Subordinating Truth – Is <Emphasis Type="Italic">Acceptability</Emphasis> Acceptable?

Argumentation logicians have recognized a specter of relativism to haunt their philosophy of argument. However, their attempts to dispel pernicious relativism by invoking notions of a universal audience or a community of model interlocutors have not been entirely successful. In fact, their various discussions of a universal audience invoke the context-eschewing formalism of Kant’s categorical imperative. Moreover, they embrace the Kantian method for resolving the antinomies that continually vacillates between opposing extremes – here between a transcendent universal audience and a context-embedded particular audience. This tack ironically restores the very external mediation they thought to obviate in their aim to ‘dethrone’ the absolutism and totalitarianism of formal logic with a democratic turn to audience adherence, the acceptability of premises and inferential links, and a contextual, or participant-relative, notion of cogency.     

Rhetoric and the Reception Theory of Rationality in the Work of Two Buddhist Philosophers

Although rhetoric is not a category of ancient Indian philosophy, this paper argues that Śāntarakṣita and Kamalaśīla, 2 eighth-century Indian Buddhist philosophers, can nonetheless be seen to embrace a rhetorical conception of rationality. That is, while these thinkers are strong proponents of rational analysis and philosophical argumentation as tools for attaining certainty, they also uphold the contingent nature of all such processes. Drawing on the categories of the New Rhetoric, this paper argues that these Buddhist thinkers understand philosophical argumentation to be directed at a universal audience of rational beings, where this universal audience is not an actual audience but a rhetorical one constructed through the author’s particular and historically contingent conception of what counts as rational. A reception theory of rationality is one that holds that the rationality of an argument depends upon its acceptance by a rational audience. When philosophers recognize the historically contingent nature of what counts as rational, they can embrace a reception theory of rationality that neither reduces the rational to mere opinion nor restricts it to a single, absolute, and timeless standard.

模拟法官决策中心理控制源对后见偏差的影响

考察模拟法官决策中心理控制源对后见偏差的影响。实验采用2（心理控制源：外控型、内控型）×3（有无策略：后见组、分散注意组、指导组）两因素被试间实验设计。采用自编两个案例及问卷测查模拟法官决策中后见效应的差异。实验结果发现,不同心理控制源是导致模拟法官决策中后见偏差存在差异的影响因素。同时,两种策略都能够有效减少模拟法官决策中的后见偏差。     

From discretion to disagreement: explaining disparities in judges' pretrial decisions

Judges are afforded considerable discretion in decision-making. Through their exercise of discretion, judges construct society's notion of crime and justice. This study examined 61 lay judges' bail decision-making in the English criminal justice system. The law states that in particular cases decisions to grant bail or remand in custody should be based on the risk of a defendant absconding, offending, or obstructing justice while on bail. However, there is little guidance on how these judgments should be made and how they should affect decisions. It was found that judges varied (disagreed) in their risk judgments and decisions on the same set of simulated cases. The extent of judicial disagreement differed across cases, and the source of disagreement in decisions lay in the variability of judges' earlier risk judgments. The paper discusses how judicial disagreement may be reduced.     

Judicial Wisdom: The Process of Constructing Wise Decisions

Surprisingly little research exists on the role of wisdom within legal decision making. To shed light on this topic, we interviewed 11 U.S. judges who were nominated by their peers for their legal wisdom. They were asked to describe their experience of wise legal decision making and the qualities and processes they felt characterize wise judges. Their interviews were subjected to a grounded theory analysis to develop an understanding of the psychological processes and interpersonal performances that constitute wise legal decision making. Among other findings, results identified attitudes in judges that were thought to lead to better decisions, such as an attitude of curiosity. They identified courtroom management styles that were characterized by magnanimity and compassion as instilling public faith in the system, in contrast to a distant or overly adversarial tone. They tended to agree that, when possible and within the confines of the law, rulings oriented toward rehabilitation were preferable to punitive ones. As well, wise judges described the ways they managed personal challenges arising from value conflicts or ambiguous evidence when making decisions. The article provides clarity on the meanings of the term wisdom within the judicial profession and its construction within the alternative discourses of retributive and procedural justice.     

