ISSA Proceedings 2006 – Legal Argumentation, Constitutional Interpretation, And Presumption Of Constitutionality

• by: Virgílio Afonso da Silva - Professor at the Faculty of Law, University of São Paulo

Abstract: Constitutional interpretation is a very complex task. The main reason underlying this complexity is the open and abstract language of constitutional texts, mainly when it concerns their bill of rights. And when it comes to judicial review of legislation, constitutional interpretation becomes even more complex. Not only the constitution but also ordinary legislation has to be interpreted so that their compatibility can be properly analysed. Although this scheme represents common sense among constitutional scholars, the arguments used in the judicial review are the subject of fierce disputes. The aim of my paper is to analyse one of these arguments, which is frequently employed in Latin American constitutional adjudication: the presumption of constitutionality. I will argue that this kind of presumption entails many problematic issues of which constitutional scholars in Latin America are often unaware. Roughly speaking, these problematic issues can be of two types:
(1) Formal argumentation problems – concerning above all the relationship between presumption and time, as well as between presumption and proof; and
(2) Constitutional theory problems – concerning some consequences of the presumption of constitutionality in the separation of powers.

1. Introduction and definitions
In legal argumentation, presumptions often play an important role. Presuming something to be true under given circumstances – above all when it is difficult or impossible to discover the real truth – is a strategy which has been used in legal argumentation and legal decision ever since the Roman Law. Although the idea is ancient and appears, at least at first sight, quite straightforward, there is no real consensus on its precise definition and on the situations in which presumptions can be used. As will be shown further on, these two variables – definition and applicability – are of great importance to the subject of this paper, the presumption of constitutionality.
Presumptions are usually defined as the acceptance of something as true given certain conditions. But this is not enough, since it is crucial for the concept of presumption to define whether and – if it is the case – how a presumption can be defeated. In legal systems based on the Roman Law tradition, it is common to speak of two kinds of presumptions: the so-called presumptions iuris tantum and the iuris et de iure. Presumptions of the first kind can be defeated while presumptions of the latter cannot. For the aims of this paper, presumptions iuris et de iure are of no importance, since the constitutionality of an enacted law cannot be exempt from a possible defeat, at least in those countries where there is some kind of judicial review of legislation.[i] For presumptions iuris tantum, the presumed fact should be considered true unless stringent evidence to the contrary is introduced to the argumentation. In this sense, it can be said, as a preliminary working definition, that one is facing a presumption (iuris tantum) if, given certain conditions, something shall be considered true, unless there is stringent evidence to believe the contrary.
In her logic formalisation of presumptions, Edna Ullmann-Margalit (1983, 147) includes only the first part of my definition, leaving aside the reference to the evidence and to the possibility of defeat. She represents presumptions through the following formula: pres (P, Q), where P stands for the presumption-raising-fact and Q for the presumed fact. This means “P raises the presumption of Q” or “[t]here is a presumption from Q that P” (1983, 147). Nevertheless, when it comes to an explanation of the “presumption rule”, her idea is completed in the following terms: “Given that p is the case, you (= the rule subject) shall proceed as if q were true, unless or until you have (sufficient) reason to believe that q is not the case.” She calls this last part of the rule the “rebuttal clause” (1983, 149).

A more complete formalisation of the idea of presumptions can be found in Daniel Mendonca (1998, 408). According to him, the formula of presumption should take the following form: [Pro (P) & ¬Pro (¬Q)] → O Pres (Q). This means that proven that P is the case – Pro (P) – and not proven that Q is not the case – ¬Pro (¬Q) – it is then obligatory to presume Q. The importance of Mendonca’s formulation lies in its emphasis on the necessity of proving something in order to rebut a presumption. This necessity will be explored further on (see section 2.3). Read more

ISSA Proceedings 2002 – Preface

It is with great pleasure that the planning committee of the Fifth Conference of the International Society for the Study of Argumentation (ISSA), which was held in Amsterdam in 2002 (June 25-28), presents all interested students of argumentation now with the Proceedings of this Conference.

