ISSA Proceedings 1998 – Methods For Evaluating Legal Argumentation

• by: Fritz Dolder - University of Basel

1. Introduction: Description and evaluation of legal argumentation
Descriptive studies of legal argumentation attempt to recognize and classify specific patterns, categories or topics of arguments in different contexts and to relate their occurrence to the different contexts. The aim of descriptive methods is to generate a morphologically true picture of the argumentation as evidenced by means of methodological criteria, or to “reconstruct” argumentation by means of such methodological tools (Schroth 1980: 122/123).
Methods of critical evaluation, on the other hand, attempt to assess the quality of argumentation, i.e. to generate a judgement based on the compliance of that argumentation with standards of a given kind, such as standards for rational discussion, logical, linguistic, scientific or other (cf. Feteris1995: 42). It is the aim of the present paper to discuss some of the numerous standards proposed for evaluating legal argumentation. The only common starting point for such an investigation consists in the fact that the standards to be investigated should be perceived as such by the audience of the legal argumentation.
With regard to their data basis evaluation of argumentation can be staged either on individual patterns of argumentation found in a specific legal text, or on the argumentative “style” in a sample accumulated from an appropriate number of individual patterns of argumentation selected by adequate sampling techniques, e.g. a sample of texts of a specific court, time period, or legal specialty (Dolder/Buser 1989: 382/383, Dolder 1991: 126, 128). Investigations staged on accumulated samples offer the advantage that the parameters observed can be evaluated by quantitative methods.

2. Materials and methods
Empirical investigations have been staged on the published text of “decisions” (Urteilsbegründungen) of the Federal Court of Switzerland and some lower Swiss courts in the field of civil and commercial law. These legal texts represent the justification of the ruling of the court and are the final, most formal and solemn stage of the argumentation process taking place in judicial proceedings. As such they are supposed to take into account all arguments raised by the parties in the course of the procedure, insofar as they are held relevant by the court. These justifications are submitted to an audience consisting not only of the parties to the procedure, but, at least if the decisions are published, also of other courts and the professional legal community. On the basis of these properties they offer an interesting material for argumentation studies (Perelman 1979: 209 with reference to T. Sauvel). Read more

ISSA Proceedings 1998 – Towards A Proposition Of The Argumentative Square

• by: Barbara Domajnko - Educational Research Institute, Slovenia

1. Introduction
In his semantic description of language, Ducrot puts forward a rather provocative thesis, with respect to traditional semantic theory, namely, that words do not mean anything if meaning is understood in terms of vocabulary, by which he defies the primacy of the informative in the account of meaning. The informative is said to be derived from and subordinated to the argumentative, which is, in turn, presented as inscribed in language and defined in terms of argumentative orientation, topoi and enunciators (viewpoints). The notion of lexical enunciator unfolds the argumentative potential in a word (lexeme), i.e., points of view formulated according to four basic topical forms. It is tempting to imagine the four topical forms as a taxonomy of viewpoints and present them in a square model.
The square model has already been used in logic and narrative semiology, and there were attempts to see Ducrot’s work related to and even explicable by them, especially, since the names of some relations (e.g. contradiction and contrariety) repeat in some or all of the theoretical frameworks. Ducrot has explicitly drawn a line of separation between, on the one hand, the semiotic square and the logical square, and, on the other hand, his own theoretical path[i]. On a closer inspection – which is impossible to be deployed here due to the limitations of time and space – one could indeed realize there is no direct theoretical import between them. The logical and semiotic squares differ from the one that could be reconstructed from Ducrot’s work to a great extent in their fundamental elements, function and nature, definitions of relations and treatment of meaning and truth.
As the four-angled form itself has nothing to do with the incompatibilities between Aristotle, Greimas and Ducrot, it is possible to attempt and arrange the four topical forms in a square model. However, the structural relations in – what let it for the purpose of this paper be called the argumentative square – must, accordingly, be defined and understood differently than in the logical or semiotic squares. Read more

ISSA Proceedings 1998 – Does The Hedgehog Climb Trees?: The Neurological Basis For ‘Theoretical’ And ‘Empirical’ Reasoning Patterns

• by: Inga B. Dolinina - McMaster University

1. Introduction
Human beings use two contrasting patterns of reasoning, often called the “empirical” (“pre-logical”, “traditional”) mode and the “theoretical” (“logical”, “formal”) mode. The contrast between these two modes is most marked in discourse when the demands of logical patterns contradict common-sense attitudes and the ability to establish the reliability of premises. Thus, the following syllogism (Scribner 1976: 485):

1. All people who own houses pay house tax. Boima does not pay a house tax. Does he own a house? can have in actual discourse two different answers. One exemplifies the theoretical mode of reasoning, and is assumed to be the correct one:
1.1  a. No, he does not.

