ISSA Proceedings 2002 – Legal Argumentation Theory And The Concept Of Law

• by: Stefano Bertea - University of Edinburgh , Faculty of Law

1. Premise
There has been wide recognition over the last three decades that argumentation plays a pivotal role in shaping the law, since practically any stage of what is ordinarily considered the legal domain involves recourse to reasoning[i]. Legal scientists put forward interpretive statements: they propose what they see as reasonable interpretations of laws and defend these interpretations with arguments. Both of these tasks requires reasoning. Lawyers, when they bring cases to court, must do more or less the same (even if the aims here are more specific and concrete): they interpret general norms and precedents, qualify concrete cases and offer reasons in support of their conclusions. Judges decide cases, an activity which makes it necessary to find and sometimes reconstruct the rule of law, interpret rules and apply them to concrete circumstances, weigh principles, settle conflicts between norms encased in the same legal order, follow precedents, ascertain and qualify facts, determine the most reasonable solution to the case at hand, and put forward justifications for their decisions. All such operations are argumentative. And lastly, in a constitutional democratic state the legislators, too, will tend to offer reasons backing their deliberations, so to make these last more easily acceptable to the people they govern. In doing so even the legislators accept to take part in the game of argumentation.

Clearly, these types of reasoning differ markedly from one another: some are aimed at finding solutions; others are intended to enable making a choice among competing interpretations of norms, qualifications of facts, or decisions of cases; and others still are designed to uphold a point of view and show it to be reasonable. But they have a general feature in common in that they are all deliberative procedures and so not entirely rule-bound. In other words, reasoning and argumentation in law differ from a mere subsumption of concrete facts under general rules. It is precisely because legal argumentation is not entirely deductive that it warrants careful investigation and has attracted the attention of several researchers in different fields of study. Legal scholars, philosophers and argumentation theorists have shown in recent years a growing interest in legal reasoning[ii]. They have been concerned with legal reasoning at different levels of abstraction: philosophical, theoretical, methodological, empirical and practical[iii]. We owe it to their effort if legal argumentation is “no longer considered as merely a part of a broader field of research, but as an object of study it its own right” (Feteris, 1999, 13). In this essay, argumentation in law is approached from a particular perspective, that of jurisprudence. More specifically, the aim here is to make explicit the implications which the recent development of studies in legal reasoning carries for the concept of law. Read more

ISSA Proceedings 2002 – Technologies Of Truth And National Trauma: Revisiting The Enola Gay Controversy

• by: Barbara A. Biesecker - University of Iowa

It is often said that the close of the forty-four day Gulf War marked the end of one era and the beginning of another. According to then President George Bush, Operation Desert Storm effected the radical transformation of the national political imaginary by finally putting to rest the ghost of Vietnam. According to General Schwarzkopf, leader of the UN alliance, it signified a dramatic revolution in the telos of military engagement along the lines laid down in the Weinberger Doctrine: “we are [no longer] in the business of killing”  (Gusterson: 51). And according to Jeffrey Records, a military analysist, it set a wholly new and impossible standard by which all subsequent U.S. military interventions will be measured: “If pre-Desert Storm U.S. military force planning was haunted by the disastrous legacy of Vietnam, post-Desert Storm planning will be plagued by the specter of falling short of the splendid and relatively painless performance of U.S. forces in the Persian Gulf in 1991”  (Dauber: 158).

Like their fierce ideological opponents, a host of cultural theorists and critics agree that the Gulf War is to be understood as having ushered in new era. However, considerably less than convinced that the operation was as bloodless as the government and media would have the public believe, they claim that Operation Desert Storm delivered not a new kind of warfare but, instead, a new rhetoric of war whose strategically selected images and carefully crafted discourse worked together to literally ‘de-humanize’ the cost of war. In a military conflict between the U.S., its allies, and Iraq that Anthony Giddens has described as “the most heavily mediated, reflexively organized war in human history” (Shaw and Carr-Hill: 2), human suffering and the loss of life that is the inevitable price of war was almost altogether absent. For the general public, these scholars rightly insist, the Gulf War was a war without bodies – a technological exercise executed not by men but by machines whose “surgical” “smart bombs” took out “units” not enemy soldiers, a war during which, as Paul Virilio terms it, “the aesthetics of disappearance” (11) entailed the violent erasure of both allied forces and enemy casualties alike. In short, with the Gulf War we entered what cultural critic John Taylor has deftly called the era of “’derealization’, the era when the objects of violence in warfare are grouped together in fields that are rendered abstract” (158) so as to make war appear more humane to the viewing and voting public. Read more