We are sad that, due to his untimely death in 2002, this time Rob Grootendorst, who was a member of our team at all four previous ISSA Conferences, is no longer among the editors of the Proceedings. However, we are happy that Francisca Snoeck Henkemans was willing to take his place and join the editorial company. In honor of all the important work the late Rob Grootendorst did to stimulate and promote the study of argumentation, these Proceedings are dedicated to his memory.

It is our emphatic opinion that the Proceedings of the Fifth Conference include a great number of very interesting papers. They are written from a variety of perspectives and theoretical backgrounds. Besides philosophical, theoretical and empirical papers, there are, for instance, papers that deal specifically with public argumentation or with legal argumentation and there are also a number of case studies. Among the general topics that are treated are, as always, the fallacies, the teaching of argumentation, and argumentation in the media, but studies of linguistic aspects of argumentation and artificial intelligence are also represented. The Proceedings of the Fifth ISSA Conference reflect the richness of the contributions that were made to the Conference.

Since the First Conference in 1986, the ISSA Conferences in Amsterdam have become an important meeting-place for argumentation scholars from different disciplinary fields and with a great variety of interests. The number of participants has increased over the years, and so has the number of countries that are represented. We are convinced that the Fifth ISSA Conference has been as fruitful and stimulating as we hoped it would be. In our opinion, the average quality of the papers and the intellectual exchanges has reached a very high level. We hope that these Proceedings will prove our point to the readers. All the papers submitted for publication were reviewed by the editors. In some cases, this has led to further improvements. Despite the fact that we intended to publish Proceedings that provide a comprehensive and representative overview of the conference as a whole, only those papers were accepted that met our quality standards.

It goes without saying that the editors could only accomplish their task in such a short time because they received a lot of help from others. In the process of preparing these Proceedings, just as during the Conference itself, they were able to rely on the assistance of the faculty members of the Department of Speech Communication, Argumentation Theory and Rhetoric of the University of Amsterdam and other members of the research group ‘Argumentation in Discourse’ of the Amsterdam School for Cultural Analysis (ASCA).
It seems only fair, however, to mention one name in particular: Bart Garssen. We are grateful to Bart for his technical assistance in getting the manuscripts ready for publication. Thanks to his help. We are also able to include a CD-rom containing the electronic versions of the papers.

For financial and other kinds of assistance we are grateful to the Royal Netherlands Academy of Arts and Sciences (KNAW), the Dutch-Belgian Speech Communication Association (VIOT), the Amsterdam School for Cultural Analysis (ASCA), and, last but not least, the International Center for the Study of Argumentation and Speech Communication (Sic Sat).

Amsterdam, December 10, 2002
Frans H. van Eemeren, University of Amsterdam
J. Anthony Blair, University of Windsor
Charles A. Willard, University of Louisville
A. Francisca Snoeck Henkemans, University of Amsterdam

