ISSA Proceedings 2006 – A Normative Reconstruction Of Arguments From Reasonableness In The Justification Of Judicial Decisions

• by: Eveline T. Feteris - University of Amsterdam

1. Introduction
In the law arguments from reasonableness play an important role. Judges often refer to reasonableness in ‘hard cases’ where there is a tension between the requirement of formal justice to treat like cases alike and the requirement of equity (or substantial justice) to do justice in accordance with the particularities of the concrete case. In such situations judges often use an argument from reasonableness to justify that an exception should be made to a general rule for the concrete case. However, the question arises how judges must account for the way in which they use their discretionary space in a situation in which they depart from the literal meaning of a general rule and establish the meaning of the rule for the concrete case on the basis of considerations of reasonableness and fairness. The central question I will answer in this paper is what an adequate justification based on an argument from reasonableness exactly amounts to from the perspective of the application of law in a rational legal discussion.
Although arguments from reasonableness are considered to be an important form of argumentation to defend a judicial decision in a hard case, in the legal literature little attention has been paid to the standards for argumentation underlying the justification of such a decision. Insight into such standards is important from the perspective of the rationality of the application of law because only on the basis of such standards it can be established whether the judge has used his discretionary power in an acceptable way. In order to establish the standards for an adequate use of arguments from reasonableness, I will develop an argumentation model that can be used for the analysis and evaluation of arguments from reasonableness.
In this paper I will proceed as follows. First in (2) I will discuss the legal background of the use of arguments from reasonableness and fairness and I will establish under what conditions they form an acceptable justification of a judicial decision. Then, in (3) I will develop an argumentation model for the analysis and evaluation of legal arguments from reasonableness to be able to make the underlying choices and assumptions explicit. In (4) I will apply this argumentation model to an example from Dutch law in which this form of argumentation is used and establish in what respects it can be considered an acceptable contribution to a rational legal discussion.

2. The role of arguments from reasonableness in a legal discussion
Judges use an argument from reasonableness to justify that in a concrete situation an exception should be made to a legal rule to avoid an unacceptable result. The need for an argument from reasonableness for this purpose can already be found in the classical literature with Aristotle who claims that an argument from ‘equity’ can be used as an argument to make an exception to application of a universal legal rule in a concrete case if this would yield un unacceptable result. A judge is allowed to correct the law on the basis of ‘equity’ if it would be unjust because of its generality. According to Aristotle, in such cases equity amounts to justice to correct the injustice that would be caused by strict application of a universal rule in a concrete case.[i]
A similar view is defended by Perelman (1979) who argues that the requirement of reasonableness is a requirement for the judge to apply the law in a just way, that is the requirement to treat like cases alike und unlike cases differently. This may result in an obligation for the judge not to apply a legal rule if application would be incompatible with the rational goal of the rule. A rational legislator can never have intended that a rule would be applied that would lead to a result that would conflict with the goal of the rule. Read more

ISSA Proceedings 2006 – Visual Arguments In Film

• by: Jesús Alcolea-Banegas - Universitat de València

1. Introduction
New developments in the study of the argumentation have been addressed to extend to contexts beyond those with which it was initially preoccupied. One significant point has been the recognition that important realms of argument exist outside the verbal and written arguments. One of these is found in the visual argumentation. In this context, Birdsell and Groarke (1996) defend that some visual images are arguments, but of a non-propositional kind. Blair (1996) maintains that images can have propositional content and qualify as propositional arguments, since the propositions and their argumentative functions are expressed visually. The controversy affects to the paradigm of arguments as verbal entities, a paradigm which is centred on arguments understood as products that people do when argue. This is the logical dimension of argument. But we may consider the rhetorical dimension that allows us to understand the process of arguing as a natural process in the persuasive communication.

In our opinion, that controversy is unnecessary. We assume that some images function as arguments intended to persuade viewers. As our concern is cinema, we think that the contextual factors, the filmmaker’s aims and characters’ emotions are crucial for determining the meaning of visual arguments in film and eventually for persuading audience to accept the thesis the filmmaker wanted to establish. We know that rational argument is not omnipotent. The power of persuasion which this argument possesses might be impressive, but inferior to the direct force of images. Vision and images go together in allowing this driving force. According to Gorgias, our spirit is moulded even in its character through vision, “for the things we see do not have the nature which we wish them to have, but the nature which each happens to have; through sight the soul is impressed even to its core” (2003, p. 82). As Carl Theodor Dreyer (1999, pp. 60 and 90) used to say, cinema is a visual art and images reach viewer’s consciousness easier than words. Images have a great influence on our state of mind, and filmmakers cause emotions and passions with the intention of touching us. Read more

ISSA Proceedings 2006 – The Risk Of Arguing From Persuasion To Dissuasion

• by: J. Francisco Álvarez - Universidad Nacional de Educación

Bounded rationality theories are essentially characterized by incorporating limits of knowledge, resources and time as a central feature of the conditions in which we adopt our decisions. Connections between advanced systems of processing information and our usual manner of arguing allow us to analyze some argumentative strategies as quick mechanisms that reduce costs of information in a way that is not too different from the simple and frugal heuristics, as defended by R. Selten or G. Gigerenzer (Gigerenzer and Selten 2001; Gigerenzer, Todd, and ABC Research Group. 1999), that seem to play a salient role in the adoption of decisions in conditions of uncertainty.[i]
Taking part in an argumentative process, accepting it as a decision-making mechanism, implies taking some risks if you are not an omniscient agent. The possible dissuasive strength of argumentation arises as part of a procedural decision device and it can help us to show and account for some discursive strategies employed by agents in their argumentative activities.
Some of the problems that come into view when we try to understand polemics and types of polemics may be solved by attending to both participants’ spaces of values and the zone where these spaces overlap. A first step, an empirical one, could be to delineate the boundaries of the space of values that participants try to occupy. Their goal is not, or not only, to optimize some singular variables (such as truth, rhetoric force or consistency), but also to satisfy a set of values that they regard as important; their own authorship or agency could even be one of these values. For example, it could make a difference whether we obtain an inaction compromise from another agent after a dissuasion process (possibly including some argumentative interactions) or reach a superficially similar result after a simple refusal due to the proper conviction of the other agent.