ISSA Proceedings 2002 – Expert Advice And Discourse Coupling: Context-Dependent Valdation Of Model-Based Reasoning

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

Abstract
Expert judgements often involve a coupling of different discourses, in the sense that conclusions from one discourse are transferred to another. Results from one scientific field are brought together with results from other scientific fields, and are applied to yet another field, namely that of a practical problem at hand.
As far as significant uncertainties are involved (as is almost always the case in practical problem solving), the validation within these different discourses may be very different. Sciences differ in the way claims are validated. Even much more significant differences are involved in the transfer to practical problem solving, since accepting or rejecting assumptions depends upon the consequences of whether these assumptions will later turn out to obtain or not.
I propose to explain some very common patterns of incomplete or fallacious reasoning in expert advice, patterns that involve implicit shifts of the burden of proof, as failures to notice these differences in validation context. Furthermore, I suggest that by taking into account the possible consequences of making a certain assumption (and also the evaluation of those consequences) the quality of discussions involving expert advice can be considerably improved.

1. What is so special about expert advice?
Expert advice plays a prominent role in contemporary (western) societies. Consultation of experts has become custom for almost any significant decision beyond the personal sphere (and even in the personal sphere a host of counselors is ready to offer its services). It has been known for a long time that this dependency raises a number of questions (Benveniste,1972; Fischer,1990). Is expert advice always directed at the common good? Have experts not become an elite that has taken over much of the effective decision making power from those who should legitimately make the decisions? Has the involvement of experts not resulted in a bias towards technocracy and reductionism? Has it not reinforced forms of bureaucracy?
From the point of view of argumentation studies, involvement of expert advice also introduces specific problems. A non-expert appealing to expert opinion cannot take full responsibility for its adequacy. The non-expert is principally incapable to check every link in the expert’s reasoning chain. This “black box” aspect implies a quality control problem: on what grounds can the non-expert assume that the expert’s opinion can be trusted? As far as the matter is beyond the arguer’s cognitive competence, the non-expert arguer has to resort to some kind of source credibility argument. And this directly leads back to the general questions concerning expert advice mentioned before.
These questions concerning the reliability of expert advice have become increasingly pressing since it became clear that the quality of expert advice is not only threatened by simple inaccuracy on behalf of the expert, but also by the structures of power and influence in which the advisory process is embedded. Scandals of biased, partisan or even outright corrupted expertise seem to become more and more prominent (Rampton,Stauber,2001). Read more

ISSA Proceedings 2002 – Discursive Collisions: A Reading Of “Ellen’s Energy Adventure”

• by: V. William Balthrop - University of North Carolina & Carole Blair - University of California Davis Washington Center

Located near the center of Walt Disney World, near Orlando, Florida, is the 550-acre Epcot Center. Epcot, thematically evocative of a world’s fair (Nelson, 1986), is comprised of two major elements. The first of these is World Showcase, which includes eleven pavilions representing what the 2002 Birnbaum’s, the “official guide” to the Disney World themeparks, characterizes as “Disney conceptions about participating countries in remarkably realistic, consistently entertaining styles. You won’t find the real Germany here; rather the country’s essence, much as a traveler returning from a visit might remember what he or she saw” (Safro, 2001, 135). The second, and more important part of Epcot for our purposes, is Future World, a set of nine pavilions that thematize corporate problem-solving and technology’s contributions to major issues confronting humanity[i]. As Birnbaum’s also notes,
A mere listing of the basic themes covered by the pavilions at Future World – agriculture, communications, car safety, the ocean, energy, health, and imagination – tends to sound a tad academic, and perhaps even a little forbidding. But when these serious topics are presented with that special Disney flair, they become part of an experience that ranks among Walt Disney World’s most exciting and entertaining. (Safrom, 2001, 123)

The pavilion upon which this essay focuses is the Universe of Energy, sponsored by ExxonMobil corporation. It offers the Epcot visitor an extended “educational” message in its hybridized film/theme park ride, “Ellen’s Energy Adventure,” (“EEA”) featuring Ellen DeGeneres and Bill Nye, the Science Guy, as well as other recognizable entertainment personalities.

