ISSA Proceedings 2002 – E Contrario Reasoning And It’s Legal Consequences

• by: Drs. Henrike Jansen - Leiden University, University of Amsterdam

1. Introduction[i]
E contrario reasoning is the argument that says that a certain legal rule must not be applied analogically, that is to say: that the legal rule must not be applied to certain facts that are not mentioned in this legal rule. A very nice example is mentioned by Harm Kloosterhuis in his recent dissertation. The example deals with the question whether or not the legal rule that holds persons liable for damage caused by tort committed in a group may be applied to a group of dogs that have caused damage. The Court judged this analogy unsound (NJ 1996, 172; Kloosterhuis 2002, 197).
The argument is famous for it’s logical validity problem. The problem is that at the surface e contrario reasoning seems to produce the fallacy of denying the antecedent. When, in modus ponens, the first premise states the legal rule ‘if p, then q’ – the antecedent ‘p’ meaning the legal facts and the consequent ‘q’ meaning the legal consequence – and the second premise states the concrete case which does not match the legal facts – symbolised by ‘not p’ – the conclusion ‘not q’ – meaning that the legal consequence is not entailed – is a logically invalid inference.
About a decade ago, the International Journal for the Semiotics of Law published a discussion between two jurisprudential scholars about the solution for the logical problem of e contrario reasoning. In this discussion they both tried to analyse e contrario reasoning as a logically valid argument. I agree with them that it is reasonable to suppose that e contrario reasoning is logically valid indeed, because there may be good reasons not to apply a legal rule analogically in specific circumstances and in law it happens all the time without any problem. However, in this paper I want to argue that both scholars, Maarten Henket from Utrecht University and Hendrik Kaptein from the University of Amsterdam, are solving a non existent problem. The reason for this is that two different types of e contrario reasoning have to be distinguished, that have to be analysed very differently. Kaptein and Henket have confused these two types by combining features of both types in one type of argument.
My strategy is as follows. First, I will elaborate on the validity problem and show how Kaptein and Henket have tried to solve the problem. Then I will show which argument types can be distinguished as instances of e contrario reasoning. Finally, I will try to find an explanation for why it is often overlooked that two concepts of e contrario reasoning exist. Read more

ISSA Proceedings 2002 – The Dialectical Tier Revisited

• by: Dr. Ralph H. Johnson - University of Windsor

1. Introduction
Since I originally proposed that arguments require a dialectical tier, many commentators have weighed in with objections and challenges. Originally Govier (1997/98;1999), then Leff (1999/2000), Hitchcock (2000/2002, Tindale (2002/2002), Groarke (2000/2002, Hansen  (2000/2002), van Rees (2001) and Wyatt (2001) – to mention just those who have gone on record with objections to that proposal [i].
Now, here, in this auspicious setting, it does seem propitious, even incumbent upon me, to say something about how I now view that proposal, perhaps taking this opportunity to repent of my sins. For Govier has said that the requirement of the dialectical tier, as I have stated it, leads to an infinite regress – “a staircase that mounts forever” (233) which would not be a “Stairway to Heaven” but rather a descent into Hell.
I intend to take this occasion to respond to some of these objections and criticisms, as well as to share some thoughts they have set in motion. I will begin by revisiting the proposal, briefly, particularly with respect to its purpose. Since the division of labour in argumentation theory into logical, dialectical and rhetorical dimensions seems to have gained a certain level of acceptance among argumentation theorists with[ii], I have decided to use that division to structure most of my response. Accordingly, I will first look at an objection that is logical in character (that of Govier), then to one that is rhetorical (that of Leff); and finally to one that is dialectical (that of van Rees). After indicating how I propose to respond to these three objections, I want to a look at what difference the proposal makes and the broader issues it raises for argumentation theory.

2. The rationale for the proposal
The rationale for the proposal had its origins in our efforts (more than 30 years ago) to teach to logic to undergraduates in a university setting. [By “our” here I mean Johnson and Blair and other informal logicians.] We began with the tradition in which we had been raised which I have baptized FDL[iii]. According to that account, a good argument is a sound argument: an argument that is valid and all of whose premises are true. In this tradition. we find argument typically defined as: “a sequence of propositions one of which follows from the others.” We were not alone in experiencing difficulties teaching this sort of approach to logic to our students in the late 60s who demanded relevance and who wanted logic to help them appraise the arguments they came across in their attempts to deal with the issues of the day[iv]. Read more

ISSA Proceedings 2002 – Gravity Too Is Relative: On The Logic Of Deliberative Debate

• by: Christian Kock - University of Copenhagen

In current argumentation theory, the focus is not often on deliberative argumentation as such. Most modern theorists tend to see argumentation as a homogeneous phenomenon. But in recent years, there has been a tendency to differentiate more, especially in the works of Douglas Walton, who has defined different types of argumentative dialogue. However, we also need to differentiate in another way, namely on the basis of argumentative issues.
Aristotle did this when he defined the three main genres of rhetoric. And if we take a closer look at the nature of the issues in deliberative argumentation, several interesting implications will ensue. Deliberative argumentation will turn out to be at odds with assumptions widely accepted in current theories, such as pragma-dialectics and the model of “presumptive” reasoning advocated by Walton.

