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Preface This work deals with strategic maneuvering as used in the legal communicational encounters represented by court proceedings. It is thought that this area of linguistic study has not been given its due attention especially from the pragmatic perspective. Thus, the present book re-models this concept to go along with what happens in this regard in the American civil and criminal court trials – the data under scrutiny. Hence, it sets itself the task of achieving the following aims: (1) finding out whether reasonableness is frequently kept to or violated in the data under scrutiny; (2) tracing the most common types of argumentation schemes employed in the legal communicational encounters in question; (3) revealing the most common type(s) of reasoning relied on in the data under analysis; (4) showing the various types of fallacies committed
in the
aforementioned trials; (5) identifying the way via which audience demand is appealed to in the data of the study; (6) figuring out the presentational device(s) most frequently employed in the data under scrutiny; (7) pointing out the way whereby dialectical relevance is utilized in the data of the work; (8) distinguishing the modes of strategic maneuvering most frequently yielded in such trials; (9) pinpointing the differences and similarities between American civil and criminal court trials; and (10) developing an analytical model to analyze strategic maneuvering in the genre of investigation.
2
To achieve these aims, the following procedures are followed: (1) surveying the relevant literature on legal argumentation and strategic maneuvering respectively; (2) using the model that is developed by the study to analyze the data represented by ten randomly chosen American civil and criminal court trials; and (3) using a statistical means, represented by the Statistical Package of Social Science (SPSS) software, version 19, Chicago, USA, in order to contrast between the results obtained from analyzing the data under investigation and, consequently, statistically verify or reject the hypotheses of this work. Among the conclusions which the study has come up with is that there is no one-size-fits-all version of the theory of strategic maneuvering; it acts in a chameleon-like manner to accord with the field in which it is used.
3
List of Tables Table (1) the Dialectical and Rhetorical Aims of the Four Stages of a Critical Discussion ................................................99 Table (2) the Aspects of SM with Two Dimensions in the FourStage Discussion ...................................................................108 Table (3) the Analytic Components of the Four Stages of a Critical Discussion ..............................................................111 Table (4) Genres of Communicative Activities with their Related Communicative Activity Types .............................114 Table (5) Taxonomy of Tropes ..........................................164 Table (6) Key Information of the Data ..............................195-6 Table (7) Statistics of Reasonableness in the First Stage of Civil and Criminal Cases .......................................................322 Table (8) Statistics of AS's in the First Stage of Civil and Criminal Cases .................................................................324 Table (9) Statistics of Reasoning in the First Stage of Civil and Criminal Cases .......................................................................325 Table (10) Statistics of Fallacies in the First Stage of Civil and Criminal Cases .......................................................................326 Table (11) Statistics of Audience Demand in the First Stage of Civil and Criminal Cases .......................................................327 Table (12) Statistics of Presentational Devices in the First Stage of Civil and Criminal Cases .........................................328 Table (13) Statistics of the Type of Dialectical Relevance in the First Stage of Civil and Criminal Cases .................................329 Table (14) Statistics of the Approach of Dialectical Relevance in the First Stage of Civil and Criminal Cases .......................330 Table (15) Statistics of the Conventional Mode of SM in the First Stage of Civil and Criminal Cases .................................331 Table (16) Statistics of the Non-Conventional Mode of SM in the First Stage of Civil and Criminal Cases ...........................332
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Table (17) Statistics of Reasonableness in the Second Stage by Petitioner and Respondent in the Civil Cases ........................334 Table (18) Statistics of AS's in the Second Stage by Petitioner and Respondent in the Civil Cases ........................................335 Table (19) Statistics of Reasoning in the Second Stage by Petitioner and Respondent in the Civil Cases ........................336 Table (20) Statistics of Fallacies in the Second Stage by Petitioner and Respondent in the Civil Cases ........................337 Table (21) Statistics of Audience Demand in the Second Stage by Petitioner and Respondent in the Civil Cases ...................338 Table (22) Statistics of Presentational Devices in the Second Stage by Petitioner and Respondent in the Civil Cases .........339 Table (23) Statistics of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Civil Cases .............................................................................340 Table (24) Statistics of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Civil Cases .............................................................................340 Table (25) Statistics of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Civil Cases ............................................................................ 341 Table (26) Statistics of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Civil Cases .............................................................................342 Table (27) Statistics of Reasonableness in the Second Stage by Petitioner and Respondent in the Criminal Cases ..................347 Table (28) Statistics of AS's in the Second Stage by Petitioner and Respondent in the Criminal Cases ..................................349 Table (29) Statistics of Reasoning in the Second Stage by Petitioner and Respondent in the Criminal Cases ..................350 Table (30) Statistics of Fallacies in the Second Stage by Petitioner and Respondent in the Criminal Cases ..................351
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Table (31) Statistics of Audience Demand in the Second Stage by Petitioner and Respondent in the Criminal Cases .............352 Table (32) Statistics of Presentational Devices in the Second Stage by Petitioner and Respondent in the Criminal Cases....353 Table (33) Statistics of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................................................................354 Table (34) Statistics of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Criminal Cases........................................................................355 Table (35) Statistics of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................................................................356 Table (36) Statistics of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................................................................327 Table (37) Statistics of Reasonableness by Petitioners in Civil and Criminal Cases ...............................................................366 Table (38) Statistics of AS's by Petitioners in Civil and Criminal Cases .......................................................................366 Table (39) Statistics of Reasoning by Petitioners in Civil and Criminal Cases .......................................................................367 Table (40) Statistics of Fallacies by Petitioners in Civil and Criminal Cases .......................................................................367 Table (41) Statistics of Audience Demand by Petitioners in Civil and Criminal Cases .......................................................368 Table (42) Statistics of Presentational Devices by Petitioners in Civil and Criminal Cases .......................................................368 Table (43) Statistics of the Type of Dialectical Relevance by Petitioners in Civil and Criminal Cases .................................369 Table (44) Statistics of the Approach of Dialectical Relevance by Petitioners in Civil and Criminal Cases ............................369
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Table (45) Statistics of the Conventional Mode of SM by Petitioners in Civil and Criminal Cases .................................370 Table (46) Statistics of the Non-Conventional Mode of SM by Petitioners in Civil and Criminal Cases .................................370 Table (47) Statistics of Reasonableness by Respondents in Civil and Criminal Cases .......................................................371 Table (48) Statistics of AS's by Respondents in Civil and Criminal Cases .......................................................................372 Table (49) Statistics of Reasoning by Respondents in Civil and Criminal Cases .......................................................................372 Table (50) Statistics of Fallacies by Respondents in Civil and Criminal Cases .......................................................................373 Table (51) Statistics of Audience Demand by Respondents in Civil and Criminal Cases .......................................................373 Table (52) Statistics of Presentational Devices by Respondents in Civil and Criminal Cases ...................................................374 Table (53) Statistics of the Types of Dialectical Relevance by Respondents in Civil and Criminal Cases .............................374 Table (54) Statistics of the Approach of Dialectical Relevance by Respondents in Civil and Criminal Cases .........................375 Table (55) Statistics of the Conventional Mode of SM by Respondents in Civil and Criminal Cases ..............................375 Table (56) Statistics of the Non-Conventional Mode of SM by Respondents in Civil and Criminal Cases ..............................376
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List of Figures Figure (1) Walton's (2002) Legal Argumentation Schemes Re-Classified ............................................................................68 Figure (2) Walton's (1995) Types of Relevance .............................89 Figure (3) The Strategic Maneuvering Triangle .........................102 Figure (4) The Eclectic Model for Analyzing SM in American Civil and Criminal Court Trials ...............................................................178 Figure (5) An OT Tableau .............................................................185
Figure (6) Rates of Reasonableness in the First Stage of Civil and Criminal Cases ............................................................................323 Figure (7) Rates of AS's in the First Stage of Civil and Criminal Cases ...........................................................................................324 Figure (8) Rates of Reasoning in the First Stage of Civil and Criminal Cases ............................................................................325 Figure (9) Rates of Fallacies in the First Stage of Civil and Criminal Cases ............................................................................327 Figure (10) Rates of Audience Demand in the First Stage of Civil and Criminal Cases ....................................................................328 Figure (11) Rates of Presentational Devices in the First Stage of Civil and Criminal Cases ............................................................329 Figure (12) Rates of the Type of Dialectical Relevance in the First Stage of Civil and Criminal Cases .............................................330
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Figure (13) Rates of the Approach of Dialectical Relevance in the First Stage of Civil and Criminal Cases ......................................331 Figure (14) Rates of the Conventional Mode of SM in the First Stage of Civil and Criminal Cases ..............................................332 Figure (15) Rates of the Non-Conventional Mode of SM in the First Stage of Civil and Criminal Cases ......................................333 Figure (16) Rates of Reasonableness in the Second Stage by Petitioner and Respondent in the Civil Cases .............................334 Figure (17) Rates of AS's in the Second Stage by Petitioner and Respondent in the Civil Cases ....................................................335 Figure (18) Rates of Reasoning in the Second Stage by Petitioner and Respondent in the Civil Cases .............................................336 Figure (19) Rates of Fallacies in the Second Stage by Petitioner and Respondent in the Civil Cases .............................................337 Figure (20) Rates of Audience Demand in the Second Stage by Petitioner and Respondent in the Civil Cases .............................338 Figure (21) Rates of Presentational Devices in the Second Stage by Petitioner and Respondent in the Civil Cases ........................339 Figure (22) Rates of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Civil Cases ..............................................................................................340 Figure (23) Rates of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Civil Cases ..............................................................................................341 Figure (24) Rates of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Civil Cases ..............342
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Figure (25) Rates of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Civil Cases ...............................................................................................343 Figure (26) Rates of Reasonableness in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................348 Figure (27) Rates of AS's in the Second Stage by Petitioner and Respondent in the Criminal Cases ..............................................349 Figure (28) Rates of Reasoning in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................................350 Figure (29) Rates of Fallacies in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................................351 Figure (30) Rates of Audience Demand in the Second Stage by Petitioner and Respondent in the Criminal Cases .......................352 Figure (31) Rates of Presentational Devices in the Second Stage by Petitioner and Respondent in the Criminal Cases ..................353 Figure (32) Rates of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Criminal Cases ...........................................................................................354 Figure (33) Rates of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in the Criminal Cases ...........................................................................................355 Figure (34) Rates of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Criminal Cases ...........................................................................................356 Figure (35) Rates of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in the Criminal Cases ...........................................................................................357
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List of Abbreviations
AS
Argumentation Scheme
CAN
Candidate
CON
Constraint
DR
Disjunctive Reasoning
DS
Disjunctive Syllogism
EVAL
Evaluator
GEN
Generator
LA
Legal Argumentation
OT
Optimality Theory
RQs
Rhetorical Questions
SM
Strategic Manuevering
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List of Appendices Appendix (1)
The Exhaustive List of All Fallacies
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Contents SUBJECT
PAGE
Preface ……………………………………………….2 List of Tables…………………………………………4 List of Figures………………………………………..8 List of abbreviations…………………………………11 List of Appendices………………………….……..…12
CHAPTER ONE INTRODUCTION 1.1 The Problem …………………………………....………..19 1.2 Aims of the Study………...…….....……………………..21 1.3 Hypotheses………………………....…………………….22 1.4 Procedures …...………………………....…..…………...23 1.5 Limits of the Study ……………………....……………....24 1.6 Value of the Study …………………....…………...……..24
CHAPTER TWO LEGAL ARGUMENTATION
2.1 State-of-the-Art .............................................................26 2.2 Argumentation Schemes (Structures of Inference) ................................................................................... 31
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2.2.1 Argument from Analogy ..................................................33 2.2.2 Argument from an Established Rule ................................35 2.2.3 Argument from Sign and Abductive Argument ..............37 2.2.4 Argument from Position to Know ...................................39 2.2.5 Argument from Verbal Classification ..............................42 2.2.6 Argument from Commitment ..........................................45 2.2.7 Practical Reasoning ..........................................................48 2.2.8 Ad Hominem Argument ..................................................50 2.2.8.1 Abusive Ad Hominem ..................................................51 2.2.8.2 Circumstantial Ad Hominem ........................................52 2.2.8.3 Biased Ad Hominem .....................................................53 2.2.9 Slippery Slope Argument .................................................55 2.2.10 Argument from Popular Opinion ...................................58 2.2.11 Argument from Correlation to Cause ............................61
2.3 Reasoning and Relevance...............................................69 2.3.1 Reasoning: Definition ......................................................69 2.3.1.1 Types .............................................................................70 2.3.1.1.1 Deductive Reasoning .................................................71 2.3.1.1.2 Inductive Reasoning ..................................................72 2.3.1.1.3 Presumptive Reasoning ..............................................73 2.3.1.1.4 Disjunctive Reasoning ...............................................73 2.3.1.1.5 E- Contrario Reasoning .............................................76 2.3.2 Relevance .............................................................................77 2.3.2.1 Relevance Legally Defined: Dialectical Relevance ......79 2.3.2.2. Relevance: Types and Approaches ..............................86
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CHAPTER THREE STRATEGIC MANEUVERING
3.1 State-of-the-Art …………………………………….……94 3.2 Reasonableness and Effectiveness …………………..99 3.2.1 Reasonableness ………………………………………...100 3.2.2 Effectiveness …………………………………………...101 3.2.2.1 Topical Potential ………...……………………….…..103 3.2.2.2 Audience Demand …………………………………..103 3.2.2.3 Presentational Devices ……………………………..105
3.3 Determining the Strategic Function of Argumentative Maneuver .................................................109 3.4 Modes of SM …………………………………………..116 3.4.1 SM with Persuasive Definitions ……………….…….117 3.4.2 SM with Rhetorical Questions …………………….…..119 3.4.3 SM with Praeteritio ………………………….………...121 3.4.4 SM with Dissociation …………………………….…...126
3.5 Persuasive Effects of SM ………………………….…128 3.5.1 Maneuvers with the Same Arguments …………….…..128 3.5.2 Maneuvers with Different Arguments …………….…..130
3.6 Derailments of SM: Fallacies ………………….……131 3.6.1 Fallacies Pragma-Dialectically Analyzed ……………..134
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CHAPTER FOUR MODEL OF ANALYSIS
4.1 Background …………………………………….………158 4.2 Re-Modeling Aspects of SM ………………….……..159 4.2.1 Topical Potential ……………………………….……...159 4.2.2 Audience Demand ………………….………….………161 4.2.3 Presentational Devices ………………………….……..162 4.2.3.1 Substitution Tropes …………………….……………165 4.2.3.1 Destabilization Tropes ………….…………………...152
4.3 Re-Modeling Parameters of SM ……………………167 4.3.1 The First Parameter ……………………………......….167 4.3.2 The Second and Fourth Parameters .…………….…....168 4.3.3 The Third Parameter …………………………..………170
4.4 Stages of a Trial ……………………………….….…...172 4.5 Optimality Theory ………………………………….…178 4.5.1 OT Basic Components …………………………….….179 4.5.1.1 GEN ………………………………………….…...179 4.5.1.2 CON ………………………………………….…...180 4.5.1.2.1 Types of CON ………………………………..180 4.5.1.3 EVAL ……………….……………………………182 4.5.1.4 CAN …………………………………………...…182 4.5.2 Doing Linguistic Analysis in OT ………….………….182 4.5.2.1 Some Illustrative Examples .……………………..184
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CHAPTER FIVE DATA AND ANALYSIS
5.1 Data ……………………………………………………...188 5.1.1 Data Collection ………………………………….……188 5.1.2 Data Description ……………………………………...188 5.1.2.1 Features of the Data ……………………………...188 5.1.3 Identification of the Data ……………………………..191
5.2 Analysis …………………………………………………195 5.2.1 Methods of Analysis …………………………………..195 5.2.2 Illustrative Analyzed Examples ……………………….196 5.2.2.1 SM in Civil Cases ………………………………...196 5.2.2.1.1 Establishing Facts of the Case ………………..197 5.2.2.1.2 Arguing the Case ……………………………..202 5.2.2.2 SM in Criminal Case ……………………………... 254 5.2.2.2.1 Establishing Facts of the Case ………………...255 5.2.2.2.2 Arguing the Case ……………………………...259
5.3 Statistical Analysis …………………………….……. 314 5.3.1 Civil Cases ………………………………………….…..318 5.3.1.1 Establishing Facts of the Case …………………..318 5.3.1.2 Arguing the Case ……………………………......329 5.3.1.2.1 Petitioner ………………………………..….330 5.3.1.2.2 Respondent ……………………………...….339 5.3.2 Criminal Cases …………………………………...…341 5.3.2.1 Establishing Facts of the Case ……………...…..341 5.3.2.2 Arguing the Case ………………………………...343
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5.3.2.2.1 Petitioner …………………………………….343 5.3.2.2.2 Respondent ………………………………….353 5.3.3 Statistical Contrast ……………………………….….355 5.3.3.1 Establishing Facts of the Case ………………...... 356 5.3.3.2 Arguing the Case ………………………………...358 5.3.3.2.1 Civil Cases: Petitioner vs. Respondent ……...358 5.3.3.2.2 Criminal Cases: Petitioner vs. Respondent ….360 5.3.3.2.3 Civil vs. Criminal Cases: Petitioner ………....361 5.3.3.2.4 Civil vs. Criminal Cases: Respondent ……….367 CHAPTER SIX CONCLUSIONS 6.1 Conclusions ………………………………………….373
Bibliography .................................................................................379 Appendix (1) .................................................................................403
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CHAPTER ONE INTRODUCTION 1.1 The Problem In her opening statements in "On Thinking Like a Lawyer", Slaughter (2002:1) precisely describes what working in the legal field requires. She asserts that "It means paying attention to language, but also understanding that words can have myriad meanings and can often be manipulated. It means paying attention to context and contingency". She (ibid.) identifies another task of working in this inexhaustible field: the art of making "arguments on any side of any question". This leads one to confidently claim that what makes the legal domain elusively intertwined is that it chases after a specific goal to be achieved: "to identify the rights and duties that exist among particular individuals or entities under a given set of circumstances" (Vandervelde, 2010: i). Put conspicuously, what characterizes the legal arena is its language which takes advantage of every possible strategy that helps a party achieve their wanted goal, and this is exactly what drives Tiersma (2008: 24) to state that "the nature of legal language is highly dependent on the communicative goals of its users". Such a language, then, needs thorough scrutiny and perusal in order to uncover its interwoven texture, owing to an abundance of rhetorical strategies, various appeals as well as miscellaneous argumentative tactics. Speaking of argumentation leads to state that the legal area really represents the locus where "argumentation can never come to rest"
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(Luhnmann, 1995: 290). It is so because argumentation is part and parcel of every single move in the legal process as a whole (Feteris, 1997: 355). This can be clearly manifested when making a claim by a lawyer on presenting a case to a court, for example, where s/he employs the maximally effective argument(ation) to achieve the required goals. Since argumentation is the pillar of performing (legal) actions felicitously, and since strategic maneuvering is an attempt to increase the potency of people's accounts of their argumentative exchanges in a way that stratifies their own needs (i.e. achieve their own goals), as understood by Zarefsky (2006: 400-1), it follows that the latter must be a crucial constituent of the language used in law. However, since its first launch by Eemeren and Houtlosser in (2002), strategic maneuvering has not been sufficiently studied in the legal field. Even the studies which have been concerned with strategic maneuvering, viz. Mohammed (2009a), Andone (2010), Tonnard (2011) and Hamoodi (2014) have confined themselves to two things: 1. Different genres of analysis (questioning a prime minister, political interviews, and parliamentary debates, respectively). 2. Only a certain aspect of strategic maneuvering (strategic maneuvering with an accusation of inconsistency (in the first and second studies), studying the presentational choices in the third, and tackling some pragmatic concepts (speech, cooperative and politeness principles in the fourth).