ISSA Proceedings 2002 – Table of Contents

Table of Contents ISSA Proceedings 2002 – work in progress

Frans H. van Eemeren, J. Anthony Blair, Charles A. Willard (eds.) – Preface
Alan W. Aldrich – Considering Culture In The Analysis Of Arguments
R. P. Alford – Leff’s Account Of The Aristotelian Roots Of The Boethian Theory Of Dialectical Reasoning: A Contemporary Reconsideration
Ruth Amossy – The Argumentative Dimension Of Discourse
Richard Andrews – Argumentation In Education: Issues Arising From Undergraduate Students’ Work
Constantin Antonopoulos – On The Use And Misuse Of Analyticity In Arguments
Satoru Aonuma – The Constitution, Critical Rhetoric, And Public Argument: The Case Of Democratic Japan
Peter D. Asquith – Cases – Their Role In Informal Logic
Albert Atkin & John E. Richardson – Constructing The (Imagined) Antagonist In Advertising Argumentation
Txetxu Ausín & Lorenzo Peña – Arguing From Facts To Duties (And Conversely)
Kevin T. Baaske & Patricia Riley – In Defense Of The Realm: Administrative Responses To Anti-Globalization Argumentation
Michael Baker, Matthieu Quignard, Kristine Lund – UMR 5612 GRIC, Groupe de Recherches sur les Interactions Communicatives, Équipe Interaction & Cognition, C.N.R.S. & Université Lumière Lyon 2 & Marije van Amelsvoort – Department of Educational Sciences, Utrecht University – Designing – A Computer-Supported Collaborative Learning Situation For Broadening And Deepening Understanding Of The Space Of Debate
Susan Balter-Reitz – She Blinded Me With Science: Material Argument In The Indianapolis Children’s Museum
Gregory Bassham  – Linked And Independent Premises: A New Analysis
Shawn Batt – The National Education Reform Debate And The Rhetoric Of The Contrarians
Sandra Bégoin-Augereau & Josiane Caron-Pargue  – Linguistic Criteria For Demarcation And Hierarchical Organization Of Episodes In A Problem Solving Task
Hilde van Belle – Two Ways Of Analysing A ‘Light Mix’ Newspaper Article
Keith Berry –  Cut-Ups, Slams And Jabs: Verbal Aggressiveness Or Politeness?
Stefano Bertea – Legal Argumentation Theory And The Concept Of Law
Barbara A. Biesecker – Technologies Of Truth And National Trauma:  Revisiting The Enola Gay Controversy
Frans A.J. Birrer – Expert Advice And Discourse Coupling: Context-Dependent Valdation Of Model-Based Reasoning
V. William Balthrop & Carole Blair – – Discursive Collisions: A Reading Of  “Ellen’s Energy Adventure”
J. Anthony Blair – The Relationships Among Logic, Dialectic And Rhetoric
George Boger – Formal Logic’s Contribution To The Study Of Fallacies
Lilit Brutian – On The Pragmatics Of Argumentative Discourse
Andrew J. Burgess – Religious Argument As Enthymeme: Aristotle, Paul, And Anselm
Ann E. Burnette & Wayne L. Kraemer – Making The Case For War: Bush’s Rhetorical Validation Of America’s Action

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ISSA Proceedings 2002 – Considering Culture In The Analysis Of Arguments

• by: Alan W. Aldrich - Central College, Pella, IA 50219

The study of arguments within the pragma-dialectic program (Eemeren & Grootendorst, 1992) removes arguments from their situated contexts (e.g. Eemeren, Grootendorst, Jackson, & Jacobs, 1994, pp. 60-89) in order to present them as a series of opposing standpoints designed to press towards a resolution within the framework of a critical discussion. Maximal Dialectic Analysis (MDA) is a technique used to reconstruct arguments and identify missing premises that relies on Grice’s (1975) system of interpretation based upon the Cooperative Principle (CP) and Conversational Maxims of Quantity, Quality, Relation, and Manner. The CP requires speakers to: “Make your conversational contribution such as is required, at the stage in which it occurs, by the accepted purposes or direction of the talk exchange in which you are engaged” (p. 45). Quantity Maxims require interlocutors to be as informative as is necessary (for the purposes of the exchange) but to not be over or under-informative. Quality Maxims require speakers to say what they believe to be true and to not say that which they have reasons to believe might be false. The Relation Maxim requires speakers to be relevant. Unlike the first three maxims that deal with content, the Manner Maxims are concerned with how an utterance gets expressed. Speakers are expected to say things in ways that are clear, concise, orderly, and to the point.

According to Brown and Levinson (1987), the CP provides “an ‘unmarked’ or socially neutral (indeed asocial) presumptive framework for communication” (p. 5) that emphasizes rational efficiency above deviations without principled reasons. Deviations are identified by the utterance’s distance from the CP and conversational maxims. Principled reasons for violations of the CP and Maxims become resources for alternative interpretations that move beyond the literal surface meanings of the utterance while serving to repair the deviations from the CP and Conversational Maxims.