Eyewitness memory is still not common sense: comparing jurors,judges and law enforcement to eyewitness experts

Knowledge of factors affecting eyewitness accuracy was examined in a sample of jurors, judges and law enforcement professionals. Participants completed a survey in which they were asked to agree or disagree with 30 statements about eyewitness issues, and their responses were compared to a sample of eyewitness experts who completed the same survey. Participant responses differed significantly from responses of eyewitness experts. Jurors disagreed with the experts on 87% of the issues, while judges and law enforcement disagreed with the experts on 60% of the issues. The findings show a large deficiency in knowledge of eyewitness memory amongst jurors, judges and law enforcement personnel, indicating that the legal system may benefit from expert assistance in the evaluation of eyewitness evidence. Copyright © 2005 John Wiley & Sons, Ltd.     

The Economic, Political, Strategic, and Rhetorical Uses of Simple Constructive Dilemma in Legal Argument

The author argues that simple constructive dilemma is a valuable argument form for reasoning under relative conditions of uncertainty. When applied to legal argument this value of simple constructive dilemma is shown in its political, strategic, rhetorical, and especially economic, uses by lawyers and judges. After considering some examples of the use of the form by trial lawyers, the author gives examples of the more interesting use of the form by appellate courts. Research into the use of simple constructive dilemma by appellate courts helps us to understand how those courts distribute judicial resources. It also helps us to understand the political role of the appellate courts with respect to the doctrine of the separation of powers. Given some of the specific examples of legal reasoning used by the appellate courts presented in this article, and given the discussion of the doctrine of precedent, the article’s focus is on common law legal systems of the Anglo-American-type.     

Recognizing the Threat Posed by an Incestuous Parent to the Victim's Siblings. Part II: Improving Legal Responses

Many courts refuse to protect the siblings of an incest victim even when faced with unmistakable evidence that they are at risk, arguing that no one can predict what will happen. For instance, some courts believe that a parent who molests his stepchild is unlikely to victimize biological offspring, while others believe that a father who violates a daughter will not also victimize sons. Although judges have relied principally on intuition, a substantial body of empirical studies can help them to better assess a sibling's risk. In Part I, I argued that once a parent establishes the first sexual relationship, other children in the family should be considered at risk. Nonetheless, not all children in the household face identical risks of molestation. In this paper, I continue this theme and argue that a legal presumption should arise that other children are endangered. Further, I maintain that offenders should have an opportunity to rebut this presumption. Without this opportunity, a child who never faced a significant risk of abuse may be removed from his home or unnecessarily lose his ties to a parent. In order to better protect children, I outline how legal decisions can better reflect what is known about child victimization.     

Between Theory and Practice: A Dilemma for the Morawetz‐Wittgenstein View of Law

Drawing deeply from Wittgenstein's later works, Thomas Morawetz has articulated a vision of legal decision making according to which it is not a defect, but inherent in the very nature of law, for there to be disagreement among judges regarding their legal decision‐making strategies. Central to Morawetz's account is the notion of a legal grammatical proposition. This essay argues that because legal grammatical remarks lack any truth‐value, they cannot play a justificatory role. This would imply that the rule of law is no more justifiable than the violent alternatives used by anarchists and religious fanatics.     

Guardianship determinations by judges, attorneys, and guardians

Guardianship is intended to protect incapacitated individuals through the appointment of a surrogate decision maker. Little is known about how judges, attorneys, and professional guardians assess the need for guardianship, to what extent they apply statutory guidelines when making these determinations, and how their decisions compare. Three groups of participants (probate judges, elder law attorneys, and professional guardians) read vignettes portraying older adults that varied in the extent to which the evidence supported the appointment of a guardian. They were asked about the appropriateness of various resolutions. Participants were reluctant to endorse full guardianship even when warranted by the evidence and preferred informal, family-based interventions that do not involve legal action. Professional groups did not always agree on the appropriate resolutions, suggesting that one's professional orientation may play a role in perceptions of older adults.     

What Factors Influence Judges’ Rulings About the Legality of Affirmative Action Plans?

