (1970-1973). A fully developed account of this study appears in my 1995 book (Durán 1995), and a summary of it was published in the Proceedings of the Sixth Conference of the International Society for the Study of Argumentation (Durán 2007). In essence, El Mercurio represented the interests of powerful enemies of Allende that felt threatened by his government, from the Chilean upper classes to the United States’ government and some influential multi-national corporations. The purpose of the propaganda of El Mercurio was to undermine the Allende government by instilling fear and hatred in the middle classes and the military so that a coup d’état could be staged. This happened on September 11, 1973 followed by a military dictatorship of 16 years led by General Augusto Pinochet. Read more

ISSA Proceedings 2010 – The Extended Pragma-Dialectical Argumentation Theory Empirically Interpreted

• by: Frans van Eemeren, Bart Garssen & Bert Meuffels - University of Amsterdam

1. The analytical status of the notion of ‘strategic maneuvering’
The notion of strategic maneuvering, introduced by van Eemeren and Houtlosser, is basically an analytic concept enabling a more refined, accurate and comprehensive account of ‘argumentative reality’ than can be achieved by means of the existing, purely dialectical tools of canonical, standard pragma-dialectics (van Eemeren & Houtlosser, 1999b, 2000, 2002a, 2000b; van Eemeren, 2010). With the help of the notion of strategic maneuvering it becomes possible to reconstruct argumentative discourse as it occurs in practice in such a way that not only the dialectical dimension pertaining to its reasonableness is taken into account, but also the rhetorical dimension pertaining to its effectiveness (van Eemeren, 2010). In sum, in the extended pragma-dialectical approach incorporating the theory of strategic maneuvering the standard analysis of argumentative discourse is systematically enriched with the use of rhetorical insight.

The extended pragma-dialectical argumentation theory in which classical and modern rhetorical insights are integrated in the existing pragma-dialectical tools for reconstruction – i.e. resolution-oriented reconstruction – offers in the first place analytical instruments for analysing and evaluating argumentative discourse. It is not an empirical model of the various ways in which ordinary arguers try to achieve effective persuasion within the boundaries of dialectical rationality.[i] Read more

ISSA Proceedings 2010 – Argumentative Topoi For Refutation And Confirmation

• by: Anders Eriksson - Örebro University

Long lists of topoi fill the manuals of classical rhetorical theory. There are topoi for the person and topoi for the act. There are topoi for encomia and topoi for the defence. Such lists are teaching devices designed to teach students particular aspects of the art of rhetoric. The lists are numerous, each author producing his own list. Within the realm of rhetoric topoi are a repeated theme, and the discussion usually concerns which topoi best suit each particular circumstance. The topoi for argumentation are taught in the two rhetorical exercises called “refutation” and “confirmation”. This paper will focus on six topoi from these rhetorical exercises suggesting that they are better for teaching argumentation to students than some modern approaches to argumentation.

First the term topos and its relationship to argumentation theory should be explained. A topos in Greek is literally a “place” for finding arguments. The “place” is often understood metaphorically as a “place” in the mind, and topoi can refer to many different kinds of mental places. Sara Rubinelli has made a distinction among the different kinds of strategies in classical rhetoric covered by the term topos. The term can be an indicator of the subject matter the orators might take into consideration for pleading their causes. Topos can also designate a certain argument scheme that focuses on the process of inference, such as the argument from the contrary. According to Latin rhetoricians, locus communis designates a ready-made argument that can be re-used by other speakers (2006, pp. 253-272). Read more