The second answer is:
1.1  b. Yes, he has a house.

with further elaboration (if asked): “But he does not pay the tax, because he has no money.” This mode is called the empirical mode. In discourse, referring to the situation described in the cited syllogism, it is the “incorrect” traditional pattern of reasoning, and not the logical one, that is correct. Similarly, syllogisms with false premises like (2):
2. All monkeys climb trees. The hedgehog is a monkey. Does the hedgehog climb trees, or not?

also can be given two different answers: one theoretical, but false (which deductively follows from the premises):
2.1  a. Yes, he does.

the other an empirical, inductively oriented one, with the claim that either the second premise is false:
2.1  b. The hedgehog is not a monkey, or that one does not know what it is all about or whether it is true at all:

2.1 c. I have not seen hedgehogs, I do not know whether they climb trees or not .

According to cross-cultural and educational studies people in pre-literate cultures invariably respond empirically to such questions; in fact, they seem unable to comprehend a request to say what follows from a set of premises when they do not have first-hand knowledge that they are true. Pre-school and very early school-age children in all cultures likewise respond empirically, according to educational and developmental studies. These findings have prompted a number of questions. What causes the transition from the pre-logical to the logical mode? Is it an ontogenetic development, or is it culturally conditioned? If the latter, is the determining factor literacy alone, or a specific kind of schooling? When children (or pre-literate adults) acquire the logical mode, do they still use the pre-logical mode? How is the ability to use these modes grounded in the brain? In particular, what contribution does each hemisphere of the brain make to each mode? In what follows I aim to synthesize the results of twentieth century research into these patterns of reasoning. In particular, I will describe some unique but little known neurological research which shows that, contrary to Piaget’s and others’ claims, the empirical, pre-logical mode remains a part of the discursive repertoire of adults in literate European-type civilizations. It is located in the right hemisphere of right-handed people, whereas the logical mode is located in the left hemisphere. Read more

ISSA Proceedings 1998 – Burden Of Proof: A Negociable Argumentative ‘Chore’

• by: Marianne Doury - GRIC – Université Lumière-Lyon 2

The allocation of burden of proof is a very classical argumentative issue. This paper does not propose general reflections on the principles which rule this allocation, but rather tries to show how, when engaged in face-to-face argumentation, speakers themselves deal with this question.
I will first evoque briefly how the question of the burden of proof is treated within the frame of judicial argumentation as well as ordinary argumentation. I will then indicate how it can be articulated with a global description of a rhetorico-argumentative situation. Finally I will show, through a case study, how the allocation of burden of proof is negotiated within a specific polemic: the media debate about parasciences (astrology, parapsychology, ufology, etc.).

1. The burden of proof allocation rules
The general principle which governs the allocation of burden of proof in ordinary argument is that argumentative scaffolding falls to the speaker who challenges the doxa, while his opponent enjoys the weight of what is supposedly admitted.
Thus, if two speakers disagree, one claiming that 2 + 2 = 5 whereas the other assumes that 2 + 2 = 4, it falls to the first one to argue his claim, not to the second one. Moreover, the one who promotes an unlikely claim must prove the validity of this claim, and should not ask his adversary to prove it to be false; such an attitude would lead to an ad ignorantiam fallacy.
The first consequence entailed by this general burden of proof allocation rule is that it is governed by a principle of inertia: since presumptions play in favour of what exists, only change requires to be justified.
The second consequence of this rule is that the burden of proof allocation is setting-dependent, since what is considered as doxastic on a given matter may vary with the audience.
The general allocation rule may also be associated with additional sub-rules which condition its application within some specific settings. In particular, within the judicial area, the burden of proof is tightly linked to the presumption of innocence: the prosecutor assumes the burden of proof, and any reasonable doubt must be in favour of the prosecuted. In this specific setting, using the adversary’s failure to prove a proposition p (the guilt of X) as an argument in favour of non-p (the innocence of X) is not considered as fallacious.
Perelman insists on the fact that the allocation of burden of proof within the legal area also plays in favour of inertia: “il est conçu de manière à ratifier, jusqu’à plus ample informé, les faits tels qu’ils sont”.[i] Read more

ISSA Proceedings 1998 – The Use Of Metaphor In Scientific Argument: The Case Of Edward Clarke’s Sex In Education