An essential fact about deliberative argumentation is that it is not about truth, but action. This fact has been cursorily acknowledged by some theorists, but not explored. Even Toulmin (1958), who made a strong case for distinguishing between argumentative fields, only considers arguments for claims like “Harry is a British citizen” and other constative propositions. Perelman and Olbrechts-Tyteca too fail to make a clear distinction. On the one hand, they emphasize that deliberative argumentation is “oriented toward the future” and “sets out to bring about some action or to prepare for it by acting, by discursive methods, on the minds of the hearers” (1969, 47); on the other hand, they consistently speak of “theses” presented for the audience’s assent. Characteristically, to find acknowledgement that the issues in deliberative argumentation are not propositions or theses, we must go to the textbook literature, including the work that Toulmin co-authored (1979). Educators remember what theorists like to forget: Deliberative argumentation is not about what is true, but about what to do.
A typical deliberative issue is (for the United States, at the time of writing), “starting a war on Iraq”, or “abolishing capital punishment”. It would be a categorial mistake to predicate truth, or falsehood, of these proposals. They are not propositions (assertions, constative statements); they do not predicate that anything is the case. Walton comes close to saying just that in his distinction between “practical” and “discursive” reasoning, when he states: “In the action type of critical discussion, the proposition is a practical ought-proposition that contains an imperative” (1996, 177). However, he blurs the distinction again by describing the deliberative issue as a proposition about what is prudential. The issue in deliberative argumentation is not a proposition; it is a proposal. It does not predicate a state of affairs, nor what ought to be the case; it proposes an action. It is like proposing a toast, or proposing marriage to someone. Proposals cannot be true or false. Read more

ISSA Proceedings 2002 – The Mytilene Debate: A Paradigm For Deliberative Rhetoric

• by: Charlotte Jørgensen - Dept. of Education, Philosophy and Rhetoric, University of Copenhagen

Readings of the speeches inserted in Thucydides’ History of the Peloponnesian War usually make reservations concerning their authenticity. To the historian the fictitiousness involved – openly acknowledged by Thucydides himself in his comments about the use of sources (book 1, chapter 1) – obviously poses a problem. For instance, Johansen[i] comments that the modern reader can only regret that it is usually impossible to distinguish report from reconstruction in Thucydides’ account (Johansen, 1984, 275). Depending on the scope of the analysis, the rhetorician, of course, may also regard the fictitiousness of the speeches as a drawback. However, in my approach to the Mytilene debate, this is not an issue. On the contrary, it is precisely the element of fiction that makes it possible to approach the text as I do. I join Michael C. Leff when he says that the most important feature of Thucydides’ representation of the debate is “the reflexive turn it takes” (1996, 89). Not only does the account illustrate how political debaters in a paradigmatic rhetorical situation argue “by the book”, an illustration with striking similarities to contemporary debates on the issue of capital and severe punishment. It is also a story, in Leff’s words, “about the proper conduct of public discourse.” What furthermore makes the text intriguing is that, on the one hand, it invites its reader to speculate on the norms for legitimate political persuasion, and, on the other, it is very open to interpretation. You might say about Thucydides what Wayne Booth pointed out about the implied author: “Everything he shows will serve to tell” (Booth, 1961, 20). Only he does it in a subtle way, sprinkling the text with ambiguities leaving the reader speculating as to his true intention.

What, then, does the account of the Mytilene debate tell us about legitimate deliberation? In my answering that, I am primarily going to address Michael C. Leff’s analysis of the text[ii].
The situation at the Athenian Assembly 427 B.C. is this: There has been a revolt against Athens in Mytilene on Lesbos, a privileged ally in the Athenian league. The oligarchic leaders responsible for the defection have appealed to Sparta for help, but the Athenian fleet has arrived first, and under the siege the democrats at the island have forced the new government to surrender to the Athenians. The captured leaders have been sent to Athens, where the citizens at the Assembly the day before “in their angry mood” have decided to put all male Mytilenians to death and to make slaves of the women and children. The next day, however, the Athenians wake up with a moral hangover, and it is decided to reopen the debate on the punishment of the Mytilenians. The two main debaters are Kleon, an influential politician at the time, and Diodotos, an otherwise unknown citizen. Kleon argues against revoking the punishment, while Diodotos proposes that only the captured prisoners be executed, and that the others be spared. At the close of the debate the vote is almost a tie, but Diodotos’ motion is passed. A second ship is sent to Mytilene in pursuit of that dispatched the previous day. Since the first is slow because of “its distasteful mission”, the second ship arrives just in time to prevent the massacre. Read more

ISSA Proceedings 2002 – The Conceptual Fabric Of Argumentation And Blended Mental Spaces

• by: László I. Komlósi - University of Pécs, Hungary

In my paper I will make a humble but unambiguous attempt at analyzing one specific aspect of the creation of argumentative reality for critical, argumentative discourse: namely, the nature of the linguistic texture and the corresponding conceptual fabric of arguments. I will invite my readers to look at the nature of everyday practices of argumentation in the light of an interactive mechanism that shapes argumentative reality. Two driving forces will be identified within this interactive mechanism:
a. conceptual flexibility reflected in language use, seen as on-line dynamic construction of full social meanings and
b. argumentation structures seen as the result of normative, though audience-oriented and presentation-bound reasoning behavior.