The Gricean framework as a set of guiding principles seems well suited for MDA analysis of arguments made by a variety of people in a variety of situations (Eemeren, Grootendorst, Jackson, & Jacobs, 1994). However, MDA has paid attention to the maxims of quantity, quality, and relation at the expense of the manner maxim (Aldrich, 1995). How interlocutors make an utterance carries interpretive weight in addition to what is said. For this reason, analysts using MDA must be responsive to the manner maxim if overly charitable or less than charitable interpretations are to be avoided (Aldrich, 1995). Read more

ISSA Proceedings 2002 – Leff’s Account Of The Aristotelian Roots Of The Boethian Theory Of Dialectical Reasoning: A Contemporary Reconsideration

• by: R. P. Alford - University of New Mexico

This paper is an attempt to call attention to the need for a reconsideration of the evolution of the concept of dialectic that took place between the time of Aristotle and Boethius. The central allegation of the paper is that Anicius Manlius Serverinus Boethius was a central figure in the development of a formalised concept of the dialectic, one that was far from Aristotelian. This perspective on the dialectic was made possible through Boethius’ reinterpretation of the dialectical topoi. The key evidence for this shift provided in the paper is the refutation of the presentation of the Aristotelian dialectic as being a theory of proofs. Rather, Boethius successfully convinced many contemporary authors, including Leff, that this interpretation was Aristotle’s own.

The point of departure for the paper is Leff’s stance on the Boethian theory of the commonplaces (1974, 1978, 1983), which was focused on the rhetorical topoi. The aim of the paper is to demonstrate that a focus on the evolution of the rhetorical topoi does not allow for an adequate evaluation of the way in which Boethius’ works affected the medieval understanding of the dialectic. Rhetorical theorists have failed to note how Boethius catalysed an important shift in the relationship between dialectical theory and the theory of the analytic demonstration, which subsequently affected the relationship between dialectical and rhetorical theory.

The importance of demonstrating the origin of the trend towards the conflation of the theories of dialectic and analytics is of more than merely historical interest. This is because of the fact that Boethius’ work provides an example of one of the first instances of an attempt to create a hierarchy between theories of argumentative justification. A reconsideration of the way that Boethius attempted to reconstruct dialectical disputation as an attempt to produce proofs might allow those interested in the reconciliation of rhetorical and dialectical approaches certain critical insights. The recognition of the importance of Boethius in the history of the medieval dialectical might allow these theorists to more forward towards a reconciliation that might do justice to both traditions of argumentation theory. Read more

ISSA Proceedings 2002 – The Argumentative Dimension Of Discourse

• by: Ruth Amossy, Tel Aviv

The study of argumentation is often restricted to discourses clearly meant to persuade or, in Perelman’s terms, to gain “the adherence of minds” to a given thesis (Perelman, 1969, 14). In this view, it mainly deals with arguments’ building and refutation. According to van Eemeren and al.’s definition, “argumentation is a verbal and social activity of reason aiming at increasing (or decreasing) the acceptability of a controversial standpoint for the listener or reader, by putting forward a constellation of propositions intended to justify (or refute) the standpoint before a rational judge” (1996, 5). This delimitation of argumentation’s scope allows for a clear-cut definition distinguishing argumentation from other kinds of verbal activities. However, it also narrows its field by exclusively concentrating on discourses that have an explicit argumentative aim, thus ignoring the argumentative dimension of texts that are not immediately meant to persuade, like news reports in the media, testimonial writing, novels, etc.

I adopt the stand according to which discourses focusing on non argumentative aims – providing factual information, for example, or creating a fictional world  –belong to the realm of persuasion insofar they try to orient the audience’s ways of seeing and judging the world.  In Grize’s terms: “In the common meaning, to argue is to provide arguments, thus reasons, for or against a thesis […] But it is also possible to conceive of argumentation from a broader perspective and to understand it as a process that aims at exerting an influence on one’s opinion, attitude, even behavior. It is however important to insist on the fact that the means are discursive” (Grize, 1990, 41; my translation). In this perspective, I have slightly amended Perelman’s basic definition by adding that in argumentation, verbal means are used not only to make the addressee adhere to a thesis, but also to modify or reinforce his representations and beliefs, or simply to orient his reflexion on a given problem (Amossy, 2000, 29). Read more