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The present work, however, extends its concern to answer the following questions: 1. Is reasonableness frequently kept to or violated in American civil and criminal court trials? 2. What are the most highly frequent argumentation schemes used in American civil and criminal court trials? 3. What is the most common type of reasoning heavily relied on in each of these two types of court trials? 4. What are the fallacies frequently committed in each type of trials? 5. How is audience demand appealed to in the data under analysis? 6. Which presentational devices are frequently employed in the data under scrutiny? 7. How is dialectical relevance utilized in each of the aforementioned trials? 8. What are the modes of strategic maneuvering frequently found in each of the two types of court trials? 9. In accordance with the questions above, what are the differences between civil and criminal court trials?
1.2 Aims of the Study The present work aims to: 1. Show whether reasonableness is frequently kept to or violated in the data under scrutiny.
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2. Trace the most common types of argumentation schemes frequently employed in American civil and criminal court trials. 3. Uncover the most common type(s) of reasoning relied on in the data under analysis. 4. Reveal the various types of fallacies committed in the aforementioned trials. 5. Identify the way via which audience demand is appealed to in the data of the study. 6. Highlight the presentational device(s) most frequently employed in the data under scrutiny. 7. Point out the way whereby dialectical relevance is utilized in the data of the work. 8. Distinguish the modes of strategic maneuvering most frequently yielded in such trials. 9. Find out the differences and similarities between American civil and criminal court trials. 10. Develop a model to analyze strategic maneuvering in the genre under investigation.
1.3 Hypotheses In relation to these aims, it is hypothesized that: 1. Reasonableness is frequently violated in both types of trials. 2. Argument from an established rule is the most frequent type used in civil trials, whereas argument from analogy is the one used in criminal trials.
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3. Inductive reasoning is most commonly relied on in civil trials, whereas criminal trials depend on the presumptive counterpart. 4. Evading the burden of proof by means axiomatically presenting a standpoint is the most frequent fallacy employed in civil cases, and faulty analogy is the one usually used in criminal cases. 5. Audience demand is frequently maintained in each of the civil and criminal trials. 6. No presentational device prevails in both types of the data under analysis. 7. Probative relevance is the type of dialectical relevance frequently utilized in the aforementioned data, while relational is the approach frequently relied on in them. 8. Conventional modes are frequently produced in civil cases, while non-conventional peers are resulted in the criminal cases. 9. There are no differences between American civil and criminal court trials with regard to the aforementioned aspects.
1.4 Procedures To achieve the aims of this work and test the validity of the associated hypotheses, the following procedures are followed: 1. Surveying the relevant literature on legal argumentation and strategic maneuvering.
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2. Using the model developed by the current study to analyze the data of the work represented by ten randomly chosen American civil and criminal court trials. 3. Using a statistical means, represented by the Statistical Package of Social Science (SPSS) software, version 19, Chicago, USA, to first contrast between the results obtained from analyzing the data under investigation and, secondly, statistically verify or reject the hypotheses of this work.
1.5 Limits of the Study This study is limited to: 1. Tackling American civil and criminal court trials as macrocategories (i.e. the study is not concerned with microcategories, say murder trials). 2. Analyzing bench trials, i.e. those which proceed with no jury to decide. Instead, the judge per se plays the role of fact finder and concluder of law. 3. The trials which have been argued in the American Supreme Court during 2010-2013. 4. Embracing what happens in the court room as to the roles played by the conflicting parties (petitioner and respondent). 5. Categorically analyzing strategic maneuvering in two stages of the trial, that is, confrontational and argumentational.
1.6 Value of the Study It is hoped that the present work is valuable to the fields of pragmatics and applied linguistics. It shows the various tactics and
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strategies utilized in court trials in order to achieve the goals of the participants in the legal process. Furthermore, this study is hoped to be useful for laymen as well so that they will not be deceived or manipulated by the 'subtle' language used by those who are responsible for maintaining people's rights at whatever expense.
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CHAPTER TWO LEGAL ARGUMENTATION 2.1 State-of-the-Art Legal argumentation is a vast landscape. It is so due to its interdisciplinary nature as claimed by Feteris and Kloosterhuis (2009:307). The study of legal argumentation, they (ibid.) proceed, "draws its data, assumptions and methods from disciplines such as legal theory, legal philosophy, logic, argumentation theory, rhetoric, linguistics …".
This "cross-disciplinary" touch, as termed by
Dahlman and Feteris (2013: v), is what makes the task of defining legal argumentation (henceforth, LA) difficult to perform (1). Yet, this has not impaired Bernal (2013: 106) from endeavouring to clarify the concept of LA. He (ibid.) believes that "Legal argumentation can be defined as an interlocution or dialogue exercise between everyone involved in legal practice". Besides, he (ibid.: 107) considers it a practical activity mainly concerned with setting out grounds for what ought to be done (as a matter of solution) in various legal cases. However, this definition has in fact complicated the 'definition' task one step further. This can be easily demonstrated when realizing that "the entire process of adjudication is divided into the process of
(1)
It is surprising that despite the importance and attention given to LA, no reference, to the best of the researcher's effort, has ventured to define it. For instance, Feteris (1997, 1999), whose works are the most cited on the topic, starts her discussion with the following statements: "In law, argumentation plays an important role specifically when someone presents a legal claim …" (1997: 355); "someone who presents a legal thesis is expected to put forth arguments to support it" (1999:1), thus in both works she highlights the importance of argumentation in law, no more no less.
26
discovery and the process of justification of a legal decision"(2) (Novak, 2013: 145). Novak's (ibid.) claim goes along with Feteris' (2001: 203) according to which LA is employed in various processes: legislative, legal, and judicial decision-making. Feteris (ibid.) distinguishes two methodological approaches that tackle these processes: normative and descriptive. The former deals with "how a judge can justify his or her decision in a rational way, or how legal discussion can be conducted reasonably". The latter, in turn, concentrates "on real-life process of argument, for instance by investigating argumentative techniques which are effective in convincing a certain legal audience" (For more information on legal audience, see Balter (2001)). As far as the present work is concerned, it is the "discovery process" which needs to be investigated. The reason why the 'discovery process' is selected in preference to the decision-making counterpart is that the judge, generally speaking, need not maneuver (whether strategically or not) as s/he has no advantage whatsoever in adopting a certain position among the conflicting parties (i.e. plaintiff and defendant, legally speaking) [For more information on decision-making process, see Anderson (2013: 113-23). For a different viewpoint, see Feteris (2009: 93-114)]. In strategic maneuvering (henceforth, SM), as illustrated by Eemeren and Houtlosser (2002), the just mentioned parties do want to attain particular goals to the best advantage of the position each party adopts. This makes them follow every possible (2)
It is necessary to allude to the meaning of discovery as viewed by Novak (ibid.): discovering all relevant information concerning a case so that a logical conclusion is reached.
27
track (and trick) that, consequently, helps them achieve their goals; as such it is the discovery process which breathes relevance to strategic maneuvering, the bread and butter of this research. One might wonder here: If SM is the main concern of the study, why LA is the starting point? Feteris (1997:335) and Bertea (2004: 466, 470) give a hand in extracting the relationship between LA and SM. On her part, Feteris (ibid.) depicts argumentation as the backbone of the legal field in general as it invades every aspect of the legal system: from making claims to be accepted, through to presenting a case to a court or pronouncing a decision, up to legislating a certain rule. Bertea (ibid.: 466), in his turn, regards argumentation in law as "an all-embracing and pervasive domain which has consequences for the study of all legal issues". He (ibid.: 470) confirms that its study "carries implications for the way several other legal notions are to be approached". However, SM according to Zarfesky's (2006: 400-1) point of view is an attempt to increase the potency of people's accounts of their argumentative exchanges. He (ibid.) assures that the arguing people not only wish to resolve a disagreement but also resolve it in their own favour. This clearly means that SM may rely on 'tricky and/or deceptive' use of argumentation to attain a particular goal (to the best advantage of a certain party) in a drag-and-drop manner. Since argumentation is an all-embracing domain in law, and since SM dwells totally on it, it goes without saying, then, that LA will automatically impose itself as a trigger for venturing on the topic. Hage (2013: 126) coins this relationship as follows: the legal
28
consequences arrived at via SM are created in the first place by means of argumentation. So, if SM is an end, then LA is definitely the means (For a rapid review of the role of LA in various legal fields, see ibid). It is important to bring to notice that the inter- (or cross-) disciplinary nature of argumentation makes it be approached differently so that different objectives can be achieved. Three major approaches have been offered by Feteris (1997: 358-63): logical, rhetorical, and dialogical. [For a detailed discussion of each of the approaches, see Feteris (1999). For another classification, see Bertea (2004).] As for the first, "the role of formal validity is emphasized as a criterion of rationality for LA and logical languages are used for reconstructing legal arguments" (ibid.: 358). By centering on the form of an argument, this approach has nothing to do with the content of what is said; all it is drastically concerned with is the logical entailment of a certain conclusion from some premises, regardless of whether the content is logical or not. As such, this approach is excluded from this work. On the other hand, what is emphasized in the rhetorical approach is "the content of arguments and the context-dependent aspects of acceptability… [which in turn depends] on the effectiveness of the argumentation for the audience to which it is addressed" (ibid.: 359). The last, i.e. dialogical, approach "requires discussions to accord with certain procedural criteria
of
rationality…:
consistency,
29
efficiency,
testability,
coherence, generalizability and sincerity" (3)(ibid.: 362-3).
Feteris
(ibid.) clearly summarizes the three approaches by making them vary along a formal, material and procedural continuum, with the logical being associated with formal, rhetorical with material, and dialogical with procedural(4). The rhetorical approach is adopted here because it is mainly concerned with context and effectiveness, the pillars of SM (as will be shown later on). Besides, Balter (2001: 381) asserts that "Legal opinions are essentially rhetorical documents" and this makes this approach worth scrutinizing. Despite the fact that the dialogical approach has been dispensed with, we should not hastily think that LA is performed in vacuum, i.e. haphazardly; per contra, "legal argumentation does have an organized procedure to resolve conflicts of opinion in hard cases, namely the trial" (Walton, 2002: 32). In fact it is this trial which makes LA "markedly different from everyday conversational argumentation" (ibid.: 33). [For the differences between everyday and LA, see Walton (2005: 30-1), and Rotolo and Rovers (2013: 1812)]. To conclude, LA is operationally defined in this research as an interlocution or dialogue exercise performed in the trial specifically (3)
These principles, specifically 'sincerity', are the main reason of getting away from adopting this approach. This is so because sincerity, with other things being equal, is very difficult, if not impossible, to ensure in the legal field, as such the procedures might not be that reliable for conducting an objective study. (4) It is important to not to confuse between the methodological approaches (viz. normative and descriptive) and this classification. These three approaches will be attributed as 'perspectival approaches' for the sake of eliminating any possible confusion.
30
in the process of discovery, which is to be descriptively approached from a rhetorical perspective. Finally, it is necessary to notice that the variability of cases in law (whether civil, criminal or any other type) makes LA be configured variably as well in order to attain the goals panted for. It is this variability which has led Toulmin (2003: 15) to inquire about how far argument form in different legal cases is (in)variant as far as aims are concerned. 'Form' (in reference to argument) has been first used by Hastings 1963, as Walton (1996a: xi) claims, interchangeably with the word 'structure' to refer to what is recently known as 'scheme', the illustration of which is the main concern of the following sub-section.
2.2
Argumentation
Schemes
(Structures
of
Inference) Anyone who advances an argument, Eemeren (2001: 19) states, does so with the aim of making the interlocutor accept the standpoint being argued. Thus, the speaker (or writer) will "design the argument in such a fashion that it will convince the listener" (ibid.). Designing arguments in ways that help us convince our interlocutors (of what we want) sheds light on what is meant by argumentation schemes. They play a role in convincing our audience by means of leading them to make certain inferences (of various types) depending on the scheme utilized, and that is why they are sometimes referred to as 'structures of inference'.
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Argumentation
schemes
(henceforth,
ASs)
have
been
differently defined, approached and classified. This miscellaneous treatment represents a handicap rather than a help, because one gets lost as soon as attempting to venture on the topic. Nevertheless, the definition, approach and taxonomy of ASs have been adopted in what serves the aims of this study: Walton's (1996a) work. [For a comprehensive survey of these approaches and their classification, see Garssen (2001: 81-99)] Walton (ibid.: 1) defines ASs in the following way: Argumentation schemes are binding kinds of reasoning when seen as moves, or speech acts in the setting of dialogue. In this pragmatic framework, two participants are reasoning together in a goal-directed, interactive, conventionalized framework called a dialogue. [For other definitions, see Eemeren and Grootendorst (1992a: 96), Eemeren et al. (2002: 96), and Walton (2005:44)] Walton's (1996a) approach and typology are built on one of the several efforts that have variously approached, and consequently, classified such schemes: Perlman and Olbrechts-Tyteca's 1969 New Rhetoric, as Walton (2002: 35) himself asserts. By clarifying his approach, he (ibid.) delivers his own typology of argument forms (5) commonly used in law. (5)
a: Needless to mention that argument here means argumentation as the two are used alternatively by Walton. b: It has been pointed out before that the term 'form' is the past terminology of 'scheme'. In 2002, Walton himself uses the term 'form; in 2006 he replaces it by the term scheme to refer to the same concept mentioned earlier by him. As regards this research, it is 'scheme' that will be used as it is the most widely used in the consulted references. c: For other typologies, see Kienpointner (1986: 275-87), Schellens and De Jong (2004: 265-323).