The starting point of my investigation is the appreciation of the basic tenets of the workings of critical, argumentative discourse as proposed in the problematological enterprise based on the dialogical game of question and answer (cf. Meyer 1994) and the pragma-dialectical engagement in creating argumentative reality (cf. e.g. Eemeren & Grootendorst 1994). Both of these approaches take it for granted that discursive argumentative behavior is determined by general principles of reasoning practices and rational discursive behavior. The critical discussions themselves ought to be seen as stretches of discourse composed of different types of argumentative speech acts. In an earlier analysis of the conventional aspects of argumentative speech acts (see Komlósi 1997) I investigated how institutionalized contexts and situated language use exploit fixed illocutionary and perlocutionary procedures creating expectations regarding possible inferences and the structural organization of argumentative discourse. The pragma-dialectical model of a critical discussion establishes an idealized model of the speech acts performed at the various stages of critical discussions by protagonists and antagonists who make attempts to resolve their differences of opinion in a reasonable way. The pragma-dialectical discussion procedure amounts to the constitution of a code of conduct for reasonable discussants, based on the critical ideal of reasonableness. I cannot go into the philosophical discussion about reasonableness and rationality here. However, I will claim and emphasize with my analysis that the question of reasonableness must be discussed and should be re-evaluated at the level of concept construction and conceptual integration for linguistic expressions and linguistic thought underlying the argument structures we use in argumentative discourse.

Recent developments of integrating rhetoric insights and rhetorical goals with the pragma-dialectical method of analyzing reasonableness in argumentative discourse have opened new vistas for further investigations: audience-orientedness and presentational-boundness have been identified as new sources for argumentative materials (see Eemeren, Ed. 2001). Read more

ISSA Proceedings 2002 – Rhetorical Criticism Of The Debate On The Future Of The European Union Strategic Options And Foundational Understandings

• by: Sine Just - Copenhagen Business School

1. Introduction
With the formation of the European Convention, which was set up at the Laeken Summit of the European Council on the 14th and 15th of December 2001, the debate on the future of the EU has been institutionalised. The members of the Convention will be considering a number of broad questions about the possible future developments, and the result of their discussions will be recommendations for a new treaty, a treaty, which must be drafted, refined and ratified before the end of 2004[i]. The Convention does not begin the debate from scratch, but picks up on agendas and ideas, which have been put forward by national leaders and other significant participants in the less formally structured, but no less significant discussions that led to the formation of the Convention.

In this paper, I investigate two of the earlier contributions to the debate on the future of the EU in order to explore how the debate was shaped. I work within a dual analytical framework, arguing that any rhetorical utterance must be seen as both a result of the strategic options from which the speaker can choose, and of the foundational understandings that sets limits on the speaker’s choices. The first part of the paper is a presentation of the theoretical argument for the proposed method of rhetorical criticism. The second and main section is an application of that method to two comparable speeches by the Spanish Prime Minister, José María Aznar, and his British counterpart, Tony Blair. These two speeches have been chosen for analysis, because I see them as being central to and representative of the formative stages of the debate on the EU’s future. In the third and final section, I shall present particular conclusions about the two speeches and generalise my claim to state that rhetorical criticism is a valuable tool to understanding and improving the ongoing European debate.

2. Rhetoric as response to a situation and as construction of meaning
In the view of Lloyd F. Bitzer, rhetoric is situational, meaning that rhetorical utterances arise as responses to situations, and that they are given significance by the particular situation from which they arise. In Bitzer’s opinion, an utterance is rhetorical only in so far as it can be used to solve a problem, and the function of each utterance as well as the form and content of the utterance originates from the situation to which the utterance is a response (Bitzer 1968/1992: 5-6). “Not the rhetor and not the persuasive intent, but the situation is the source and ground of rhetorical activity – and, I should add, of rhetorical criticism” (Bitzer 1992: 6). The rhetorical situation according to Bitzer consists of three elements: the first element, the exigence, is the reason why the speaker must speak, the problem which the utterance attempts to resolve. The second element is the audience who does not consist of all potential listeners, but only those who can be influenced by the discourse and can mediate the actions desired by the speaker. The third and final element is the constraints, which are all such things that can influence the outcome of the utterance. Constraints is a label covering a large number of different factors, which vary a lot from situation to situation and consist of both elements that are internal to the speech and elements that cannot be influenced by the speaker (Bitzer 1992: 6-7). Constraints may be the audience’s prior knowledge and opinion of the subject and of the speaker, other speakers’ utterances on the matter, the exact time and location in which the speech is delivered, the stylistic and argumentative choices made by the speaker, etc. Read more