• by: David Douglass, Ph.D. - Willamette University

Contemporary research on metaphor has demonstrated with some emphasis that metaphor plays a significant role in science. Indeed, the discovery and description of the various functions performed by metaphor in scientific discourse has become a major research focus in metaphor scholarship (see Ortony, 1993). This focus was initiated in 1955, when philosopher Max Black (1955) argued in a landmark essay that metaphor constitutes “a distinctive intellectual operation” (79). By attributing cognitive content to metaphor, Black promoted the construct from a mere stylistic trope to a central figure in the process of scientific discovery. Subsequent research, including inquiry into the process of scientific modeling conducted by Black (1962) himself, established a virtual consensus regarding the necessity of metaphoric thought and description in science. Acknowledgment of this necessity can be found not only in the work of “metaphor-friendly” philosophers of science such as Thomas Kuhn (1993), but also in the work of logical positivists such as Ernest Nagel (1961).
This should not be taken to say that metaphor has been roundly embraced as a positive influence in science. Even Black (1955) was quick to point out that there is “no doubt metaphors are dangerous” (79). While metaphor may be indispensable in the process of theorizing, it can also mislead. The same heuristic function that enables metaphors to help us grasp new ideas can also serve to misdirect or limit our perceptions. In particular, there is an ever-present danger that metaphors will become reified or literalized. By this process, a metaphor, construct, or model becomes for the researcher not just a representation of reality, but the reality itself (Black, 1962).
There is a second fashion by which metaphor poses a danger in science. Not only can metaphor mislead researchers by construing their perceptions, but it can also serve a powerful rhetorical function in the interpretation of scientific data and the application of those data to social contexts. Metaphor can serve as a bridge from scientific data to personal or political interests, and in the process, the data itself is reconstituted according to the metaphorical entailments. This risk pertains not so much to the good-faith misapprehension of reality as to the intentional, persuasive uses made of the results of scientific investigation. Metaphor is particularly vital in such uses given its peculiar efficacy as an ideological tool. Although the ideological function of metaphor has been explored in traditional analyses of rhetorical artifacts, far less attention has been paid to this function in the discourse of science. In this essay, I wish to characterize the rhetorical potential of metaphor in the interpretation and application of scientific data by way of a case study. My progress will be made up of an initial exploration of the ideological functions of metaphor, followed by an examination of these functions in the work of nineteenth-century Harvard physician Edward Clarke.

1. The ideological function of metaphor
Edwin Black (1970) writes that any discourse asserts a model of what the author would have his or her real audience become. This model is almost never characterized directly, but is implied by way of stylistic tokens. By the choice of language, the fashion in which the argument is clothed, an author implies an outlook. Style in this context serves as perspective, and, Black notes, this perspective matters inasmuch as “auditors look to the discourse they are attending for cues that tell them how they are to view the world, even beyond the expressed concerns, the overt propositional sense, of the discourse” (165). In all, stylistic cues link discourse to an ideology, a “network of interconnected convictions that functions in a man epistemically and that shapes his identity” (164). Read more

ISSA Proceedings 1998 – Delivering The Goods In Critical Discussion

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

1.The pragma-dialectical theory of argumentation [i]
In the 1970s, inspired by Karl Poppers critical rationalism, an approach to argumentation was developed at the University of Amsterdam that aimed for a sound combination of linguistic insight from the study of language use often called pragmatics and logical insight from the study of critical dialogue known as philosophical dialectics (van Eemeren and Grootendorst 1984). Therefore, its founders labelled this approach pragma-dialectics. In pragma-dialectics, argumentation is viewed as a phenomenon of verbal communication; it is studied as a mode of discourse characterized by the use of language for resolving a difference of opinion. Its quality and possible flaws are measured against criteria connected with this purpose.
In the 1980s, a comprehensive research programme was developed. This programme was, on the one hand, based on the assumption that a philosophical ideal of critical rationality must be developed, in which a theoretical model for argumentative discourse in critical discussion could be grounded. On the other hand, the programmes point of departure was that argumentative reality has to be investigated empirically to achieve an accurate description of actual discourse processes and the various factors influencing their outcome. In the analysis of argumentative discourse the normative and descriptive dimensions were to be linked together by a methodical reconstruction of the actual discourse from the perspective of the projected ideal of critical discussion. Only then, the practical problems of argumentative discourse as revealed in the reconstruction could be diagnosed and adequately tackled.[ii]
Crucial to grounding the pragma-dialectical theory in the philosophical ideal of critical rationality is a model of critical discussion. The model provides a procedure for establishing methodically whether or not a standpoint is defensible against doubt or criticism. It is, in fact, an analytic description of what argumentative discourse would be like if it were solely and optimally aimed at resolving a difference of opinion. The model specifies the various stages and rules of the resolution process, and the types of speech act instrumental in each particular stage. Read more