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Before embarking on reviewing the most prominent schemes in legal reasoning, as Walton (ibid.) confirms, it seems necessary to mention Walton's comment on his taxonomy. He (ibid.) confirms that his schemes are neither deductive nor inductive-based reasoning; they fit into another type of reasoning – presumptive (For the various types of reasoning, see 2.3.1.1 below): "these forms do not generally represent kinds of arguments that are either deductively valid or inductively strong. In fact, they all seem to fall into the third category of argument, those having some presumptive weight". Included below are the most common argumentation schemes in law as surveyed and illustratively exemplified by Walton (2002, 2005, and 2006). [For the exhaustive list of schemes, see Walton et al. (2008). For a brief tackling of the schemes, see Walton (2013)]
2.2.1 Argument from Analogy Walton (2002: 35-9; 2006: 96-100) asserts that this is a very common scheme in the Anglo-American law. It is a case-based reasoning where one case is held to be similar to another in a particular aspect. In this scheme, similarity is arrived at by means of breaking an argument down into individual premises, thus specifying the points of similarity and/or dissimilarity between the two supposedly similar cases. Argument from analogy has the following scheme as drawn in (ibid.): MAJOR PREMISE: Generally, case C1 is similar to case C2. MINOR PREMISE: Proposition A is true (false) in case C1. CONCLUSION: Proposition A is true (false) in case C2.
33
[For different treatments of this scheme, see Kloosterhuis (2005: 47183), Feteris (2005: 459-70), Kaptein (2005: 497-507), and Weinreb (2005)]: However, not only similarity should be available in this scheme; familiarity of the 'precedent' case should be at work as well in order for the audience to be strongly persuaded that A is true (false) in a certain case. Walton (2002: 36-7) cites and explains the following illustrative example: (2.1) As in prospecting for gold, a scientist may dig with skill, courage, energy, and intelligence just a few feet away from a rich vein – but always unsuccessfully. Consequently, in scientific research the rewards for industry, perseverance, imagination, and intelligence are highly uncertain (See also pp. 211-2 below). The comparison in this argument is made between two activities, Walton (ibid.) comments: scientific research and prospecting for gold, where the points of similarity are exactness and methodology. This means that both activities require hard working in addition to following the same procedure of searching for a certain thing (a theory, for instance, in the first and gold in the second). To arrive at the target inference communicated by this argument, we will apply the scheme mentioned above: MAJOR PREMISE: Generally, gold prospecting is similar to conducting a scientific research. MINOR PREMISE: Gold prospecting is liable to fail.
34
CONCLUSION: Scientific research is liable to fail as well. The inference, then, is that: just as gold prospecting can fail despite all hard working, so can a scientific research as the two move within the same general framework of similarity (i.e. exactness and methodology). And this broad (or general framework of) similarity is referred to, by Walton, as "the contextual match on an over-all basis of comparison". So, it is not the number of similar characteristics that makes this argument persuasive; the more the contextual match between two cases is closer, the stronger the argument becomes. [Walton (2006: 98-9) states that this type of argument can be used in an extremely aggressive way that embraces all types of unstated and questionable assumptions into the argument. For more details on this point, see ibid.]
2.2.2 Argument from an Established Rule This argument, as Walton (2002: 39-41) notes, is not specific to LA only; it is a common feature of our daily life. It goes like this: "initially, there is some agreement reached, typically within an institutional framework, on putting some rule into place". A very common case, in the educational situation, is invoked by Walton (ibid.) to clarify more what he has in mind. Fixing a deadline for handing in essays and some students are late to react is a good case to exemplify: (2.2)
Student: Would it be OK if I handed in my essay after
the weekend? Professor: Today is the deadline. That's the rule.
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Student: I have another assignment due at the same time, I can't do a good job on both unless I have more time. Professor: Your planning and how many courses you take are up to you. I can't grant you an exemption for that reason. Here, the professor has made his argumentation rest on the already established and agreed upon rule that there is a deadline for handing in assignments; once the rule is violated, the other party loses the right to object unless giving some reasonable grounds to reconsider that rule. Walton (ibid.: 41) characterizes this argument by two features: 1. Its need to be supported by another argument, argument from analogy, so that one's premise becomes stronger and persuasive. 2. In order to eliminate any subjectivity (which can include sympathy) in presumption, this latter should have a weight gained by means of meeting the requirements (or conditions) set in place by the rule already agreed on. Thus, "a rule sets up an inference that has some weight in making a decision". 3. The third feature is added by the present study to further characterize this type of argument: elasticity. Argument from an established rule is elastic in the sense that it shows great flexibility in application as it varies from case to case, and this is what Walton (ibid.) means by "Each case needs to be judged on an individual basis".
36
These remarks, especially the last, justify the absence of a particular tripartite scheme (i.e. major premise, minor premise, and conclusion) on the same par with the other schemes.
2.2.3 Argument from Sign and Abductive Argument As the title suggests, this is a sign-based argument: a particular finding, Walton (ibid.) discusses, is taken as evidence of the existence of some feature or event in a given case. For instance, somebody may see trials which can be recognized as belonging to a bear. So, seeing such tracks in a certain place leads one to conclude that there was a bear there some time ago. Below is the scheme Walton (ibid.: 42) proposes for this argument: MAJOR PREMISE: Generally, if this type of indicator is found in a given case, it means that such-and-such a type of event has occurred, or that the presence of suchand-such a property may be inferred. MINOR PREMISE: This type of indicator has been found in this case. CONCLUSION: Such-and-such type of event has occurred,
or the presence of such-and-such a type
of property may be inferred, in this case. Walton (ibid.: 43) exemplifies the testimony of a police officer, concerning the sobriety of a driver, to clarify this scheme. In this case, the police officer may list the following as sings that the driver was drunk: losing control over his car (in that the car was weaving), the driver was unsteady on his
37
feet, alcohol clearly smelled out of him, he had watery or bloodshot eyes, and he had slurred speech. This means that, according to the scheme above: MAJOR PREMISE: Generally, if a driver is found losing control over his car, standing unsteadily on his feet, having alcoholic smell, with watery or bloodshot eyes, and speaking in a slurred manner, it means that the driver is drunk. MINOR PREMISE: This type of indicator has been found in this case. CONCLUSION: The driver in drunk, in this case. Argument from sign exhibits the following features: 1. It is highly contextual in that it needs to be considered in the light of the facts found in a certain case. And that is why the phrase "in this case" is repeated twice in the scheme. 2. Sometimes, it cannot be totally reliable all by itself; it is often intermingled with another type (argument from expert opinion, see below). This is due to its being a kind of guess work, as Walton (ibid.: 42) stresses. 3. This argument draws heavily on assumptions arrived at via the context of a specific case. This makes them (i.e. assumptions) in need of verification and further scrutiny and investigation. Accordingly, whenever a new piece of evidence comes in, it cancels the previous ones; and this is what puts defeasibility on the argument from sign. In fact, Walton (ibid.: 43-5) unsuccessfully thinks that this argument is mirrored by another – the abductive argument. In the
38
abductive counterpart, the inference "proceeds from observed facts or appearances to a conclusion that explains those appearances". Defeasibility also
characterizes
this
argument
whereby the
conclusion remains hypothetical because it is liable to be replaced by another if further investigation shows better explanation to a particular case. Consequently, the following scheme accurately describes this argument: F is a finding or given set of facts. E is a satisfactory explanation of F. No alternative explanation E' given so far is as satisfactory as E. Therefore, E is plausible, as a hypothesis. The reason why Walton (ibid.) is unsuccessful is that 'sign' and 'abduction' exist in tandem; if abduction is the trigger, then sign is what pulls it to shoot a highly contextual inference specified to a certain case. The existence of some sign will automatically activate abduction; in a nutshell no sign, no abduction. His discussion would have a more accurate point if he clarified this assimilation and not listing it as two separate schemes. What proves this objection is that in his later book, Walton (2006) mentions the same argument under the title "Argument from Sign" with no reference to abduction at all.
2.2.4 Argument from Position to Know This is a source-based inference where credibility of the source is at work owing to its being the ground on which the whole argument rests. For example, if a tourist is lost in a town, s/he can ask the policeman about the required place. What the policeman says will be taken for granted as he knows his city very well, that is, he is in a
39
position to guide a lost person to some place. [Walton (2008: 209) offers another term for this argument: "argument from authority"; however, the terminology that will be followed is the one proposed in (2002)]. This argument is schemed as follows (cited in Walton, 2002: 45): MAJOR PREMISE: Source a is in a position to know about things in a certain subject domain S containing proposition A. MINOR PREMISE: a asserts that A is true (false). CONCLUSION: A is true (false). Walton (ibid.: 46-51) brings to the forefront the idea that this argument is used as an umbrella term to embrace two other subarguments very commonly used in law: argument from testimony, and argument from (or appeal to) expert opinion. What distinguishes the first, Walton (ibid.) explicates, is the minor premise whose proposition refers to what is called 'testifying': "a special kind of speech act that can only take place when the witness goes on record as certifying that what she says is the truth of the matter". For example: (2.3) CONCLUSION: Peter shot George. PREMISE: Witness a states that Peter shot George. Walton (ibid.: 47) claims that what makes this argument plausible is that the additional premise given by a, as a witness, who is in a position to know about whether Peter really shot George or not,
40
either by seeing or hearing, and his testimony is taken as evidence in the trial. The second, in turn, as Walton (2006: 86) defines it, "is based on the assumption that the source is alleged to be in a position to know about a subject because he or she has expert knowledge of that subject". The following scheme represents the latter type: MAJOR PREMISE: Source E is an expert in subject domain S containing proposition A. MINOR PREMISE: E asserts that proposition A is true (false). CONCLUSION: A is true (false). For instance, (2.4) MAJOR PREMISE: Dr. Phil says that tipping lowers self-esteem. MINOR PREMISE: Dr. Phil is an expert in psychology, a field that has knowledge about selfesteem. CONCLUSION: Tipping lowers self-esteem. It might jump to one's mind: Well, is there any difference between these two sub-types as, at face value, both instantiate the argument from position to know in a similar manner? Actually there are two: 1. As Walton (2002: 49) himself confirms, argument from expert opinion is fallible due to the fact that experts, like other humans, can be mistaken (for even Homer sometimes nods). They are as such because they spell out their accumulative
41
expertise that need not fit all situations (after all there is no one size which fits all). This makes this very sub-type be appealed to with great care owing to the fact that any chance of mistake can, and will definitely, lead to a disaster (concerning a party's fate). Argument from testimony, by contrast, is taken for granted (when the credibility of the witness is already settled) because the witness is supposed to have something to do with a specific case in one way or another (for example, s/he may have seen, heard, or even been part of the case itself). This latter will hand us over the second difference. 2. Because the inexpert witness is as such, s/he is supposed to be part of the context of the case in whatever way, and that is why the witness's credibility needs to be established. The expert, on the other hand, is relied on due to her/his already established credibility obtained from her/his expertise or competence in some field. In accordance with these two points, it might be acceptable to claim that the first (i.e. argument from testimony) is obligatory as every trial needs a witness, whereas the second is optional for not all trials resort to expert opinions.
2.2.5 Argument from Verbal Classification This is a very significant scheme which is used unconsciously sometimes owing to its non-explicit nature which gives it an axiomatic tint making it pass unnoticed or sneak by, as Walton (ibid.: 51) emphasizes. It is the argument which "concludes that a particular thing has a certain property on the grounds that this thing can be
42
classified under a general category of things that have this property" (Walton, 2006: 128). [It is necessary to allude to the point that 'argument' and 'scheme' are used interchangeably in this sub-section as they represent two facets of the same coin.] Walton (2002:51) has previously devised this scheme as follows: MAJOR PREMISE: If some particular thing a can be classified as falling under verbal category C, then a has property F (in virtue of such a classification). MINOR PREMISE: a can be classified as falling under verbal category C. CONCLUSION: a has property F. The following example translates this scheme into propositions: (2.5) All dolphins are classified as mammals. Flipper is a dolphin. Therefore, Flipper is a mammal. It can be easily remarked that this scheme dwells heavily on deductive reasoning (Cf. 2.3.1.1.1 below) whereby it is impossible for the conclusion to be false if its premises are true, the matter which Walton (ibid.) declares. Walton (2006: 129) draws our attention to the basis on which one stands in classifying some thing(s). He assumes that classifying may be due to scientific terminology, common usage in everyday discourse, or even be legal definition. All in all, whatever the case might be, some terms are easy to deal with in that they can be easily defined; others are subject to disputation as they can be stipulatively
43
approached. And this presents one of the problems of dealing with this scheme. Argument from verbal classification, though common and important it is, adduces certain challenges that need to be 'handled with care': 1. Vagueness: It lends itself to the opportunity of being vague because, as Walton (2002: 52) justifies, it is "unclear whether the thing a really falls under category C or not". He explains this further citing this example: (2.6) Bob is rich. Walton (ibid.: 52) argues that 'rich' is vague as a term as it refers to no definite line (or dollar cut-off) according to which a person is classified as rich or not (say a million dollars). Defining rich can be totally stipulative depending on what one has in mind, and here is exactly where the dispute about defining such terms may arise. In some extreme cases, such term-disputes can shift to name calling and ad hominem attacks (Cf. 2.2.8 below). 2. Manipulation: They can be manipulated in an aggressive way to corner an opponent by making a biased verbal classification, as Walton (2006: 131) claims and exemplifies: (2.7) Suppose that two people are having a theological dialogue on whether God is trinity or unity, and the proponent of the trinity argues against the other using this argument: Your thesis is heresy. Therefore, your thesis is wrong.
44
What can be inferred from this argument, at first sight, is that anything classified as heresy is bad deriving this sense from the pejorative connotations of 'heresy'. Yet, at closer inspection, Walton (ibid.) proceeds, it seems that this term is stipulatively defined as any view that is against church dogma. In other words, the trinity-proponent has manipulatively used the term by attaching it to church dogmas all of a sudden, whereas in other contexts, this term is not used as such; heresy is heresy regardless of church references. In a nutshell, argument from verbal classification is sometimes used to silence the opponent in a tricky way that passes unnoticed with a 'naïve' arguer (or defendant), so to speak.
2.2.6 Argument from Commitment It is that kind of argument whereby an arguer's commitment to a proposition leads her/him to concede another following, automatically, by inference from the former (Walton, 2002, 2006). The 'automatic' inference that follows from the stated premise is depicted by the following scheme: MAJOR PREMISE: If arguer a has committed herself to proposition A, at some point in a dialogue, then it may be inferred that she is also committed to proposition B, should the question of whether B is true become an issue late in dialogue. MINOR PREMISE: Arguer a has committed herself to proposition A at some point in dialogue.
45
CONCLUSION: At some later point in the dialogue, where the issue of B arises, arguer a may be said to be committed to proposition B. (Walton, 2002:55) This example, given by Walton (2006: 117), makes clear the idea one step further: (2.8) Bob: Ed, you are a communist, aren't you? Ed: Of course. You know that. Bob: Well, then you should be on the side of the union in this recent labor dispute. The second proposition has been reached from Ed's asserting his being a communist. This confirmation automatically breeds inferences having to do with communism (just like being on the side of the union in the labor dispute). To put in another way, since you like apples, then you must like apple juice as the latter follows from the former, which is not so! There is a chance, in this argument, that one party attaches a proposition (i.e. inference) which is not intended by the other party at all. Somebody might be a communist (or appleinclined person), yet it is very probable that this person does not stand on the side of all related matters to the issue under discussion (be it communism or apple-inclination). This argument, as a result, lends itself to defeasibility because if an arguer denies his commitment to a certain inference (following from the first premise) stated by the other party, then the latter must so do, i.e. cancel the inference accordingly. This means that a person's commitment is not
46
to be thought as absolute or definite; it can be changed in accordance with the availability of new information or evidence that can alter the track of argumentation as a whole. Like all the schemes discussed thus far, this one has a major problem of its own: being abused. Walton (2002: 54) shows two ways to do this: 1. Distorting or exaggerating an opponent's position when attacking the person per se instead of the position adopted (Cf. 2.2.8 below). Walton (2006: 119) gives the following example: (2.9) Stewart and Margo are having a dispute on environmental issues, where Margo has taken a moderate position to the effect that development should be allowed only if it is sustainable and efforts are made not to pollute the environment. Stewart replies, "I see that you are one of those extreme protectionists who think that the earth should be a pristine wilderness where all industrial development is forbidden". (italics mine) It can be clearly noticed from the italicized lines that Stewart attacks Margo himself and not the position the latter adopts, and this is, in fact an erroneous (or more accurately, a fallacious) move one can use in a dialogue to throw a distracting effect (Cf. 2.4.2.1 below). 2. The other way in which this argument is abused is when inferring 'explicitly' that a respondent is inconsistent in her/his commitments. Walton (ibid.) cites this example:
47
Let's suppose that in the previous dialogue between Bob and Ed (see e.g. (2.8) above) that Ed has admitted his support to the management in the recent labor dispute. In such a case, Bob can negatively seize this chance to issue the following argument: (2.10)
Bob: You are a communist, aren't you? Ed: Of course. You know that I have often said
so. Bob: Well, you say you are a communist, but you were against the union side in the recent labor dispute, showing that you are not a communist. In this case Bob has followed the 'wanna a rabbit take a rabbit, wanna a deer take a rabbit' manner. The negative fashion of argument from commitment, as Walton calls it, corners an arguer in a place where it becomes hard for her/him to get out of the labyrinth created by the other 'subtle' party. Such tactic dresses inconsistency (and sometimes incredibility) to an arguer as it is the arguer who has been attacked or refuted not the position. And this, in turn, will put the illogical and hypocritical impression on the arguer.