Purpose

When implementing affirmative action programs involving race and gender, human resource practitioners must balance efforts to increase workforce diversity against the need to avoid illegal reverse discrimination. The tension between non-discrimination law and preferential treatment is explored. In reverse discrimination case law, affirmative action plans are evaluated by judges along two dimensions: remedial need and limiting harm. The legal literature specifies certain factors such as statistical imbalance, employee qualification, and duration of plan that are usually examined within these two dimensions.

Methodology

A content analysis of 80 federal court cases was conducted to quantitatively analyze the weight and importance of these factors within judicial rulings as well as contextual factors (e.g., judge’s political affiliation, beneficiary of program) that may influence the outcome of affirmative action lawsuits.

Results

It was found that remedial need can be demonstrated by large statistical disparities in the workforce, and was also more likely to be found by Democratic than Republican judges. Limiting harm is more likely to be supported by plans that are of limited duration and do not use reserved slots, or quotas.

Implications

The study provides empirically based recommendations for the design of legally defensible affirmative action plans that involve preferential treatment.     

Interpreting Perelman’s Universal Audience: Gross versus Crosswhite

While still subject to differing interpretations Perelman’s theory of audience has potential as an evaluative tool in rhetorical criticism as demonstrated by Gross and Crosswhite. I compare their explanations of how politicians address the universal audience and the respective implications for evaluating the argumentation and then argue that although Gross provides a more immediately applicable theory, Crosswhite’s interpretation recommends itself by virtue of its wider scope in regard to deliberative rhetoric.     

What goes into a Paradigm? Some reflections on gender‐issue ‘differences’ between Sunni law schools,and the problematic of their historical attribution

Traditional Islamic law developed within a number of paradigmatic blueprints that were later ascribed to the ‘founders’ of ‘law schools’. This law was neither code‐driven ‘civil law’ in the sense of the Napoleonic code, nor was it ‘common law’ in the English and American sense. Speaking mainly in the language of traditions, medieval scholars formulated legal rules whose admissibility depended on communal consensus regarding their validity. Many of the rules remained imbedded in ‘examples’, Hadith‐reported case studies, and/or qur'anic exegesis, while the underlying principles formed part of the developing legal tradition. That they were not codified provided the latter with an inherent flexibility, enabling judges and jurisconsults not just to apply, but to develop the law. The following article is a study of a legal concept, tahlil marriage, and the ways in which the four extant Sunni law schools have dealt with this notion, including the development of legal categories that were brought to, and derived from, the concept in question.     

Judge's Instruction on Eyewitness Testimony: Evaluation and Revision1

Studies of the reliability of eyewitness identification show that such testimony may frequently be inaccurate; because of this inherent unreliability, the law has established certain safeguards to the use of eyewitness evidence. One safeguard has been the development of an instruction that a judge may use to focus jurors' attention on the eyewitness issue. The effectiveness of this instruction has never been assessed, although other studies confirm that jurors frequently misunderstand or incorrectly use instructions they get from the judge. The purpose of these studies was to evaluate comprehension of this instruction in the context of a videotaped trial and to develop a simplified instruction that would be easier for jurors to understand. Compared to jurors who heard the existing instruction, those with the revised version were more knowledgeable of the factors to consider when listening to eyewitness testimony and were less likely to convict the defendant. A sample of superior court judges in the U.S. thought the simplified instruction was more effective than the existing version at conveying the intended legal concepts to the jury, but also rated it as more strongly biased toward the defense.     

Custody Disputes and Alternative Religions in the Courts of England and Wales

The courts in England and Wales have repeatedly claimed that they occupy a position of religious neutrality when faced with a case involving parties from two differing religions. While this assertion may well be true, when established, traditional religions are involved, it does not appear to be so clear cut, when one of the religions could be described as a ‘new religious movement’ or an ‘alternative religion’. Perhaps the most telling area of law in which to examine the courts’ alleged neutrality is in custody disputes in family law, as it is in these cases that the religious practices of the parents have sometimes become a factor in the case and judges have been more likely to express their opinion of such religious practices. This article analyses the approach of judges to such disputes and demonstrates that the judges tend to maintain a bias towards Judaeo-Christian morality.     