I hope that, with some tools from ancient rhetoric, the philosophy of economics, and computer science, we can analyse, for example, the continuum between refutation and reputation (Dascal 2001, 2002; Dascal 2003) and some other non-traditional epistemological questions. There are two key ideas. First, some features of the context could generate rules. Usually, we are prone to ascribe these rules solely to the participants’ cognitive capabilities, but these rules could also be constructed as the output of the relationships themselves.  Second, we do not need to assume that participants in the dialogue are provided with absolute and common knowledge (each one knows what the others know), with all the time and all the computational capabilities possible, and both unlimited knowledge and unlimited memory store. Instead, all we need are some flesh and blood human beings in contextual interactions. Read more

ISSA Proceedings 2002 – Cases: Their Role In Informal Logic

• by: Peter D. Asquith - Michigan State University

1. Introduction
One aspect of informal logic is the attempt to apply logic to ordinary discourse.  When attempting to do this, one needs to (a) recognize/determine that an argument is present and (b) be able to reconstruct the argument from the ordinary discourse. Doing both of these might be possible by inspection, e.g., you look and you know that there is an argument and what the argument is.  Indeed, I believe that there are some simple cases or familiar situations in which this occurs.  However, it seems equally clear that there are more complex cases in which neither the recognition nor the reconstruction can be accomplished by inspection.  A review of texts shows that rules, guidelines, lists of indicators, lists of steps to be followed, flowcharts, and examples are all frequently deployed as techniques to assist the student to achieve the objectives of identification and reconstruction.  These complex cases in which these tools are to be utilized are the interesting ones, both theoretically and pedagogically.

What are the situations encountered and how does one make the necessary determinations in these more complicated cases? What I want to do in this paper is to assess the nature of the two tasks listed above, discuss the roles of several of the tools just mentioned – rules and examples,  and look at some ways of conceptualizing what is occurring. Read more

ISSA Proceedings 2002 – A Pracmatic View Of The Burden Of Proof

• by: Frans H. van Eemeren & Peter Houtlosser - University of Amsterdam

1. A dialectical profile of the division of the burden of proof
In an earlier paper, entitled ‘Strategic maneuvering with the burden of proof,’ we have explained our dialectical perspective on the division of the burden of proof in a critical discussion (van Eemeren and Houtlosser, 2002). We did so by answering a series of interrelated questions from a procedural view of critical reasonableness: Why is there a burden of proof? A burden of proof for what? For whom? What exactly does the burden of proof involve? When is it activated? What means can be used to acquit oneself of the burden of proof? And when is one discharged? Because our responses were given in a critical rationalist vein, they are attuned to resolving a difference of opinion by critically testing the acceptability of a standpoint in the most systematic, thorough, perspicuous, and economic way. In the present paper we aim to complement this approach by offering a pragmatic solution for an important problem that may arise in ‘mixed’ disputes, where opposite standpoints are put forward regarding the same issue. The problem concerns the order in which the opposing standpoints are to be defended.

Making use of an analytic tool provided by Walton and Krabbe (1995), we describe the interactional situation in which our problem arises with the help of a dialectical profile. This profile specifies the moves that are admissible when dividing the burden of proof in a mixed dispute in the opening stage of a critical discussion. The profile starts from the situation that a mixed dispute has come into being in the confrontation stage between two parties. The profile includes both possibilities: the one in which the party that has advanced a positive standpoint is challenged first to defend this positive standpoint and the one in which the party that has advanced a negative standpoint is challenged first to defend this negative standpoint. Read more

ISSA Proceedings 2002 – The Pragmatic Dimension Of Premise Acceptability

• by: James B. Freeman - Hunter College of The City University of New York

We hold that one factor determining whether or not a premise is acceptable is its cost, more precisely the cost of taking that statement as a premise.This thesis requires some clarification.When critically evaluating an argument purportedly giving us good reason to accept its conclusion, we are taking the role of a challenger in a simple dialectical exchange. The person who put forward the argument is the proponent. His role is to advance an initial claim together with reasons discharging the burden of proof making that claim itself incurs together with any burdens raised the by subsequent premises he puts forward or questions of their adequacy to support the conclusion he alleges they support. Our role as challengers is to raise those questions, to point out that there are specific burdens to be discharged or questions to be answered. We may do this overtly, if we are in a critical conversation with the proponent, or implicitly, should we be considering the proponent’s argumentation in the form of an argument as product. Here we note what burdens have been raised and whether they have been discharged. This dialectical exchange is an example of what Walton calls an asymmetrical persuasion dialogue. See (1989, pp. 11-12).
The question for us as challengers then is whether from our perspective a claim which the proponent has advanced raises a burden of proof or whether there is a presumption for it. We judge this from our perspective, since our awareness of the dialectical situation on the whole gives us information relevant to determining this issue. For example, we may be aware that a proponent’s claim is a matter of personal testimony or expert opinion in an area where the proponent has expertise. We may not be aware of any reason to hold that the proponent’s competence is questionable in this case – that he may be deceived by a perceptual illusion or that his recent scientific work has been criticized for sloppiness – or that his integrity is compromised, such as his speaking from vested interest. Depending on the statement the proponent is putting forward, such information may be germane to recognizing rightly whether we should recognize a presumption for the proponent’s claim or whether we may rightly ask him to provide evidence for it. Read more