2.2.7 Practical Reasoning Walton (2002: 56-8) adds to the long list of argumentation schemes another element describing it as "especially important in legal argumentation" – practical reasoning. It is defined as "a goal-directed,
information-based,
action-guiding species
of
reasoning that combines an agent's [i.e. reasoner's] goals with
48
possible alternative courses of action, in relation to the agent's information on its given circumstances". Translated into pragmatics, a reasoner can modify her/his speech acts in accordance with the incoming counterparts from the other in a way which gives room for the progression of the dialogue in a goal-directed manner. This means that practical reasoning consists of a chain of practical inferences (arrived at via the manner just described) to yield the following structure of inference: A is my goal. To bring about A, I need to bring about B. Therefore, I need to bring about B. Walton states that the letters A, B, C, etc. stand for propositions that can be made true by the agent; the latter per se is referred to by the first person pronoun 'I' or 'my'. To clarify more, Walton (2006: 300) provides the following: (2.11) Suppose my goal is to close the door, and the means to do this is to turn the doorknob and push the door. Therefore, I ought (practically speaking) to turn the doorknob and push the door. As in the other types, practical reasoning in no exception as regards having problems mainly represented by defeasibility. It is suffered from because this kind supports a conclusion tentatively only meaning that it is liable to change with the appearance of new pieces of information or evidence. Walton (ibid.) asserts that this type is of special importance in criminal cases as it has to do with the
49
determination of guilt, i.e. it plays a pivotal role in judgement of intent. [For more details this type, see Fairclough and Fairclough (2012: Ch.2).]
2.2.8 Ad Hominem Argument It is that sort of argument in which the arguer per se is the focus of criticism and not the argument s/he puts forward. It refers to the personal attack an arguer performs against another's personal circumstances, trustworthiness and character (Walton, 2008: 170). Previously, Walton (2002: 59) has indicated the case where this very attack comes to play a role in argumentation. It is only when arguments rely for their acceptability on the credibility of their advancers that this argument is activated. More specifically, the core of a personal attack in this argument is a person's veracity and nothing else (say the way someone looks, and this is how it can be differentiated from an insult). In order to draw the scheme of this argument, Walton (ibid.: 60) finds it necessary to bring to notice the point that this type has to be situated in a certain context composing of three participants. The first is the respondent (who puts forward an argument), the second is the proponent (who attacks the former), and the third is the audience (before whom the whole thing is done for the sake of attaining persuasion). Thus, ad hominem has the following scheme: MAJOR PREMISE: If the respondent is not credible, then his argument should not be judged to be (very) plausible.
50
MINOR PREMISE: The respondent is a bad person (ethically speaking), and therefore he is not credible. CONCLUSION: The respondent's argument should not be judged to be (very) plausible. Despite the fact that ad hominem argument dwells on personal attack; this very attack takes various forms yielding the next to come types: abusive, circumstantial, and biased. 2.2.8.1
Abusive Ad Hominem
This is the simplest kind of personal attack owing to its directness of vilifying the character of the other. This character vilification is binary branched: bad moral character and /or bad truthfulness character. The following scheme, as designed by Walton (2006: 123), better translates the explanation above: CHARACTER ATTACK PREMISE: a is a person of bad character. CONCLUSION: a's argument should not be accepted. Walton (2008: 173) provides the following as an example on the untrustworthiness based on previous immoral conduct of the person: (2.12)
Richard Nixon's statements on foreign affairs in
relation to China are untrustworthy because he was forced to resign during the Watergate scandal.
51
2.2.8.2
Circumstantial Ad Hominem
It is, as the title suggests, a circumstance-based ad hominem. It has to do with: the questioning or criticizing of the personal circumstances of an arguer, allegedly revealed, for example, in his actions, affiliations, or previous commitments, by citing an alleged inconsistency between his argument and these circumstances. The charge, 'You don't practise what you preach' characteristically expresses the thrust of the circumstantial ad hominem argument against a person.
Walton
(2008:
170) The following is the scheme, previously put by Walton (2002: 61-2), intended for this sub-type: MAJOR PREMISE: Anyone who asserts proposition A, but then reveals that she is not personally committed to A (or is even committed to the opposite of A), is ethically a bad person and not a credible arguer, and her argument should not be judged to be plausible. MINOR PREMISE: This person asserted proposition A, but she then revealed that she was not personally committed to A (or that she was committed to the opposite of A). CONCLUSION: This person is ethically a bad person and not a credible arguer, and her argument should not be judged to be plausible. The following example, cited in Walton (2006: 125), illustratively embodies this scheme:
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(2.13) Parent: There is strong evidence of a link between smoking and chronic obstructive lung disease. Smoking is also associated with many other serious disorders. Smoking is unhealthy. So you should not smoke. Child: But you smoke yourself. So much for your argument against smoking! The child's argument in this example is a circumstantial ad hominem built on an inconsistent commitment addressed to his father because he preaches what he, himself, does not practise. Up to this point, it seems necessary to put a finger on the difference between the two varieties of ad hominem tackled thus far. The circumstantial ad hominem "requires the allegation of a contradiction as the basis of the personal attack". The other, in its turn, does not require so. It merely conducts a personal attack, as Walton (ibid.: 124) thinks, by "innuendo or suggestion, with no facts presented to back up the allegation". 2.2.8.3
Biased Ad Hominem
The last sub-type is interestingly attributed, by Walton (2008: 170), as "poising the well" type of argument due to its concern with a hidden agenda owned by an arguer who is attacked on the basis of her/his supporting a particular side so that a certain gain can be obtained. Plainly put, the core of this type is that the objectivity or sincerity of an arguer is at stake because s/he has something to gain by advocating a certain argument. The scheme, as given by Walton (2002: 62) is written as follows:
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MAJOR PREMISE: If a person is biased, he cannot be trusted to tell us what he really thinks about an issue he is questioned about. MINOR PREMISE: This person is biased. CONCLUSION: This person cannot be trusted to tell us what he really thinks about this issue he has been questioned about. The following example, provided by Walton (2008: 185), might suffice to clarify the picture more: (2.14) Bob and Wilma are discussing the problem of rain acid. Wilma argues that reports on the extent of the problem are greatly exaggerated and that the costs of action are prohibitive. Bob points out that Wilma is on the board of directors of a U.S. coal company, and that therefore her argument should not be taken at face value. Here, the inference which is to be taken into consideration is that Wilma is not a trusty person as far as her impartiality is concerned. It is claimed as such due to the fact that she is a board member of a US coal company, thus she must have some personal benefit in deescalating any arguments standing against her (and the company's) welfare. [For a detailed expose' of ad hominem arguments, see Walton (1998a).]
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2.2.9 Slippery Slope Argument This is a negative consequence-based argument(6) where the focal point is the bad outcome predicted to occur because of what is referred to as 'slope effect'. Slope effect can be summarized as being hooked at a point of no return: Once an arguer takes a first step, "it will lead to a progression and a series of repeating, connected events that will propel a series of events faster and faster so that, at some point, there will be no turning back" (Walton, 2002: 64). Walton (2006: 107) draws the following scheme for this argument: FIRST STEP PREMISE: A0 is up for consideration as a proposal that seems initially like something that should be brought about. RECURSIVE PREMISE: Bringing up A0 would plausibly lead (in the given circumstances, as far as we know), to A1, which would in turn plausibly lead to A2, and so forth, through the sequence A2, …, An. BAD OUTCOME PREMISE: An is a horrible (disastrous, bad) outcome. CONCLUSION: A0 should not be brought about. What follows is an example on the decriminalization of marijuana where the argument passes through a series of stages, as Walton (2002: 64) mentions: (6)
Argument from consequence, as Walton (2006: 104) puts it, "cites allegedly foreseeable consequences of a proposed action as the premise, and the conclusion is inferred that this course of action is not recommended". It has positive and negative facets, the latter of which is the first seed of the slippery slope argument. For more details on this type, see Carbonell (2013: -19).
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(2.15) Once marijuana is made legal, it will come into common use. Then there will be a climate of acceptance for it, and its sale will even become controlled by the government. Once many people start using marijuana on a regular basis, they will become addicted. The people will get used to taking drugs, and many will start using stronger drugs, like heroin. The general climate of acceptance for drugs, will not result in many more people using harder drugs, but in enforcement problems in discouraging the widespread sale and use of hard drugs of many kinds. The final result will be a massive trade in hard drugs controlled by criminals, and a huge population of users who are addicted to drugs, with the accompanying social problems. In the end, we will have a stoned out society in which nobody does productive work, and all are supported by government social work clinics that supply them with drugs, until, in the end, the whole civilization collapses. Walton (ibid.: 65-6) delivers the following features of the slippery slope argument (Terminology is mine): 1. Sequentiality: It refers to the sequential steps made by an arguer that are escalated till reaching a point of no return (as in the example just cited). 2. Indefiniteness: That point of no return is grey, i.e. it does not have clear-cut boundaries delimiting its beginning and terminations – it is not well defined. Walton neatly explicates this feature by making the following metaphor. Suppose that
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we have a pile of sand (or a heap) on a table, and someone is taking away one grain of sand at a time, is it possible to tell when will exactly that heap collapse so it can no longer be described as a heap? Surely not. This means that 'heap' is not defined in relation to an exact number of grains (that is, propositions in the case of an argument), it is just that an indefinite moment will come whereby the pile (or argument) comes to an end. 3. Componentiality: Since this argument mainly consists of some other sub-arguments, which together collaborate to make a slope, it should make reference to some of the previously mentioned arguments, especially argument from precedent (i.e. analogy). The present study, however, posits an all-inclusive opinion concerning the componential analysis of the slippery slope argument. It is not only argument from precedent (or analogy) that plays a role; but also all the other types discussed so far breathe relevance to the slope configuration. Stepping back to have a look on the example just mentioned, that is, (2.15) might provide us with a more illustrative image: 1. Argument from Sign: Where marijuana is the sign that has fired all the propositions put forward later on. 2. Argument from Verbal Classification: Where marijuana has been foreshadowed by the umbrella of heroin in that both cause addiction.
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3. Practical Reasoning: In order to prove that marijuana is bad, the arguer should manifest its being a hard drug, which has been just done, having a harmful effect. Once proved as such, marijuana should not, then, be decriminalized.
2.2.10 Argument from Popular Opinion This is the type of argument, Walton (2006: 91-6) discusses, which hinges upon what is generally accepted by the majority of people, that is, if (nearly) everyone accepts A as true, then A becomes generally accepted without dispute – it becomes part of people's common knowledge. This argument can be represented by the following scheme: GENERAL
ACCEPTANCE
PREMISE: A
is
generally
accepted as true. PRESUMPTION PREMISE: If A is generally accepted as true, that gives a reason in favour of A. CONCLUSION: There is a reason in favour of A. (ibid.: 91) For example: (2.16) PREMISE: It is generally accepted by those who live in Cedar Rapids that the lake is a good place to swim in the summer. CONCLUSION: The lake is (plausibly) a good place to swim in the summer. (ibid.: 92) What is inferred from this example is that since the aforementioned people generally accept the lake as a good swimming place, then it is (plausibly) so because of the people's general
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atmosphere of acceptance mainly arrived at via their being in a position to pass such a judgement on the place. The last sentence sheds light on a very important feature of this type of argument: intrinsic weakness. Walton (ibid.) asserts that this very argument is weak by itself simply because the majority can very possibly be wrong with regard to a certain opinion they hold. To overcome this obstacle, this argument tends to combine with 'position to know' arguments (Cf. 2.2.4 above). It is necessary to pinpoint the process of joining more than one type of argument to make a solid chain of argumentation as is the case with the 'popular opinion' just alluded to. Walton (ibid.) calls such a process 'bolstering' whose chief goal is increasing the plausibility of the weakest argument (i.e. the popular opinion). In the same reference, Walton draws our attention to the point that the practical forms of the argument from popular opinion are called 'argument from popular practice'. Again, this form is connected to 'position to know' type of argument because 'familiarity with a practice is a basis for being in a position to know whether it is generally acceptable or not'. The popular practice has the following scheme, as cited in (ibid.: 93): A is a popular practice among those who are familiar with what is acceptable or not with regard to A. If A is a popular practice among those familiar with what is acceptable or not with regard to A, that gives a reason to think that A is acceptable.
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Therefore, A is acceptable in this case. The following example, given by Walton (ibid.), clarifies the idea more: (2.17) A husband and wife are visiting Holland for the first time and have rented bikes. They have started cycling along on a bicycle path in Holland. He is riding behind her, thinking that riding side-by-side is not allowed. She calls back to him: "Ride beside me, so we can talk". He replies: "I am not sure it is allowed". She replies: "Everyone else is doing it". The popular practice, here, is highlighted by the inference that since the other couples who are likely to be from the local area, and therefore are not all tourists, are riding side-by-side, it is, then, allowed to do so due to the fact that they are in a position to know what is (not) generally accepted in their own place as far as riding bikes is concerned. As with the other types previously reviewed, this type does not pass with no problems to comment on. The main problem which this type suffers from is the lack of backing up the popular opinion with reasons that solidify it more. And it is this lack which lies behind the inherent weakness that needs to be bolstered in this argument. Put another way, appeal to popular opinion does not dig deep for the reason of making a certain opinion popularly accepted; it is considered sufficient to invoke what is generally accepted as it is to be the solid ground to stand on, which actually might not be. Up to this point, the following question can, very possibly, leap to one's mind: since both appeal to popular opinion and the other
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to expert opinion move within the same framework of position to know (and authority by association), then why the latter has not been nested on the same par with the former? The answer to this question can be conspicuously elicited when recalling argument from position to know (Cf. 2.2.4 above). The focal point in the position to know argument is credibility of the source, which is already established in the expert, whereas in the popular it is the foible which can easily be attacked by an opponent as there is no credibility to be adhered to with the absence of a specific source to invoke and/or address. The other point which distinguishes between the two 'opinion' arguments is the scope of acceptance. What makes a particular opinion 'popular' is the disseminating acceptance among people even if the opinion might not be acceptable from, say, a legal point of view. The expert opinion, by contrast, is just the reverse; it might be acceptable from a legal viewpoint and quite unacceptable from a popular perspective. Thus, the scope in the popular is very much wider than its counterpart in the expert (For an exhaustive account of each of expert and popular opinions, see Walton (1998b, and 1999) respectively).
2.2.11 Argument from Correlation to Cause This is the last structure of inference (i.e. argumentation scheme) that is commonly used in legal argumentation as Walton (2002: 67) argues. In spite of commonness, causality is a controversial matter among scholars (especially philosophers) because there is no exact theory or body of knowledge which gives a hand in understanding what this notion precisely means. In law,
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however, it is approached practically and contextually, as Walton (2006: 100-4) illuminates. What causality means, legally speaking, is that if we have a state of affairs A which causes another state of affairs B, this means that A is something that can be brought about (or stopped), and when it is brought about (or stopped), then B is also brought about or stopped as well. In other words, the occurrence of the first event is a necessary condition for the occurrence of the second. Moreover, there should exist a statistical correlation between the two events so that they can be objectively considered as correlatively causing each other, as Walton (ibid.) thinks. The scheme which depicts this structure of inference is as follows (cited in ibid.: 101): CORRELATION PREMISE: There is a positive correlation between A and B. CONCLUSION: A causes B. Walton (ibid.) cites the following example as an attempt to explain the idea behind this type of argument: (2.18) If a significant statistical correlation is found between reduced incidence of heart attacks and drinking red wine, the tentative conclusion may be drawn, hence, that drinking red wine is the cause of the reduction in heart attacks. Unless otherwise proved not to be, drinking red wine (that is, state of affairs A) is the cause in reducing heart attacks (that is, state of affairs B).
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In the same place, Walton rings the bell of caution that causality is not a purely statistical relationship as is the case with correlation, so "the inference from correlation to causation cannot be evaluated on a purely statistical or numerical basis". Instead, it has to be viewed from practical and contextual corners, as mentioned above. This feature paves the way for talking about the main difficulty with this argument, which is the same suffered from in almost all other types tackled in this sub-section: defeasibility. Owing to the fact that there can exist no exact statistical relationship between two events, then any inference elicited at a certain point remains tentative because there is always a possibility of the appearance of new pieces of information which can very probably change the whole track of argumentation. It is only when no new evidence comes to the scene that the inference at hand can be taken as it is and forwarded for further processing. After explaining and discussing the ASs most commonly used in the legal field, it has been interestingly remarked that there are three features which glue all the schemes together: interrelatedness, defeasibility, and bolstering. Each is elucidated below: 1. Interrelatedness: All the schemes listed above are related to each other in one way or another. This can be manifested by re-configuring the relationship between the various schemes in the following manner: - Ad hominem is interrelated with both verbal classification (Cf. 2.2.5) and commitment (Cf. 2.2.6) above.