One Question,Two Answers: Rabbinic Responsa as Legal Advocacy in the Medieval Islamic World

Jewish law has long faced the problem of individual litigants seeking multiple answers to a single halakhic question in order to select what they found to be the most favorable ruling. In this article, I examine the role that forum shopping for legal opinions played in the Jewish community of the medieval Islamic world. Individuals often made recourse to multiple juristic authorities, whether those authorities were leaders serving the geonic academies of Babylonia and the land of Israel or local jurists. I discuss some of the strategies the geonim and local jurists used to reduce competition between judicial rulings and how local judges utilized the various responsa composed on their behalf by these authorities or presented to them by litigants to bolster their case before the Jewish court. In so doing, I aim to refine our understanding of the social and legal role of rabbinic responsa in the medieval Islamic world by suggesting that this literature served as expert testimony to support one side or the other in a particular case rather than as the definitive record of the court’s ruling in that case.     

Children's drawings of significant figures for a peer or an adult audience

The present study assessed if children would present different information in their drawings of emotion eliciting stimuli when they believed that an adult or a child audience would view their drawings. Seventy‐five 6‐year‐olds (44 boys and 31 girls) were allocated to three groups: the reference group, the child audience group and the adult audience group. All children completed a drawing session where they first drew a neutral uncharacterised figure, followed by drawings of a sad and a happy figure in counterbalanced order. Findings demonstrated that children did consider who would be viewing their drawings when communicating emotional affect and included different features within their drawings. In particular, almost all happy drawings included a smile, but only those drawings where an audience was specified included a wave, and only the adult drawings included flower giving. Within the sad drawings tears and frowns were drawn regardless of audience type, whereas stomping was more likely to be portrayed in drawings with a child audience and thumbs down were more likely to be portrayed in drawings with adult audiences. The findings are discussed in terms of the need to further examine communicative aspects of children's drawings. Copyright © 2011 John Wiley & Sons, Ltd.     

The Making of Argumentation Theory: A Pragma-dialectical View

In ‘The making of argumentation theory’ van Eemeren and van Haaften describe the contributions made to the five components of a full-fledged research program of argumentation theory by four prominent approaches to the discipline: formal dialectics, rhetoric/pragmalinguistics, informal logic, and pragma-dialectics. Most of these approaches do not contribute to all components, but to some in particular. Starting from the pragma-dialectical view of the relationship between dialectical reasonableness and rhetorical effectiveness – the crucial issue in argumentation theory – van Eemeren and van Haaften explain the positions taken by representatives from the approaches discussed and indicate where they differ from the pragma-dialectical approach. It transpires that approaches focusing on dialectical reasonableness are, next to pragma-dialectics, formal dialectics and informal logic; approaches focusing on rhetorical effectiveness are, next to pragma-dialectics, rhetoric and pragmalinguistics, and the informal logician Tindale. When it comes to the relationship between dialectical reasonableness and rhetorical effectiveness, some interest in it is shown in rhetoric and pragmalinguistics, but only in pragma-dialectics and in Tindale’s work is it a real focus. The main difference between Tindale’s view and the pragma-dialectical view is that in pragma-dialectics the decisive role in deciding about reasonableness is assigned to a code of conduct for reasonable argumentative discourse and in Tindale’s approach this role is assigned to Tindale’s interpretation of the Perelmanian universal audience.

     

Judges and Jews: congregational conflict and the Protestant secular in 19th-century America

This article shows how 19th-century Jews embraced the American legal system. In spite of the rhetoric of ‘religious freedom’ the fact that religious congregations were legal corporations meant that they were never fully ‘free’ from government oversight. In the absence of clear religious authorities, American Jews regularly invited state oversight into their religious affairs, and, seeking legal victory, they worked alongside judges to fit the dictates of Jewish law to the Protestant assumptions of American secularism. Three instances of Jewish congregational strife, dealing with practice, employment, and membership, are closely analyzed to demonstrate how outsider religious communities strategically navigated a legal system that was allegedly neutral but presumptively Protestant.     

Judicial Discretion and the Problem of Dirty Hands

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence.