Critical Legal Studies and argumentation theory

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the role of legal reasoning in the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory.     

Modelling argumentation and modelling with argumentation

This paper discusses the epistemological and methodological bases of a scientific theory of meaning and proposes a detailed version of a formal theory of argumentation based on Anscombre and Ducrot's conception. Argumentation is shown to be a concept which is not exclusively pragmatic, as it is usually believed, but has an important semantic body. The bridge between the semantic and pragmatic aspects of argumentation consists in a set of gradual inference rules, called topoi, on which the argumentative movement is based. The content of each topos is determined at the pragmatic level, while the constraints on the forms of the topoi attached to a sentence are determined at the semantic level. Applications and possible applications toartificial intelligence and to cognitive sciences are discussed. In particular, the gradual models used to account for argumentation are shown to be extremely promising for Knowledge management, a discipline which includes knowledge acquisition, knowledge representation, transmission of knowledge (communication, interfaces, etc.), knowledge production (decision help, reasoning, etc.). A first formal model is presented and discussed: it is shown in details how it accounts for most of the argumentative features of sentences containing but, little and a little, and how it can be extended to describe sentences containing other argumentative connectives. However, this model is shown to be too simple and to violate the compositionality principle, which is shown, in the first section, to bean important methodological principle for any scientific theory. After a detailed analysis of the possible reasons for this violation, an improved model is proposed and its adequacy is discussed.     

Petitio principii and circular argumentation as seen from a theory of dialectical structures

This paper investigates in how far a theory of dialectical structures sheds new light on the old problem of giving a satisfying account of the fallacy of petitio principii, or begging the question. It defends that (i) circular argumentation on the one hand and petitio principii on the other hand are two distinct features of complex argumentation, and that (ii) it is impossible to make general statements about the defectiveness of an argumentation that exhibits these features. Such an argumentation, in contrast, has to be evaluated on a case-by-case basis. “Petitio principii”, this paper thence suggests, is one name for, in fact, a multitude of different and quite complex dialectical situations which require specific analysis and evaluation.     

Probabilistic argumentation

Argumentation in the sense of a process of logical reasoning is a very intuitive and general methodology of establishing conclusions from defeasible premises. The core of any argumentative process is the systematical elaboration, exhibition, and weighting of possible arguments and counter-arguments. This paper presents the formal theory of probabilistic argumentation, which is conceived to deal with uncertain premises for which respective probabilities are known. With respect to possible arguments and counter-arguments of a hypothesis, this leads to probabilistic weights in the first place, and finally to an overall probabilistic judgment of the uncertain proposition in question. The resulting probabilistic measure is called degree of support and possesses the desired properties of non-monotonicity and non-additivity. Reasoning according to the proposed formalism is an simple and natural generalization of the two classical forms of probabilistic and logical reasoning, in which the two traditional questions of the probability and the logical deducibility of a hypothesis are replaced by the more general question of the probability of a hypothesis being logically deducible from the available knowledge base. From this perspective, probabilistic argumentation also contributes to the emerging area of probabilistic logics.     

Coalescent argumentation

Coalescent argumentation is a normative ideal that involves the joining together of two disparate claims through recognition and exploration of opposing positions. By uncovering the crucial connection between a claim and the attitudes, beliefs, feelings, values and needs to which it is connected dispute partners are able to identify points of agreement and disagreement. These points can then be utilized to effect coalescence, a joining or merging of divergent positions, by forming the basis for a mutual investigation of non-conflictual options that might otherwise have remained unconsidered. The essay proceeds by defining and discussing argument, position and understanding. These notions are then brought together to outline the concept of coalescent reasoning.     

Practical-theoritical argumentation

This essay explores the dialectics of theory and practice in terms of argumentation theory. Adapting Jonsen and Toulmin's (1988) notion of a Theory-Practice spectrum, it conceives Theory and Practice as extreme ends of a continuum and discourses as falling at various points along the continuum. Every theoritical discourse has essential practical aspects, and every practical discourse has essential theoretical aspects. Practices are theorized to varying degrees but every practice is thorized to some degree. Reflective discourse, which is discourse about practice, moves to and fro along the Theory-Practice continuum. Reflective discourse involves argumentation. Practical argumentation connects theory to practice; it appeals to general warrants, which may be simple or may tap into elaborate conceptual structures, in order to establish grounds for practical judgments. A practical discipline is a relatively coherent intellectual-professional enterprise that cultivates a field of social practice by engaging within itself and with practitioners in a reflective discourse. The argumentation of a practical discipline, like ordinary practical reflection, moves to and fro along the Theory-Practice continuum but in more methodical steps informed by systematic methodological reflection on the reflective process itself.     

Suppositions in argumentation

The atheist who begins to argue his case by saying, Suppose there is an omniscient Being of the sort in which Christians believe ... is employing a very familiar move in argumentation. However, most books on argumentation theory ignore suppositions completely. Searle omits suppositions entirely from his taxonomy of speech acts and this appears to lead to a similar omission in Speech Acts in Argumentative Discussions by van Eemeren and Grootendorst.This paper argues that suppositional argument is elegant, powerful and extremely common, that the correct way to understand it is based on Gottlob Frege's distinction between asserted and unasserted propositions and hence that suppositions are neither assertions nor (and this is more important) assertives. The paper discusses the connections between suppositions and conditionals; it argues that argumentation theory which ignores suppositions is systematically misleading; and it concludes by indicating some possible developments in argumentation theory.Revised version of a paper delivered at the University of Amsterdam, April 3, 1987.     

Meaning and Truth in Habermas's Pragmatics

The article examines Habermas's formal-pragmatic theory of meaning from the point of view of his attempt to defend a postmetaphysical yet context-transcendent conception of validity. It considers his attempt to develop a pragmatic account of understanding utterances that emphasises the mediation of knowledge through socio-cultural practices while simultaneously stressing that understanding has a cognitive dimension that is inherently context-transcendent. It focuses on his recent "Janus-faced" conception of truth, looking more briefly at his purely epistemic conception of moral validity. It raises three objections: the first to his attempt to maintain a notion of "unconditionality" that has no otherworldly origins but is purely immanent to this world, the second to the alleged non-arbitrary status of his conception of truth, and the third to his rejection of metaphysical thinking. It concludes that the objections, if valid, have profound implications for Habermas's postmetaphysical enterprise and for his programme of formal pragmatics.     

Manipulations in argumentation

In public and political practice, argumentation involves verbal manipulations, which have not been sufficiently studied in modern argumentation theory. This paper proposes to analyse such manipulations as speech acts, by means of the pragmadialectical theory of argumentation.     

超越人权与人民主权的对峙:哈贝马斯的人民主权理论探析

人民主权是立宪国家的一项基本原则。通过对人民主权理论的历史追溯,哈贝马斯指出,无认是卢梭还是康德都没有能够确切把握人民主权理论的内涵。立足交往行动理论,哈贝马斯认为,应对人民主权理论作互为主体间性的商谈论理解。总体而言,哈贝马斯的人民主权理论虽然带有浓厚的乌托邦色彩,然而,对正致力于社会主义宪政建设的中国而言,无疑仍具有重要的启迪意义。     

On the origin of normative argumentation theory: The paradoxical case of the Rhetoric to Alexander

The Rhetoric to Alexander (second half of the fourth century B.C.) is among the oldest contributions to the study of argumentation. From antiquity on, this treatise, which abounds in opportunistic advice, has come under heavy criticism on normative grounds. And yet, as I shall maintain here, it clearly takes into account the requirements of rational argumentation which are still in use today. Moreover, it contains the seeds of a whole series of doctrines found in modern normative argumentation theory. There are reasonable grounds for maintaining that some of these modern doctrines stem indirectly from the tradition to which the Rhetoric to Alexander belongs.     

Modernity and Morality in Habermas's Discourse Ethics

Discourse ethics is originally conceived as a programme of philosophicaljustification of morality. This depends on the formal derivation of the moral principle (U) from non-moral principles. The moral theory is supposed to fall out of a pragmatic theory of meaning. The original programme plays a central role in Habermas's social theory: the moral theory, if true, provides good evidence for the more general theory of modernization. But neither Habermas nor his followers have succeeded in providing a formal derivation. This essay shows how and why Habermas's proposed derivation is impossible. As if aware of the lacuna, Habermas has recently suggested that (U) can be derived by 'abduction' rather than deduction. The proposal draws heavily on modernization theory; hence the only justification for (U) now available to him rests on premises drawn from that theory. The original programme of the justificationof morality has thus given way to the weaker programme of the philosophical elucidationof morality. Further, since Habermas's moral theory is no longer justified independently of modernization theory, but at least partly by it, the moral theory cannot without circularity provide evidence for the modernization theory.     

Culture and collective argumentation

What are the mechanisms underlying the reproduction and change of collective beliefs? The paper suggests that a productive and promising approach for dealing with this question can be found in ontogenetic and cross-cultural studies on ‘collective argumentations and belief systems’; this is illustrated with regard to moral beliefs: After a short discussion of the rationality/relativity issue in cultural anthropology some basic elements of a conceptual framework for the empirical study of collective argumentations are outlined. A few empirical case studies are summarized; the results deliver some empirical evidence to the assumption that as the ‘logic of collective argumentations’ develops in children and adolescent there will be different and increasingly more complex constraints on the kinds of basic moral beliefs that can be collectively accepted. Most importantly, as children approach adolescence they may have acquired a ‘logic of argumentation’ which makes possible a collectively valid distinction between the ‘is’ and the ‘ought’ of some disputed particular moral issue. A comparison with a land litigation among Trobriands (Papua New Guinea) shows that the ‘logic of argumentation’ and the corresponding basic moral beliefs of Trobriands very much resemble the ‘logic of argumentation’ and moral rationality standards of (German) adolescents.     

Patterns of argumentation in Galileo's Discorsi

In this contribution I intend to reconstruct and evaluate one of Galileo's famous arguments given in the Discorsi against a well‐entrenched thesis of Aristotelian physics. It will be shown that Galileo's reduction‐to‐the‐absurd type of counterargument is, although seemingly cogent, after all fallacious. I ascribe Galileo's committing of this fallacy to his looking at the Aristotelian physics through the (Kuhnian type) paradigmatic “spectacles” of his own new physics.