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- Slippery slope in interrelated with almost all the schemes (Cf. 2.2.9) above. - Each of the arguments 'position to know', 'commitment', and 'ad hominem' is credibility-based, i.e. credibility of the source is an all-important factor around which the argument centers. This means that the three apparently different arguments have in common the feature of being concerned with credibility of the source. This leads us to ask how can we differentiate between each since the three stand on the same ground? In fact, the three arguments differ in the 'what' not in the 'how', that is to say, they differ in what they deal with not how they deal with it. 2. Defeasibility: This has previously been defined as the feature whereby the conclusion of a particular argument remains tentative because it is always prone to be replaced by another if new pieces of information show to enhance better explanation to a certain case (Cf. 2.2.3) above. The following are the most defeasible types of arguments: - Argument from sign (Cf. 2.2.3). - Argument from commitment (Cf. 2.2.6). - Practical reasoning (Cf. 2.2.7); and - Correlation to cause (Cf. 2.2.11). 3. Bolstering: As with defeasibility, bolstering has been defined as the process of joining more than one type of argument with another in order to reinforce the weakest (Cf. 2.2.10). This has been clearly noticed in the following:
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- Argument from established rule is bolstered by argument from analogy (Cf. 2.2.2). - Argument from sign is bolstered by argument from expert opinion (Cf. 2.2.3). - Argument from popular opinion is bolstered by position to know argument (Cf. 2.2.10). In line with these binding features, Walton's (2002 and 2006) legal ASs can be re-classified into three main groups, each embraces the types that instantiate it: 1. Arguments of interrelatedness: - Position to know, - Commitment, - Ad hominem, - Slippery slope; and - Verbal classification. 2. Arguments of defeasibility: - Sign, - Practical reasoning; and - Correlation to cause. 3. Arguments of bolstering: - Established rule+ analogy. - Sign+ expert; and - Popular+ position to know. Before moving forward any further, it is very necessary and significant to spot the importance of dealing with ASs from a general
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perspective. Walton (1996:9, 14), Reed and Walton (2001: 1), and Doury et al. (2011: 35) are helpful to deal with this task: 1. ASs have a rhetorical and persuasive function. They are as such because they represent ways of communicating an argument in a dialogue in relation to the conventions of what kinds of moves or speech acts are conventionally accepted in a specific dialogue. 2. ASs offers a means of identifying and characterizing stereotypical patterns of reasoning (see 2.3 below for more details). 3. ASs contribute to the study of fallacies in that they identify the categories into which several fallacies fit. Simply worded, there is a very fine line between ASs and fallacies which cannot be noticed unless uncovering the scheme lying behind each argument. 4. ASs have pedagogical application. They can be used as analytical tools for the critical analysis and evaluation of natural arguments; and 5. ASs are of great use in artificial intelligence, where they represent a potential for tackling and solving various problems. 6. ASs give rise to reactions follow from the use of specific types of them. This gives access to the norms on arguers rely when assigning and contesting their opponent's arguments.
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To summarize this discussion, below is a breakdown diagram representing all the schemes tackled and re-classified in accordance with the features discussed above. Each is described by a couple of words for illustration. There remains one necessary thing whose existence helps us cross over to the next stage. The ASs surveyed above are thought, by Walton (2002), to be the result of a certain type of reasoning – presumptive – and thus they fit into the same frame. However, one of the aims (viz. the third) of this study is to show the type of reasoning most frequently relied on in the data under investigation, thus reviewing the various types of reasoning is needed. Moreover, ASs are important for approaching fallacies (which will be tackled later on), and fallacies, in turn, are the result of irrelevance of one kind or another, so the different kinds of relevance are also necessary to navigate through. In other words, both reasoning and relevance are part and parcel of this work, and, consequently, the following section is dedicated to tackling them in some detail.
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Defeasibility
Bolstering
(Source credibility-based) (property-based)
(sign-based)
(goal-based)
(event-based)
Figure (1) Walton's (2002) Legal Argumentation Schemes Re-classified
Popular opinion (majority opinion-based) + position to know
Sign + position to know
Established rule (rule-based) + analogy (case-based)
(consequence-based)
Position to know Commitment Ad hominem Slippery slope Verbal classification Sign Practical reasoning Correlation to cause
Interrelatedness
Ass
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2.3
Reasoning and Relevance 2.3.1 Reasoning: Definition
Toulmin et al. (1984: 4) attach a pervasive effect to reasoning considering it an all-important factor in our daily life as a whole, and in the legal field especially. Generally speaking, by reasoning, as Walton (1992a: 200) puts it, is meant "the process of inferring conclusions from premises". As for legal reasoning, it "typically takes the form of an inference in which the major premise states a generalization (rule) and the minor premise is a specific statement [token] that fits the circumstances (facts) of the particular case into the scope of the general premise" (Walton, 2002: 4). Starting right away from here, Luque (2011: 79) blatantly claims that reasoning in (legal) argumentation is a non-explicit process which "consists of judgements and is related to the power of communication to generate mental states and, in particular, to persuade us of what is said". He confidently states this because according to him argumentation is "an invitation to inference" (ibid.: 73). This little introduction sets the following question free: Are reasoning and inference, on the one hand, and reasoning and arguing, on the other, facets of the same coin? Actually, they are not. As for the first part of this compound question, Walton (1992a: 171) is really helpful in providing the answer. He believes that "inference is a single step of reasoning". Simply put, every process passes through several phases which constitute it and give the whole process a distinguishing identity; in reasoning the first distinguishing phase is the inference. To complete this picture, Walton (1996b: 10) addresses the second part of our question above by quoting Govier 1986b: 117:
Reasoning is what you may do before you argue, and your argument expresses some of your (best) reasoning. But much reasoning is done before and outside the context of argument. (Underlining mine) The underlined phrase facilitates our way of logic-free approaching reasoning, as far as possible. Actually, Toulmin et al. (1984:10), and Walton (1992a: 200-5; 2008: 2) take any abstract or purely logical dress of reasoning off and, instead, put on it a pragmatic one by including context as a pivotal stand when dealing with reasoning regardless of which type (of reasoning) is designated (see below for the types). For instance, Toulmin et al. (ibid.) insist on making reasoning involve "dealing with claims with an eye to their contexts, to competing claims, and to the people who hold them". This means that these authors have taken into consideration a macrocontext of reasoning (unlike Govier just cited) swinging between the various claims and their holders. And their opinion does breathe relevance to the ASs discussed above particularly those concerned with the credibility of the source (Cf. 2.2.4, 2.2.5, and 2.2.6). It follows that this definition is the one to be adopted by this study. Moreover, on the basis of the features of context taken into account, several typologies of reasoning have emerged. Below are the most relevant ones to this study. [For the dialectical analysis of reasoning, see Bex and Verheij (2012)]
2.3.1.1
Types
Interestingly, when starting to read on types of reasoning, it has been remarked that a great batch of books offer a binary division of it: deductive and inductive. Nevertheless, such a classification could not satisfy many scholars (most notably Pierce as mentioned by Walton (1996b: 257)), who have felt a necessity for looking among the myriad of ideas for other types because there have appeared several cases where 70
neither deduction nor induction could put the fire of debate down. Accordingly, what is going to be done below is review the two most common types just mentioned, and then survey other proposed types (For other classifications, see Walton (1992a: 208-12), Walton (1992b: 11-16), and Freely and Steinberg (2009: 169-89).
2.3.1.1.1 Deductive Reasoning Defining this type is not that difficult task to deal with as no book on argumentation does not refer to it (and the inductive counterpart as well) in one way or another. Ironically, this familiarity has made selecting a comprehensive definition formidable. However, out of the eminent authors who have dealt with the topic, Walton (2008: 138, 159) is consulted. He clearly expresses deductive reasoning as the process whereby a conclusion follows logically from its supporting premises in that it is impossible for all the premises to be true and the conclusion false. In other words, this type of reasoning has a strict mathematical relationship where 1+1=2 and nothing else. He (ibid.) exemplifies it as follows: (2.19) All birds (strictly speaking) fly. Tweety is a bird. Therefore, Tweety flies. According to Walton (ibid.), what characterizes this type is its being monotonic, meaning that the emergence of new pieces of information (or evidence, legally speaking) has nothing additional to offer because the conclusion is, and will always be, the same. It seems interesting to throw light on an opinion strictly held by Walton (2002) about the ASs he lists. He insists on building his ASs on a specific type of reasoning (Cf. 2.2 above) preventing any other type from playing even a very tiny role in their configuration (In the majority of his works, Walton averts the deductive-inductive taxonomy and sides himself
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with the presumptive, see 1992a, 1992b, 1996, 1998b, 2008, to name just few). As having no other choices, Walton (2002: 51) concedes that the argument from verbal classification definitely dwells on deductive reasoning. Interestingly, this retraction reassures what has been foretold by Rieke (1986: 365) who confirms that "Judicial reasoning is never complete on any category of cases: as soon as one decision is written, a new and slightly different problem within the same category will come along".
2.3.1.1.2 Inductive Reasoning This type is explained by Walton (2008: 246) as the process in which probable or likely conclusions are derived. This means that if the premises (out of which a conclusion is reached) are true, it is quite likely that the conclusion could be false rather than true. As such, Walton (ibid.) states that inductive reasoning, unlike the deductive peer, is a probabilitybased process. Walton (ibid.: 141) cites the following example on this type: (2.20) If I graduate, I have paid my tuition. I've paid my tuition. Therefore, I will graduate. Here, the first two premises are true, yet, they do not yield a true conclusion. This can be accounted for by the fact that there might be other requirements than just paying tuition in order for anyone to graduate. Thus, in this case, the truth of the premise does not guarantee the truth of the conclusion. In fact, Rescher (1964: 60, cited in Weddle (1986: 383)) has ponderingly worded these two types in a nutshell: An argument that attempts (or is claimed) to provide conclusive evidence for its conclusion is called a deductive
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argument. In contrast, an inductive argument attempts (or is claimed) simply to provide some grounds for the conclusion – that is, to furnish good reasons for accepting the conclusion without providing conclusive evidence for it.
2.3.1.1.3 Presumptive Reasoning This is the alternative (and more satisfactory) type proposed by many scholars(7). Presumptive reasoning is a distinctive type of reasoning that goes forward in a context of dialogue between two parties who are engaged in argumentation where a speaker put forward a particular proposition to a hearer and (i) the proposition is not known to be true or false; (ii) the hearer tentatively agrees to accept the proposition, typically on particular grounds, e.g. to advance the dialogue,… and (iii) the speaker agrees to retract (withdraw) the proposition, should new evidence come into the dialogue that would show that it is false. (Walton, 1992a: 3-4) Rheishaan (2007: 88) illustratively exemplifies this type. He proclaims that in law, a person may be considered dead for the sake of settling one's estate after a prescribed period, even though it is not known for sure that s/he is really dead. With the absence of any evidence on one's being alive, that person will legally be considered dead after the passage of some specified time. Normally, however, this conclusion will be withdrawn if the person turns up alive.
2.3.1.1.4 Disjunctive Reasoning This is a variant of the goal-based practical reasoning earlier discussed (Cf. 2.2.7 above)(8). Disjunctive reasoning, usually abbreviated as (DR), is (7)
a. It is necessary to mention that Walton is not the first scholar who has rebelled against the binary division of reasoning. Walton (1996: 256) himself asserts that it is Peirce 1883 who first declares the existence of a third type which is neither deductive nor inductive; he calls it abductive. b. Govier (1986: 57) has indicated this type but with a different terminology; he called it "case-by-case" reasoning. For more information, see ibid. c. Walton (2001) draws the attention to the point that presumptive and abductive are not always interchangeable as both cover different concepts. However, in his book (2002) he uses the two terms alternatively, and as such the two terms are taken to be the same in this study following Walton (2002).
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explained and exemplified by Walton (2006: 306-9) as that type where a set of alternatives is confronted in which one, and only one, alternative is chosen by excluding all other elements in the set. DR can be basically divided into two broad types: simple and complex. The former, as Walton (ibid.) explicates, has two alternatives only and it is traditionally referred to as disjunctive syllogism (DS): (DS): Either A or B Not – A Therefore B. For instance, (2.21) Either the fox went over the hill (A) or in the hole (B). The fox did not go over the hill (Not A). Therefore the fox went in the hole (Therefore B). The eliminated alternative here (that is A) is the disjunct (where the order of disjunction does not matter), whereas the remainder is the inferred conclusion. However, it is very necessary to be cautious when dealing with DS that the first disjunctive premise be representative to all the possible alternatives one can have in a certain issue. If not, that premise can easily be attacked and refuted and, thus, weakening the syllogism as a whole. Let's consider this example cited by Walton (ibid.: 308): (2.22) We have a choice between giving in to student demand and teaching what students want, or standing firm and teaching what needs to be taught. Giving in to students demand and teaching what students want is not an acceptable course of action. Therefore, we should stand firm and teach what needs to be taught.
(8)
This is the second place where Walton shows that presumptive reasoning is not the primary type into which his ASs fall (Cf. 2.3.1.1.1 above for the first)
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In this example, what is criticized is the sharp dichotomy made between the two choices. Instead of viewing them in black-or-white mode (thus giving unrepresentative alternatives), a compromise can be made between the interests of the two to yield better results than adopting each in isolation (and thus giving more plausible alternatives). As a matter of fact, it is the latter (complex) type which represents the gist of DR due to its non-restrictedness to two alternatives only; there can be any number: (DR) Either A0 or A1 or A2 or… An-1 or An. Not (either A0 or A1 or A2 or… An-1) Therefore An. Walton (ibid.) gives this example to illustrate: (2.23) Suppose that an important goal for me is to be healthy, and my doctor tells me that in order to be healthy, I must lose ten pounds. Also, I know that to lose ten pounds, I must eat meals that have fewer calories and, in particular, less fat. On Friday, I find myself at the deli counter, where there is a range of different sandwiches available: tuna with mayo, chicken with mayo, beef with mustard, Reuben, and corned beef with mayo. Suppose I know that the Reuben is high in fat content, and that all the sandwiches with mayo are high in fat content. By disjunctive reasoning, I can eliminate all except the beef with mustard sandwich as prudent choices. A prudent conclusion, by practical reasoning, would be to select the beef with mustard sandwich. This example helps us fix the two important requirements that should be borne in mind in order to make an inference in the DR strong:
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1. The set of alternatives must be representative and exhaustive; and 2. All the alternatives except the designated as the conclusion must show the ability of elimination. Differently put, the alternatives in a set must not be elusive via being used more than once at the same time; they must be disposable except the designated element.
2.3.1.1.5 E-Contrario Reasoning This is a context-sensitive type of reasoning. E contrario reasoning, as Jansen (2005: 485-96) uncovers it, interprets a legal rule on the basis of the context of the law system. It occurs "whenever a rule is not applied to facts that have not been explicitly stated in that rule". This means that this type of reasoning represents a legal gap which can be filled in accordance with what the speaker per se wants within a certain context. Jansen (ibid.) quotes the comic Calvin and Hobbes to exemplify Econtrario reasoning: (2.24) A sign on a restaurant door announces that visitors not wearing a shirt or shoes will not be served: 'No shirt, no shoes, no service'. From this Calvin deduces that if a visitor does not wear pants, she will be served indeed. So, in Calvin's interpretation, not wearing a garment other than the one cited in the rule, is supposedly outside the scope of that rule. Thus, what makes this type different from all the others discussed before are two main points: 1. E-contrario
is
context-sensitive
from
two
contradictory
perspectives: physical and linguistic. As for the physical context, it comes to the scene when a rule becomes applicable to a particular case at a certain time. The co-text, on the other hand, is adhered to
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when applying that very rule where the physical context is now eschewed and only the conceptual meaning, semantically speaking, is depended on so as to attain one's aim. 2. E-contrario starts to work as soon as a premise is put forward; it does not need further premises to complete it as is the case with the other types (see the types above).
2.3.2 Relevance This is a clear enough pragmatic concept which has been imbued with research since the work of Grice (1975) with his reputable Cooperative Principle and its supporting maxims, and Sperber and Wilson (1986) up to recent dates. Briefly explained, relevance is an allimportant factor in communication. It is so because it helps to move conversation proper forward constructively and openly, meaning that one can enhance a certain topic with any relevant information (For the relationship between relevance and tenability, see Krabbe (1986: 307-17). However, this is not what relevance is only taken to mean in the legal field. Relevance viewed as such attracts many points of criticism, the task which Walton (2004: 114-6) has successfully performed. He posits a tripartite lament of Grice's notion of relevance (terminology of the three points is mine.): 1. Non-specificity: Grice does not provide a clear-cut definition of relevance. He finds it enough to coin the principle of relevance as "Be relevant", adding nothing more. He justifies this by considering the 'defining' task "exceedingly difficult". 2. Overlapping: This problem is first foreshadowed by Dascal 1977: 113, as Walton (ibid.) indicates. Dascal has discovered the fact that relevance as viewed by Grice is a catch-all factor which embraces all other maxims in that anything which does
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not bear relevance on a certain issue will be excluded even if it provides sufficient, truthful and mannered information. Yet, Grice gives a separate maxim, that is, the relation maxim in tandem with the three other ones. This, actually, causes an overlap between relevance as a maxim and relevance as a separate entity. However, it is till 1984 that this idea has seen light when Sperber and Wilson have blatantly delivered their monumental work simply entitled "Relevance Theory". In that work, they have verified what Dascal has previously hinted at. This overlap, as Walton (ibid.: 115) thinks, cannot "help students
evaluate
fallacies
or
faults
of
relevance
in
argumentation". 3. Overgeneralization: Walton (ibid.: 116) asserts that Grice has never paid heed to the point that each type of conversation (or more accurately dialogue) has its own goals and objectives (9). Instead, Grice puts 'his' relevance in a one-size-fits-all position the matter which can be neither reasonable nor acceptable. Relevance, Walton (ibid.) emphasizes, "needs to be judged differently from a dialectical point of view in different cases, depending on the type of conversational context appropriate for the given case". In line with these points, the aims of this sub-section are to legally define relevance, to differentiate it from the common-sense relevance known to all linguists, and ultimately to present the way by which relevance is to be objectively analyzed.
(9)
Walton (2006: 183) lists six types of dialogue: persuasion, inquiry, negotiation, deliberation, and eristic. Each of these has its own goals which differ from the other.
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2.3.2.1 Relevance Legally Defined: Dialectical Relevance Though important and central to law, relevance has never been given a watertight definition that can be taken as a point of departure to deal with in the legal field. This remark is certified by Walton (1995: 162) who considers this gap a serious problem. He makes it clear that all the 'logics' which have tackled relevance fall "decisively short of capturing the concept of relevance appropriate for the study of fallacies". To solve this problem, he suggests, pragmatics can be taken advantage of. This is chiefly done by means of bringing the context of dialogue into play. To put it conspicuously, as Walton (ibid.: 163) does, "relevance of the argument or any of its parts, is to be sought in understanding just how it or they contribute to the structure of the dialogue as a whole". By 'structure' is meant that each dialogue, as mentioned above, has its own goals which are to be attained through the development of the dialogue itself, so relevance, being part and parcel of any dialogue, must also partake in the achievement of a particular goal of any of the various types of dialogue mentioned in advance. Viewing relevance as such, i.e. as a factor contributing to the fulfillment of goals, makes it be described, by Walton (ibid.), as dialectical. Accordingly, from now on, whenever the term relevance is dealt with, it means dialectical, i.e. purposeful. And it is this aspect which mainly differentiates Grice's relevance (usually referred to as logical relevance) from the legal peer. [As a matter of fact, the distinction between logical and legal relevance is not so easy; it is controversial and has been extensively commented on. The most plausible idea is that there is a possibility that legal relevance could partly stand on the ground of logical relevance. For more details, see Walton (2002: 183ff, and 2004: 274ff)]
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As defined by Walton (1995, 2004, and 2006), relevance in the legal field is a goal-directed normative concept that meets two standards: a. Context-sensitivity; and b. Stage-dependence. Three terms need to be clarified in this definition: normative, and the two standards. By the first is meant, as Walton (2006: 272) argues, that relevance should be "defined by what is appropriate in a framework of dialogue". So, what is required in an information-seeking dialogue differs a lot from what is required in an eristic counterpart, for instance. Obviously, by context-sensitivity is meant the context of the dialogue in which people are engaged. A trial, for example, has a context which is drastically different from the context of a meeting at a university, despite the fact that both contexts are conventionalized or, more adequately, institutionalized. By the last is meant something is relevant if it is "functional in view of the stage of the speech event in which they [participants] are engaged" (Eemeren and Grootendorst, 2004: 81). This leads us to definitely conclude that relevance has a double function to do in the legal field: partly in a specific stage, and partly in achieving the goal of the dialogue as a whole. [For stages of a trial, cf. 4.4 below] This definition raises an important question: What is that function which is dually performed by relevance in law? Walton (2004: 2, 2006: 272) readily provides the answer: relevance performs a gatekeeping or exclusionary function. Relevance keeps the interaction within the productive boundaries via excluding any argument that is of no use for resolving the issue aimed to be settled by the dialogue. Interestingly, how Walton (ibid.) presents relevance to be has already been alluded to by McEvoy (1999: 43). He (i.e. McEvoy) insists on the idea that relevance is a norm and not a "built-in conversational
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constraint or principle". It is viewed as such, he (ibid.) goes on, because departure from this norm will have participants be ill-treated in some way or another. To make it clearer, McEvoy (ibid.) gives the following example: (2.25) If I walk into a shop and ask for some change for the parkingmeter, I may feel myself obliged to justify or excuse this in some way, not if I want to buy an article which the shop caries. If I am not careful about bow I do it, the shop-keeper may be rather hostile at my asking him for change. But what kind of norm relevance represents? McEvoy (ibid.: 44) crudely puts it:"it is a norm of conduct, from which parties can deviate, intentionally or unawares [sic], but which they must be made to observe, if their conflict is to be brought to a close fairly and economically". Now, what does 'economically' mean? Answering this question sends us back to Walton (2004: 2) who illicitly elucidates this word. He pointedly raises the problem of time and money, embraced in almost all kinds of debates, and its relationship with relevance: The problem in many such cases is that time for the meeting may be limited, and yet the problem to be solved may be urgent. In other cases, having a lengthy debate may be very costly. Hence, in order to solve the problem within the given constraints of time and money, it may be useful, or even necessary, to draw boundaries of relevance. To elaborate, Walton (2006: 274-5) sheds light on such constraints. He discusses relevance in particular institutional setting of the dialogue, or what is referred to 'speech event'. He invokes trials in the AngloAmerican law (from which the data of this work are taken). He points out that "there are procedural rules that govern argumentation, and there are even special legal rules of relevance that apply in a given jurisdiction"(ibid.). [Those rules are listed in the Federal Rules of Evidence (FRE), as Walton (2004) mentions. For a cursory glance at
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these rules, see Walton (2004)]. It is these rules, which are based on the notion of relevance, that specify what kinds are (not) admissible as evidence in trials. There remains one last important thing to be highlighted so that the concept of relevance, as adopted by this study, becomes crystal clear. If we evoke the definition of dialectical relevance (Cf. 2.3.2.1 above), we will notice that dialogue is the ground on which relevance rests. But it has been pinpointed more than once that there are six types of dialogues each with a specific context and goals, then how can we deal with trials (the data of this work as aforementioned) as dialogues? In other words, under which type of dialogues is a trial subsumed? In fact, Walton (2002: 335ff) reconstructs trial within the framework of a persuasion dialogue. In all the consulted references (i.e. Walton (1992a, 1992b, 1996, 2002, 2004, and 2006), Walton defines persuasion dialogue as one whose initial situation is a conflict of opinions extended over two types of goals. The first is a participant's goal of persuading the other party. The second, in turn, is the goal of dialogue (as a whole) of resolving or clarifying issue. Thus defined, the point of contact between persuasion dialogue and trial can be uncovered in a foolproof way, the thing which Walton (ibid.) bears on doing. He states that just as a persuasion dialogue, by definition, has two conflicting parties each with the aim of resolving the conflict (via persuasion) to a party's own favour, the trial as well follows the same path. The only difference between the two is that in the trial the parties do not try to persuade each other; they try to persuade a third party – a trier (be they judge or jury). Nevertheless, Walton (ibid.) asserts, there remains a pivotal core in a trial which "is meant to be a persuasion dialogue". More precisely, Walton supports Feteris (1999:74) in modeling a fair trial on a sub-type of persuasion dialogue called 'critical discussion'.
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[It is attributed as fair so that it can be distinguished from witch-hunt. For more information on the latter, see Walton (2002: 184ff)] A critical discussion, has been defined by Eemeren et al. (1996: 280; 2002: 23), as "an ideal of an argumentative discourse aimed at resolving a difference of opinion by determining whether the standpoints at issue ought to be accepted or not”. In other words, it is a rule-governed discussion in which the unsettled issue is a conflict of opinions over some particular proposition. One side is convinced by the truthfulness of that proposition, whereas the other is not (Walton, 1996b: 23, 28). A critical discussion, in the pragma-dialectical model, proceeds through four stages: 1- The confrontation stage: At which a participant in the discussion puts forward a standpoint while a second participant either doubts or contradicts it ( i.e. a difference of opinion appears in this stage). 2- The opening stage: Where participants decide to resolve the difference of opinion, so the roles of protagonist (that is, the one who supports the standpoint) and antagonist (that is, the one who opposes it) are assigned. In practice, this stage often remains implicit. 3- The argumentation stage: The protagonist defends her/his standpoint by putting forward arguments to counter the antagonist’s objections or doubts. 4- The concluding stage: Which shows the extent to which the difference of opinion has been resolved. It will be resolved in favour of the antagonist if the protagonist withdraws; if the antagonist abandons her/his beliefs or doubts, then it is resolved in favour of the protagonist (Eemeren et al., 1996: 281-2; Eemeren,
83
2001: 15; Eemeren et al., 2002: 25). [ For more details on each stage, see Eemeren and Grootendorst, 1984: 85-7] In an earlier attempt, Eemeren and Grootendorst (1992: 37) point out that, the ideal model of a critical discussion only becomes practically meaningful if it is clear what speech acts, at the various stages, can contribute to the resolution of the difference of opinion. This can be more clarified with the help of Searle’s classification of speech acts. It is well- known that Searle’s (1969) classification involves five classes: assertives, directives, commissives, expressives, and declaratives. These macro-speech acts are distributed, as Eemeren and Grootendorst (2006: 94-6) illustrate, over the four stages of a critical discussion as follows: 1- Assertives: In principle, all assertives can occur in a critical discussion because they can express the standpoint at issue, be part of the argumentation in defense of that standpoint, and be used to establish the conclusion. By so stating, Eemeren and Grootendorst agree with Downes (1998: 378) who points out that assertives are the means by which the speaker can say how things are and s/he can present the beliefs by this type of speech acts. 2- Directives: Not all directives can occur in a critical discussion; their role must consist of either challenging the party that has advanced a standpoint to defend it; or requesting argumentation to support it. A critical discussion does not contain directives such as orders and prohibitions. The party who has advanced the standpoint cannot be challenged to do anything other than providing argumentation for the standpoint – a challenge to fight, for instance, is out.
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3- Commissives: These fulfill the following roles in a critical discussion: a. Accepting or not accepting a standpoint. b. Accepting or not accepting argumentation. c. Accepting the challenge to defend a standpoint. d. Deciding to start a discussion. e. Agreeing to take on the role of protagonist or antagonist. f. Agreeing on the rules of discussion; and if relevant g. Deciding to begin a new discussion. 4- Expressives: They play no part in a critical discussion. This is because of the fact that the purpose of an expressive is to express a feeling and by using this speech act the speaker creates no commitments which are directly relevant to the resolution of a dispute. In other words, speech acts that do not directly contribute to resolving a dispute – such as jokes and anecdotes – are not included in this model, although they may be among the psychological prerequisites for resolving the dispute because they help create the right atmosphere. 5- Declaratives: Declaratives, like expressives, make no real contribution to the resolution of a dispute. They depend on the authority of the speaker or writer in a certain institutional context. At best, they lead to a settlement and not to a resolution. This is why, ideally, there are no declaratives in a critical discussion.
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However, there is one specific type of declaratives called ‘usage declaratives’ that can occur in a critical discussion. Usage declaratives – such as definitions and clarifications, which require no special institutional relationship – enhance the understanding of speech acts and thus can fulfill a useful role in a critical discussion. They can prevent unnecessary verbal disputes from arising or can prevent real disputes from terminating in spurious resolutions. [For more details on the distribution of speech acts in a critical discussion, see Eemeren and Grootendorst (1984), Ch.5, where they have first distributed the speech acts but in a lengthy way] In addition to the ideal model of a critical discussion, Eemeren (2001: 16) adds, the pragma-dialectical discussion procedures include also a number of rules (viz. ten rules) which together constitute a code of conduct for reasonable discussants. [See 3.2.1 below for these rules] Walton (2002: 336) builds the relationship between the critical discussion and trial as follows: The purpose of the trial is to resolve the conflict of opinions by putting the strongest arguments on both sides to the test… The rules of the critical discussion make clear that the goal of resolving the conflict of opinions by rational argumentation can only be carried out in an efficient manner when the strongest arguments for both sides are presented, and where neither side prevents the other side from bringing forward relevant arguments that are evidence to support its claims. This aspect is the very factor that is crucial to the notion of the fair trial. Now, after reconfiguring relevance legally, the floor is handed over to tackle (dialectical) relevance with reference to the various types and approaches employed to analyze this sweeping and significant concept.
2.3.2.2 Relevance: Types and Approaches It has been made clear that relevance, legally tackled, has a salient feature of its own: it has to be included within a particular type of
86
dialogue in order to take part in the achievement of the goals of dialogue. As regards a trial, it is a token of persuasion dialogue. It goes without saying that any dialogue (of whatever type) consists of a sequence of pairs of moves (i.e. speech acts) starting at a first move and directed toward a goal, as claimed by Walton (1995: 172). This leads us to logically inquire: How can relevance be approached then, do we have to analyze each pair of moves (regardless of the dialogue as a whole)? If so, which it is not, then how will relevance be dialectical, that is, contribute to the main goal of the dialogue? By the same token, if we want to check the relevance of all the moves altogether within a dialogue as a whole (regardless of individual pairs), we will not be able to detect fallacies, which are 'masked' irrelevant moves aimed to pass unnoticed and born in individual pairs of moves; what to do then? This problem has been overcome by Walton (1995: 172-3). He interestingly wraps up the answer by classifying relevance into two main types: local and global. The former, as he views it, pertains to two speech acts occurring in the same particular move (hence the title local). He clarifies his idea by illustrating that A reply may be locally relevant to a question if the reply is related in some appropriate way to the question where the question and reply occurred at the same move. The latter, by contrast, "refers to the relationship between a speech act at some particular move and the goal of the dialogue". In a persuasion dialogue, Walton (ibid.) continues, "global relevance pertains to the relationship between the proposition or speech act of a particular move and the proposition that is the agenda of the dialogue as a whole" (Agenda is defined by Walton (1995: 171) as a set of propositions put beforehand in a certain order, which may (not) be important relative to the case at work, and it is the agenda which needs to be proved in a dialogue. As such, it is the agenda of dialogue that defines relevance
87
internally). Furthermore, the relationship between the various moves in a dialogue is not only local or global; there are two other sub-types encompassed with the two main types: topical and probative. Topical relevance, as Walton (ibid.) puts it, is a "subject-matter overlap". He gives the following example: (2.26)
Socrates is Greek. Plato is Greek.
These two propositions are topically relevant, at the local level, in that they deal with the same subject-matter – origin of people. At the global level, on the other hand, topically relevant speech acts are defined by a set of topics that define what the argument is about, as Walton comments. Probative relevance(10), in turn, is more important in cases where irrelevance is a problem in argumentation, as Walton (2006: 271) confirms. He (ibid.) indicates that this type of relevance is proposition or speech act-based. This means that probative relevance holds when one proposition is used to (dis)prove another. The following are two probatively related propositions: (2.27)
All Athenians are Greek and Socrates is Athenian. Socrates is Greek.
In this example, the first proposition is used to prove the second, and this is what makes them fall in a probative relationship. Figure (2) below shows the different types of relevance as proposed by Walton (1995):
(10)
For more details on probative logic, see Scriven (1986: 7-33).