Our interest in “EEA” is grounded in Goodnight’s observation that,
Many forms of social persuasion are festooned with the trappings of deliberation, even while they are designed to succeed by means inimical to knowledgeable choice and active participation. The increasing variety of forums, formats, styles, and institutional practices – each claiming to embody the public will or to represent the public voice – demands careful attention. If such practices continue to evolve uncritiqued, deliberative argument may become a lost art. (Goodnight, 1982, 215) Read more

ISSA Proceedings 2002 – The Relationships Among Logic, Dialectic And Rhetoric

• by: J. Anthony Blair - Department of Philosophy, University of Windsor, Windsor, Ontario, Canada

1. Introduction
A consideration of the relationship among logic, dialectic and rhetoric was found already in the work of Plato and Aristotle and others in the first golden age of Western philosophy, and this relationship has received attention down through Western history (see the historical observations in Krabbe 2000, Hohmann 2000, and Leff 2000). The late 20th century argumentation scholarly community was reminded of its salience (see Wenzel, 1980) and has returned to its examination. In the last five years or so, a flurry of activity has raised the profile of these questions in this community, particularly with the focus on how dialectic and rhetoric and their relationships bear on the identification, interpretation and assessment of arguments and argumentation (see the special issues of Argumentation edited by Hansen and Tindale 1998, and by van Eemeren and Houtlosser 2000a).

In the English-speaking philosophical community, in contrast, there has been little attention to argumentation at all, to say nothing of the relations among logic, dialectic and rhetoric. (The work of Henry W. Johnstone, Jr. is a noteworthy exception.) However, in the last thirty years a small number of philosophers, some of whom characterize their field (for rhetorical reasons) as “informal logic,” have been working out the implications of expanding the analysis and assessment of arguments beyond the identification of the deductive or entailment relationships they might exhibit. In broadening the scope of their perspective in this way, they initially (and belatedly) recognized the bearing of dialectic (see, for instance, Blair and Johnson, 1987), and more recently, the importance of rhetoric (see, for instance, Tindale, 1999). In doing so, they raise for themselves the question of the relationship among the three.

So, under the influence of the recent attention to rhetoric and to the relation between dialectic and rhetoric by the broader community of argumentation, and also due to their own internal theoretical development, some philosophers working in informal logic have come to an interest in these issues. It is from this historical situation that my own interest in this topic arises. This paper is an attempt to come to grips with the relationship of these three fields or perspectives. To begin, I explain the senses of logic, dialectic and rhetoric used in the paper. If the paper has a thesis, part of it is that there is no one type of relationship among these three, but rather several – at least four, and there may be more. For each of these types of ways the three can be related, the question arises as to how they in fact are related. The other part of the paper’s thesis is that even for each type there is not always only one way the three are related. Read more

ISSA Proceedings 2002 – Formal Logic’s Contribution To The Study Of Fallacies

• by: George Boger - Canisius College. Buffalo

Abstract
Some logicians cite the context-relativity of cogency and maintain that formal logic cannot develop a theory of fallacies. Doing so blurs the distinction between ontic and epistemic matters and engenders a subjectivism that frustrates the project of logic to establish objective knowledge. This paper reaffirms the distinction between ontic and epistemic matters by establishing objective criteria for truth, validity, and cogency. It emphasizes the importance of the ontic notion of logical consequence underlying intelligible discourse. By clarifying a notion of fallacy it shows how formal logic contributes to fallacy theory.

1. The project of informal logic
The desire of critical thinking theorists, pragma-dialecticians, and informal logicians to dethrone formal logic has animated and defined their movement since its inception in the 1970s. In general, three matters mark their dissatisfaction with formal logic.
1. They believe that the mathematical development of formal logic has led to its becoming irrelevant to the needs of everyday discourse whose medium is natural language.
2. They maintain that it focuses too narrowly on the implicational relationships among propositions and relegates to the extralogical ‘everything else’ important to the evaluation of arguments.
3. They criticize its being asymmetrical in respect of its inability to formalize fallacious reasoning and even invalidity as it has been able to develop decision procedures for valid arguments.

Wanting to analyze informal fallacies and to develop a typology to categorize them impelled informalists to develop alternative theories of argumentation. These matters have remained core concerns for them. Two essential features of arguments underpin their complaint about the posture and project of traditional logic.
1. They take an argument to consist in considerably more than a set of propositions, where one is thought to follow logically from others. Rather, an argument consists in a set of premises that allegedly support a conclusion with an intention to change someone’s belief. An argument is a dynamic social activity. Thus, argument analysis requires recognizing the question-answer, or the challenge-response, nature of interactive dialogue.
2. They insist on the contextuality of an argument. A good or bad argument consists in its success or failure to persuade a participant of a belief or to act in a certain way. An argument is evaluated in terms of premise acceptability, premise weight and relevance, and in terms of the suitability of the inferential link between premises and conclusion, all of which are relative to persons at times. Read more