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Relevance
Local
Global
Topical
Probative
Figure (2) Walton's (1995) Types of Relevance Whatever the type might be, it is very necessary to recall at this place that relevance is stage-bound, as mentioned before (Cf. 2.3.2.1 above). As expected, Walton (ibid.) has not kept silent on this point. He asserts that in the beginning or middle of argumentation, the relevance of certain claim cannot be easily judged. He cites this example: (2.28) In court, if a judge objects that she does not see the relevance of a lawyer's argument, he may reply, "If Your Honor will give me a little latitude, I can show why it is relevant". Thus, Walton stresses the idea that "relevance needs to be judged in light of the stage of dialogue an argument is used in and how far along the sequence of reasoning has progressed at that stage". We are now next to complete drawing the picture of legal relevance, so to speak. There just remains one important thing to be mentioned in order to colour the whole picture vividly: approaches of analyzing relevance. Eemeren and Grootendorst (2004: 71) dually branch the approaches of analyzing relevance into descriptive and normative. The first, as they (ibid.) explain, is opted for by linguists (and social scientists), who are concerned with interpretively answering such questions as:
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- When is speech act A seen as a relevant reaction or sequel to speech act B?; and - How do the participants in a conversation determine what is a relevant sequel to what was said earlier – and what are the relevance criteria? It follows that it is this approach which is of great use in the present work, and thus it is the one to be adopted. The second approach, on the other hand, they (ibid.) continue, is of basic interest to formal and informal logicians. These are concerned with evaluatively answering such questions as: - When should a person attack, an appeal to authority, an appeal to sympathy, threatening with sanctions, or pointing at the undesirable consequences of accepting a standpoint be rejected as irrelevant? - What are the criteria for determining whether or not certain (complexes of) speech acts are to be judged as relevant? In accordance with this typology, and with the model of the critical discussion previously reviewed (Cf. 2.3.2.1 above), Eemeren and Grootendorst (ibid.: 81-3) devise what they refer to as "relevance cube". They dwell this 'cube' on the idea that the critical discussion with its four stages employ various speech acts which are unequally functional at every stage of the resolution process. Hence, their suggestion is that relevance cannot be analyzed as one complete whole in the monolith of argumentation; it has to be analyzed in relation to a particular stage (confrontation, opening, argumentation, and concluding). Simply put, relevance, according to this cube, is threefold: domain relevance, component relevance, and relational relevance. Domain or contextual relevance is mainly concerned with:
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which stage of the resolution process the question of relevance is raised. There may in a certain case, for example, be a question of relevance for the concluding stage (Of course what you say now does not matter, because we have just concluded the discussion). (ibid.: 82) In component relevance, the main concern is "precisely to which component of a speech act or constellation of speech acts the question of relevance applies". That component, they (ibid.) clarify, can be: constituent communicative act, communicative force, propositional content, or linguistic phrasing. For instance, there may be a bearing on a proposition expressed in a certain speech act, or the performance of a speech act with a certain communicative (i.e. illocutionary) force. These two cases are respectively exemplified as: (2.29) That is really pertinent to what we are discussing at the moment. (2.30) If this is only a question, it is out of order now, but if you are claiming that I am wrong, then of course it is not. Relational relevance, in turn, has to do with "which function of relevance is at issue". Here we have three possibilities: 1. Reacting to a standpoint, as in: (2.31) Do you want me to clarify my standpoint or do you just not accept it? 2. Supporting sequel to an argument, as in: (2.32)
There is no need for further justification; I accept your
argument. 3. Anticipating doubt with regard to the acceptability of a standpoint, as in: (2.33) You are not convinced that this is really so? It is crucial to mention that it is this model of relevance that will be adopted for analyzing the data of the present study. To justify this 91
selection, Eemeren and Grootendorst's (ibid.: 83) comment on their work is quoted, to make a long story short:"By means of the differentiation of the general concept of relevance represented in the relevance cube, the problem of relevance occurring in argumentative discourse or texts can be analyzed and characterized in a clear, systematic and consistent manner". And these three last features represent the bread and butter of scientificness, as Crystal (1980: 75-92) argues. It seems necessary to say a word on relevance after being thus reviewed. It has been remarked that there is a very important difference between relevance in everyday communication and its counterpart in the legal field, despite the main point of similarity between the two: contextdependence. To clearly illustrate, the following well-known example is invoked from Yule (1996a: 145-6): (2.34) Carol: Are you going to the party tonight? Lara: I've got an exam tomorrow. Despite superficially irrelevant answer, Carol interprets Lara's reply as 'No' or 'Probably not', as Yule himself comments, by means of making recourse to background knowledge. What inspires our interest in Yule's explanation is the 'Probably not' possibility. This means that in this case Lara does not (intend to) communicate a decisive refusal (for one reason or another); the onus of interpretation is, then, all at the expense of the addressee by relying on the context. More clearly, in such a case the speaker paves a way back for her/himself via being indirect. [Let's suppose that Lara has been blamed, afterwards, for refusing to go to the party, she can very easily defend herself by claiming that she has never refused the invitation, she just could not manage to control having an exam and going to the party at the same time.] When compared with the legal field, the case turns out to be totally different. It is indisputable that in law every single word counts, that is, it
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has a very important role to play, the misunderstanding of which creates a gap to be filled by the opponent (whether plaintiff or defendant, legally speaking) to resolve the case to one's own favour. As a result, unstated addressee-based interpretation of relevance is not the lion's share of the addressee per se; the addressee (who is the trier, whether jury or judge) frequently asks "What do you mean?", or "Can you clarify more", or "By so saying, do you mean so and so?", so that there is very little, if any, latitude of keeping some premises unstated. It is seriously important in the legal field that interpretation of relevance matches the intention of the speaker, the thing which can only be verified by stating all premises and no chance, whatsoever, is left to indirectness (which is just the opposite to what is usually known in everyday communication). This can be vigorously reinforced by having a look at what Eemeren and Grootendorst (ibid.:72) contend: "In verbal communication and interaction, the use of language is aimed not only at bringing understanding, but also obtaining acceptance". It is this very acceptance which fuels the engine of argumentation to make it go ahead; and this acceptance cannot be admitted unless every premise is clearly set in place so that the resolution process proceeds smoothly. After reviewing all the important concepts that can be utilized in LA (i.e. the means as mentioned before in 2.1 above), the floor, now, should be handed over to the further end which is to be achieved by means of LA. The quiddity of SM (that is, the further end), its basic components and modes as well as many other aspects are the main concern of the following chapter.
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CHAPTER THREE STRATEGIC MANEUVERING 3.1 State-of-the-Art In spite of the fact that it is somehow a recent topic, SM has attracted the attention of several works whether articles or theses, each focusing on a specific aspect of it (Cf. 1.1 above; see Eemeren (ed.), 2009, to name just a few). Such works help us avert covering all the details of this topic; only those which are probatively relevant to this work are mentioned. To start with, tracing the way by which the concept of SM has come to the fore requires rapidly paging through the different works which have established and developed the pragma-dialectical theory (viz. Eemeren and Grootendorst (1984), Eemeren and Grootendorst (1992a), Eemeren et al. (2002) and Eemeren and Grootendorst (2004)), provided that SM is the extended version of the standard pragma-dialectical theory. The (standard) pragma-dialectical theory, launched in (1984) by Eemeren and Grootendorst, embodies argumentation as a verbal human activity whereby arguments are exchanged to resolve a difference of opinion. In order to systematically resolve that difference, an ideal model (of what Eemeren and Grootendorst call "critical discussion") has been developed to show whether the standpoint (on which the difference of opinion rests) has to be accepted or not. That four-stage ideal model of a critical discussion specifies meticulously the admissible speech acts in the stages, in addition to exhibiting the rules concerned with reasonably guiding the critical discussion (Cf. 2.3.2.1 above). The roles of the two divides of "pragma-dialectics" have been contemplatively traced by Goodnight (2009: 77): The dialectical pull of the model recognizes that in each moment of engagement, arguers invoke norms of reasonableness in
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offering valid or good reasons for coming to agreement; the pragmatic pull recognizes that arguers engage in speech acts that aim at a variety of ends, from simple explication to influence, in the interest of winning assent. With the passage of time, it has been observed that it is not only reasonableness that is at stake in a critical discussion; arguers do want the outcome of the discussion to be to their own advantage. This means that, Eemeren et al. (2012: 38) conclusively comment, "the arguers' rhetorical attempts to make things go in their way are, as it were, incorporated in their dialectical efforts to resolve a difference of opinion in accordance with proper [i.e. reasonable] standards for a critical discussion". This clearly indicates that the dialectical divide has to be extended to simultaneously embrace a rhetorical aspect. Tonnard (2011: 10), in his turn, lists three benefits for the embedding of rhetoric within dialectic, in addition to steering the discussion to one's own good: 1. Uncovering the strategic design of discourse. 2. Refining the analysis and accounting for it; and 3. Determining precisely whether a particular argumentative move is fallacious or not. This is basically achieved when attempting
to
satisfy
rhetoric
at
the
expense
of
reasonableness. Since rhetoric has become part and parcel of dialectic, as just rendered, how can the relationship between the two be clearly drawn in a way that is subject to a systematic analysis? Eemeren (2010: 90) has earlier asserted that this relationship is "functional in the sense of incorporating all those and only those theoretical insights in the pragma-dialectical theorizing that can play a constructive role … both in analysis and evaluation". [For more details on
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the relationship between dialectic and rhetoric, see Hohmann (1998: 3955), Eemeren (2010: Ch.3), and Luque (2011: Chs: 5 and 6)] Ensuing from such observations, the notion of SM, Eemeren and Garssen (2009: xii) comment, is created to "bridge the gap between the dialectical and rhetorical perspective and include insights from rhetoric systematically in their dialectical approach". Moreover, encompassing a rhetorical dimension within the dialectical one, Eemeren (2010: 40) confirms, makes it a must for arguers to show balance between the simultaneous pursuit of maintaining reasonableness and achieving effectiveness in every argumentative move that is made. This balance, Eemeren (ibid.) proceeds, represents an "argumentative predicament" for whose resolution SM has been developed. To trace back the emergence of SM historically, we can say that it has been brought to limelight in (2002) when Eemeren and Houtlosser have published an article intensively presenting and explaining it for the first time. They (ibid.: 135) pragmatically define dialectic as a "method for
dealing
systematically
with
critical
exchanges
in
verbal
communication and interaction to move from conjecture and opinion to more secure (descriptive, evaluative, or inciting) standpoints". Rhetoric, on the other hand, is defined as "the theoretical study of the various kinds of persuasion techniques that can be effective in argumentative discourse" (ibid.) [For various applications of rhetoric, see Haaften et al. (2011)]. SM, in turn, “refers to the continual efforts made by all parties in argumentative discourse to keep the balance between simultaneously pursuing the rhetorical aim of effectiveness with maintaining the dialectical standards of reasonableness”. (ibid.: 136). Later on, Eemeren (2010) has published a whole book entitled Strategic Maneuvering in Argumentative Discourse, which "constitutes a
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dense monograph providing the first comprehensive and systematic exposition of the extended pragma-dialectical theory" (Rigotti, 2011: 261). Eemeren (2010) draws the attention to the following major points concerning SM: 1. The term "maneuvering", he (ibid.: 40) insists, is not to be perjoratively connoted; it pertains to "moving toward the best position in view of the argumentative circumstances". [For the distinction between SM and manipulation, see Nettel and Roque (2012: 55-69)]. By the same token, the term "strategic", Eemeren (ibid.) goes ahead, is employed because "the goal aimed for in the maneuvering taking place at the operational level has to be reached by clever and skillful
planning,
doing
optimal
justice
to
both
reasonableness and effectiveness". 2. SM occurs in all the stages of a critical discussion. That is why Eemeren (ibid.: 46) states that there is a confrontational maneuvering that is to be reconfigured as part of the confrontation stage, opening maneuvering to be reformulated as part of the opening stage, argumentational maneuvering to be re-made up as part of the argumentation stage, and concluding maneuvering to be re-contrived as part of the concluding stage. As far as the present work is concerned, SM is studied in the discussion (i.e. trial) in two stages only: the confrontation stage and the argumentation stage because these two stages constitute the "discovery process" which is the main concern of this study as stated before. 3. The systematic analysis of SM, Eemeren (ibid.: 129) is constrained by the kind of activity type whereby it takes
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place (see below for more information on this concept). As such, SM is context-specific; it differs from one activity type (say, the legal) to another (say, the political). 4. The pursuit of effectiveness in reasonableness, he (ibid.: 41) asserts, is not necessarily meant to serve the favour of the parties who perform SM per se; the target may be achieving effectiveness that is to the benefit of others whom they represent (and this is exactly the case with the data under scrutiny, trials). Below is a breakdown table provided by Eemeren (2010: 45) listing the dialectical and rhetorical aims of each of the four stages of a critical discussion:
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Table (1) The Dialectical and Rhetorical Aims of the Four Stages of a Critical Discussion (Following Eemeren, 2010:45) Confrontation Stage
Opening Stage
Argumentation Stage
Concluding Stage
Dialectical Aims To achieve clarity concerning the specific issues at stake and the positions held by the parties in the difference of opinion To achieve clarity concerning the point of departure for the discussion with regard to both the procedural and material starting points To achieve clarity concerning the protagonist’s argumentation in defense of the standpoint at issue and the antagonist’s doubts concerning these standpoints and the argumentation in their defense
To achieve clarity concerning the results of the critical procedure as to whether the protagonist may maintain his standpoints or the antagonist his doubts
Rhetorical Aims To establish the definition of the difference of opinion that is optimal for the party concerned To establish the procedural and material starting points that are optimal for the party concerned
To establish argumentation that constitutes an optimal defense of the standpoints at issue (by the protagonist) or to establish critical doubts that constitutes an optimal attack on the standpoints and the argumentation (by the antagonist) To establish the result of the critical procedure in the way that is optimal for the party concerned as to maintaining standpoints or doubts
Being an amalgam of reasonableness and effectiveness, the notion of SM yields itself to the necessity of dealing with each of these two components separately, if a systematic analysis of the concept is to be conducted. It follows that what comes next is the pragma-dialectical "translation" of each of reasonableness and effectiveness to uncover their texture which is aimed to be utilized in analyzing the corpus of this study.
3.2 Reasonableness and Effectiveness In this sub-section, reasonableness will be tackled first since it is the basic ground on which both the standard and extended versions of the pragma-dialectical theory stand.
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3.2.1 Reasonableness By reasonableness is meant, as Eemeren (2010.: 29) points out, "using reason in a way that is appropriate in view of the situation concerned". Conspicuously put, the pragma-dialectical reasonableness is a context-specific concept that is shaped by the constraints imposed by a certain activity type (See 3.3 below for more details on activity types). Earlier, Eemeren and Grootendorst (1992a: 208-9) have proposed ten rules which represent the code of conduct for reasonable discussants in a critical discussion. The list of the rules for a critical discussion as devised by Eemeren and Grootendorst (ibid.) and given the parenthesized terminology by Eemeren et al. (2002: 109-36) runs as follows: Rule 1: Parties must not prevent each other from advancing standpoints or casting doubt on standpoints (the Freedom Rule). Rule 2: A party that advances a standpoint is obliged to defend it if the other party asks him to do so (the Burden of Proof Rule). Rule 3:
A party's attack on a standpoint must relate to the standpoint
that has indeed been advanced by the other party (the Standpoint Rule). Rule 4: A party may defend his standpoint only by advancing argumentation relating to that standpoint (the Relevance Rule). Rule 5: A party may not falsely present something as a premise that has been left unexpressed by the other party or any premise that he himself has left implicit (the Unexpressed Premise Rule). Rule 6: A party may not falsely present a premise as an accepted starting point nor deny a premise representing an accepted starting point (the Starting Point Rule). Rule 7: A party may not regard a standpoint as conclusively defended if the defense does not take place by means of an appropriate argumentation scheme that is correctly applied (the Argument Scheme Rule).
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Rule 8: In his argumentation a party may only use arguments that are logically valid or capable of being validated by making explicit one or more unexpressed premises (the Validity Rule). Rule 9: A failed defense of a standpoint must result in the party that put forward the standpoint retracting it and a conclusive defense in the other party retracting his doubt about the standpoint (the Closure Rule). Rule 10: A party must not use formulations that are insufficiently clear or confusingly ambiguous and he must interpret the other party's formulations as carefully and accurately as possible (the Usage Rule). Eemeren et al. (2002:110) assure that observing these rules does in no way ensure satisfactorily resolving a difference of opinion. However, their violation, they (ibid.) insist, surely impedes such a resolution. To conclude, the pragma-dialectical translation of reasonableness is the ten rules themselves. If arguers show their commitments to these rules, they are said to be reasonable. If not, arguers will commit a fallacy (or fallacies) depending on the number of the violated rules (Cf. 3.6 below).
3.2.2 Effectiveness It has been established before that effectiveness has to do with the rhetorical pull of SM. However, this concept gives the impression of being pre-mature, in the way it is presented by Eemeren and Houtlosser (2002, 2006 and 2009), on dealing with it systematically. They (ibid.) believe that it would be enough to endorse that rhetoric, in the extended mode, is concerned with the persuasive techniques as aforementioned, without further exposing the pragma-dialectical translation of rhetoric (or effectiveness, as the two are facets of the same coin), in the same way as they have done with reasonableness.
Actually, the identity of
effectiveness is only clearly explained by Eemeren (2010:39), who asserts that the fact that, in the pragma-dialectical mode, effectiveness is
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associated with rhetoric which, in turn, has to do with the persuasive techniques (as just defined), does not result in the expected association between effectiveness and persuasiveness. Eemeren (ibid.) emphasizes that "effectiveness is not completely synonymous with persuasiveness". He justifies this partial synonymy by bringing to notice the idea that effectiveness, unlike persuasiveness, is not restricted to the arguments exchanged in the argumentation stage of a critical discussion; it pertains to all the three other stages as well: confrontation stage, opening stage, and concluding stage. [For a similar point of view, see Blair (2012: 7181)] Eemeren and Houtlosser (2002: 135) mention "three inseparable aspects" of SM, crucial for the systematic analysis of what they call the SM triangle. This triangle is shown by Eemeren (2010: 95) as follows:
Topical Potential
Audience Demand
Presentational Devices
Figure (3) The Strategic Maneuvering Triangle (Following Eemeren, 2010: 95). From this figure, it is obvious that the three aspects are: topical potential, audience demand (sometimes called audience orientation), and presentational devices. Each of these three has its own realizations by
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various means (as will be shown below), yet the way via which they have been presented seems to make a leap over effectiveness onto a grey area! Nevertheless, Tindale (2009: 44) makes it clear that it is these three inseparable aspects that represent the rhetorical dimension of SM: they "are important in themselves for …defining how rhetoric can be brought into argumentation". It becomes evident, now, that those three aspects are the pragma-dialectical translation of rhetoric. It follows that effectiveness, by association, turns out to be a tripartite notion, in which each part should be discussed in isolation.
3.2.2.1 Topical Potential This is the first aspect which is used for analyzing the rhetorical pull of SM. It involves, as Tindale (ibid.: 43) argues, selecting materials from those available on the basis of what arguers believe the best to serve their own advantages. In other words, this aspect implies the process of tailoring the materials available at hand by choosing the allegedly most advantageous ones that accord with one's own aims. Eemeren (2010: 93-6) highlights an important feature of topical potential: its being context-specific. By this is meant that, as Eemeren (ibid.) phrases, this aspect is liable to change from case to case and from one stage of a critical discussion to another; consequently, context, here, pertains to two extremes: case and stage. As regards its being casespecific, topical potential differs from one case (e.g. civil or criminal, or even differences within the one category civil or criminal). By the same token, this aspect differs from one stage (e.g. confrontation) to another (e.g. opening). [See Table (2) below which exhibits the three aspects of SM with two dimensions in the four stages of the critical discussion]
3.2.2.2 Audience Demand This second aspect means, as Eemeren and Houtlosser (2002: 136) clarify, tuning the argumentative moves "in such a way that they are 103
expected to be optimally acceptable to the other party in view of that party's views and preferences". Three points need to be stressed about this aspect: 1. Fairclough (2009: 135) disagrees with Eemeren and Houtlosser (2002) in taking into account only the "party's views and preferences". She pointedly believes that "not just any adaptation to currently prevailing beliefs would do, but adaptation to beliefs and values that can be publicly justified as worthy of being shared". (Italics mine) 2. Tindale (2009: 43), on his part, posits a key element of audience demand: context-dependence, just as the first aspect. It is as such, he (ibid.) asserts, because "this adaptation works in specific ways at each stage, depending on the issue and the nature of the audience involved". Again, as with the first aspect, audience demand is case-specific and stage-specific. Rees and Rigotti (2011: 208) uphold Tindale's (ibid.) by talking about a highly important role played by this second aspect in SM. Investigating this role, they (ibid.) argue, "requires a closer consideration of the context, in order to identify the relevant audience to which the arguer is properly expected to orient his strategy". (Italics mine) 3. The italicized words just mentioned above pave the way for the third point. What is meant by relevant audience? Eemeren (2010: 109) has previously classified audience into two types: primary and secondary. The former, as he (ibid.) defines it, is the one that "the arguer considers the more important to reach". That is, the primary audience is one to whom all the argumentative strategies are oriented for the sake of resolving a difference of opinion to one's own favour. In the case of American court trials, the primary audience can be bipartite: the jury and/or the judge, as mentioned by Walton (2002: 11) (For an extensive treatment of jury selection, see Starr and McCormick (2013)). The
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secondary audience, by contrast, Eemeren (ibid.) continues, refers to any other persons than the ones really intended to be addressed.
3.2.2.3 Presentational Devices This is the third and last rhetorical aspect of SM. As Eemeren and Houtlosser (2002: 136) put it, presentational devices refer to "the phrasing of the moves a party makes and all other ways of styling must in all stages of the discourse be systematically attuned to achieving the effect on the other party that is aimed for making these moves". The strategic function of such devices, Rees and Rigotti (2011: 207) observe, is that "they present something in a certain light, thus defining the situation in a particular way, one that is suitable for the rhetorical aims that the speaker aims to attain. Calling protestors not demonstrators but rioters, for instance, is an attempt to bias the audience against them". Though intuitively clear and self-defining it seems, the subject of presentational devices is extremely complex and broad. Fahnestock (2009: 192) comments on the complexity aspect by contending that the attention to style, in general, and figures of speech, in particular, extends over two thousand years in the rhetorical tradition, the thing which makes them liable to various perspectives of analysis (For more details on those perspectives, see Fahnestock, 2009: 203-8). Broadness, in turn, is elaborated on by: 1. Rocci (2009: 258) who highlights the coincidence of presentational devices with the whole domain of style. Style, he (ibid.) continues, is intricately linked to the notion of choice, for which any kind of linguistic variation can become an object aiming at a deliberate communicative effect. What is more, the figures of speech, the most popular token of presentational devices, represent by themselves "a
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vast and heterogeneous landscape", as Rocci (ibid.) notices (For more details on figures of speech, see Fogelin (1986)). 2. Eemeren (2010: 121) who grades the presentational devices on three levels: - Syntactic:
e.g.
repetition,
subordination,
paratactic
and
hypotactic constructions, etc. - Semantic: e.g. metaphors, metonymy, etc. - Pragmatic: e.g. rhetorical questions, which have the form of questions but cannot be merely a question in the context concerned. 3. Rees and Rigotti (2011: 209) who perplex the issue one step further by including semiotics within the quiddity of presentational devices: "Presentational techniques are those linguistic and, more in general, semiotic tools that are available to strategic maneuvering"; and 4. Eventually, Fahnestock and Tonnard (2011: 104) who conclude the broadness of the subject by observing that "the language choices at an arguer's disposal to enhance effectiveness can include virtually any language element, from the choice of a subject-verb pair to rhythm imposed on a
sequence
of sentences"
(Italics
mine).
[For
the
presentational devices that will be selected in this work, cf. 4.2.3 below] After explaining in relevant detail the three inseparable rhetorical aspects of SM, two notes should be adduced: 1. Eemeren and Houtlosser (2009a: 6) bring to notice the point that in spite of the fact that the three aspects (topical potential, audience demand, and presentational devices) of
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SM "always go together, and are connected inextricably, in argumentative practice the one aspect is often more prominently manifested than the other". They (ibid.) exemplify
argument
from authority,
conciliatio,
and
repetitio, to refer to SM where topical potential, audience demand,
and
presentational devices
are
respectively
prominent in each of these modes. 2. Zarfesky (2009: 121-5) finds it possible to dispense with the tripartite rhetorical dimension of SM as proposed by Eemeren and Houtlosser (2002), and offers, instead, a sevenpart alternative which he applies to political argumentation. This has led him and Mohammed (2011: 97) to endorse that the three inseparable aspects of SM are by no means exhaustive. As for the present work, Eemeren and Houtlosser's (2002) original aspects are followed because they accord with the type of argumentation under investigation – legal argumentation. Table (2) below shows these three inseparable aspects of SM distributed over the four stages of a critical discussion with the two dimensions: reasonableness and effectiveness:
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Table (2) The Aspects of SM with Two Dimensions in the Four-Stage Discussion (Following Eemeren, 2010:97) Dialectical dimension
Rhetorical dimension
Reasonableness
Effectiveness
Confrontation stage
Reasonable definition of difference of opinion
Effective definition of difference of opinion
Opening stage
Reasonable establishment of point of departure
Effective establishment of point of departure
Argumentation stage
Reasonable development of lines of attack and defense
Effective development of lines of attack and defense
Concluding stage
Reasonable statement of results
Effective statement of results
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Aspect of topic choice Reasonable and effective topical selection
Aspect of audience demand Reasonable and effective handling of audience demand
Aspect of presentational choice Reasonable and effective use of presentational devices
Reasonable and effective choice of issues and critical responses Reasonable and effective choice of procedural and material starting points Reasonable and effective choice of arguments and criticisms Reasonable and effective choice of conclusion regarding the results
Reasonable and effective adjustment of issues and critical responses to audience Reasonable and effective adjustment of procedural and material starting point to audience
Reasonable and effective presentational design of issues and critical responses Reasonable and effective presentational design of procedural and material starting points
Reasonable and effective presentational design of arguments and criticisms Reasonable and effective adjustment of conclusion regarding the results to audience
Reasonable and effective design of presentation conclusion regarding the results
3.3 Determining the Strategic Function of Argumentative Maneuvers Part of their extended project of the pragma-dialectical theory, Eemeren and Houtlosser (2002) do not confine themselves to only including a rhetorical aspect within the original dialectical peer for a systematic analysis of the "new" theory. Rather, they pose parameters for systematically analyzing the strategic function of argumentative maneuvers as well. To discuss this point in detail, Eemeren and Houtlosser (2009b) publish an article entitled "Seizing the Occasion: Parameters for Analyzing Ways of Strategic Maneuvering", where they explain clearly their idea of those parameters. To start with, Eemeren and Houtlosser (2009b:3) assume that every move in any argumentative discourse involves SM, which is crucially dependent on the strategic function of the move in question. As such, analyzing the strategic function of argumentative moves should marsh on the same route of systematicness which has been followed with reasonableness and effectiveness. To fulfill this aim, four parameters are proposed for determining "the strategic function a particular move may have at the point in the discussion where it is made" (ibid.). The four proposed parameters, as cited in (ibid.), are: 1. The results that can be achieved by making the moves concerned. 2. The routes that can be taken to achieve these results. 3. The constraints imposed on the discourse by the institutional context; and 4. The commitments of the parties defining the argumentative situation.
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The succinct of each of these parameters is given below: The first parameter, which is mainly concerned with the results of maneuvering, is substantiated, as they (ibid.: 11) put it, by "Theoretical insight into the various components of the analytic overview that ensues from reconstructing a piece of discourse pragma-dialectically as a critical discussion". Eemeren and Grootendorst (1992a: 93) have previously discussed what is meant by the analytic overview: "determining the points at issue, recognizing the positions that the parties adopt, identifying the explicit and implicit arguments, and analyzing the argumentative structure" (For more details on these components, see Eemeren and Grootendorst (ibid: 93 ff.). Eemeren and Houtlosser (2009b: 11) assume that because each of the four stages of a critical discussion has its own constitutive components, so this parameter helps us a lot in investigating systematically the results that are chased after in each category of SM (whether confrontational, opening, argumentational, or concluding). Additionally, they (ibid.) continue, the alleged results in a certain discussion stage consist of the "various options for filling out the various components of the analytic overview applying to the stage concerned". On his part, Eemeren (2010: 11) provides the following exhaustive table (that is, Table (3) below) whereby each stage of a critical discussion is linked with its constitutive components:
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Table (3) The Analytic Components of the Four Stages of a Critical Discussion (Following Eemeren, 2010: 11) Stages & Moves Protagonist
Components analytic overview
Difference of opinion
I Confrontation stage Advancing standpoint Accepting or non-accepting standpoint; Upholding non-acceptance of standpoint
Commissives
(Requesting usage declarative) (Definition/Specification/Amplification/ Etc.)
(Directive) (Usage declarative¹Q )
Challenging to defend standpoint
Directive
II Opening stage
Accepting challenge to defend standpoint
Commisstve
Agreeing on premises and rules of discussion; Declaring to start discussion
Commisstves
(Requesting usage declarative) (Definition/Specification/Amplifi cation/Etc.) Arguments (explicit, implicit or unexpressed); argument schemes; argumentation structure
(Requesting usage declarative) (Definition/Specification/Amplificatio n/Etc.)
(Directive) (Usage declarative)
Requesting argumentation
Directive
III Argumentation stage
Advancing argumentation
Assertive
(Requesting usage declarative) (Definition/Specification/Amplifi cation/Etc.)
Outcome of discussion
Prototypical Types of speech acts¹Q
Assertive
(Requesting usage declarative) (Definition/Specification/Amplif ication/Etc.) Procedural and material starting points
Antagonist
Accepting or non-accepting argumentation (Requesting usage declarative) (Definition/Specification/Amplificatio n/Etc.)
Commissive
Accepting or non-accepting standpoint
Commissive Assertive
(Requesting usage declarative) (Definition/Specification/Amplificatio n/Etc.)
(Declarative) (Usage declarative)
(Directive) (Usage declarative)
IV Concluding stage Upholding or retracting standpoint (Requesting usage declarative) (Definition/Specification/Amplifi cation/Etc.)
The routes that can be taken to achieve the aforementioned results, that is, the second parameter, are represented by the theoretical notion of
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dialectical profile, Eemeren and Houtlosser (ibid.: 11-2) assure. Dialectical profiles, they (ibid.) state, "represent the sequential patterns of the "analytically relevant" moves that the participants in a critical discussion can make to achieve an outcome of a particular discussion stage". Mohammed (2009b: 180), in her turn, views the main advantage of using dialectical profiles: a means of bridging the gap between the ideal model of a critical discussion and less than ideal argumentative practices. The analytic tool for fulfilling the third parameter (that is, the constraints) is instantiated by the notion of argumentative activity types, Eemeren and Houtlosser (ibid.: 12) argue. Argumentative activity types have first been alluded to by Eemeren and Houtlosser (2002) in the form of general notes. The monolithic treatment is presented by Eemeren (2010: 139ff), and that is why it is the one to be quoted. Communicative activity types, as Eemeren (ibid.: 139) phrases it, are conventionalized practices whose conventionalization serves, through the implementation of certain "genres" of communicative activity , the institutional needs prevailing in a certain domain of communicative activity. The genres of communicative activity… vary from adjudication, consultation, disputation, promotion, communion, and others. The communicative activity type that is of special interest to the present study is adjudication, as it embraces the data under scrutiny – civil and criminal trials. Adjudication, as Eemeren and Houtlosser (2002: 138) earlier describe it, "aims for the termination of a dispute by a third party rather than the resolution of a difference of opinion by the parties themselves". Briefly described, as they (ibid.) do, a certain difference of opinion has been developed to become a dispute filed to a public court for resolution.
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That very resolution is maintained by the judge (and/or the jury depending on the legal system under investigation) who decide(s) who is right and who is wrong on the basis of a set of rules (i.e. field-specific rules). After reading carefully, Eemeren and Houtlosser (ibid.) discover that most of those constraints (i.e. rules) are indistinguishable from the aforementioned rules for a critical discussion: " most of these rules are tantamount to specifications of rules for critical discussion aimed at guaranteeing that the dispute is terminated in a reasonable way" (Cf. 3.2.1 above). There are, they (ibid.) exemplify, rules having to do with the burden of proof (that is to say, Rule 2 in the model); others with the data deemed as starting points (that is, Rule 3) and so on. It follows that in adjudication, they (ibid.) conclude, the parties must abide by such constraints (i.e. by the ten rules of reasonableness, substitutively) and, further, readjust their discussion roles for the sake of persuading a third party. On one hand, Mohammed (2009b: 178-82) sums up the importance of taking field-specific constraints (as in adjudication) into account in their necessity "for the analytic investigation of argumentative exchanges". On the other, it is these rules, Eemeren (2011: 153) emphasizes, which confirm the aim behind adjudication: "that justice will be done". Table (4) below, delivered by Eemeren (2010: 143), exposes genres of communicative activities with their related communicative activity types (For different works on various activity types, see Eemeren (2008) for a rapid review of some widely cited works, Zarfesky (2009) for the political field, and Feteris (2009) for the legal field limited to the process of decision-making).
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Table (4) Genres of Communicative Activities with their Related Communicative Activity Types ( Following Eemeren, 2010: 143) Domains of communicative activity Legal communication
Genres of communicative activity Adjudication
Political communication
Deliberation
Communicative activity types
-
Problem-solving communication
Mediation
Diplomatic communication
Consultation
Medical communication
Consultation
Scholarly communication
Disputation
Commercial communication
Promotion
Interpersonal communication
Communication
-
Court proceedings Arbitration summoning presidential debate presidential debate general debate in parliament prime minister’s question time custody mediation counseling informal intervention peace talks trade treaty diplomatic memorandum doctor’s consult prescription health rubric book review scientific paper conference presentation advertorial sales talk classified ad chat love letter apology
Concrete speech events
Defense pleading ay O.J. Simpson’s murder trial 1960 Nixon-Kennedy television debate
Mediated talks between Richard and Tammy about custody Vanessa Israeli-Palestinian exchanges at Camp David Bart’s February 13 visit to his doctor Dr. Apt’s critique of the Confrontation volume
Shell’s newspaper message about its role in Nigeria Dima’s talk with Corina about how they spent the weekend
As for the present work, the genre of analysis is adjudication, as mentioned above, and the related communicative activity type aimed to be analyzed is court proceedings. The fourth, and last, parameter is substantiated by the commitment sets developed by the arguers in the course of the argumentative moves they perform, as Eemeren and Houtlosser (2009a: 12) certify. To elaborate on the notion of committedness within argumentation, it is worth referring to Eemeren and Grootendorst (1984: 71-2) who, following Searle’s (1969) tradition, have previously listed the following
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felicity conditions which apply to the illocutionary acts of accept and reject (this notion becomes more obvious in the sincerity conditions): 1- The propositional content condition: the speech utterance in which acceptance or rejection is expressed must have as its propositional content the opinion to which the argumentation relates. 2- The essential condition: the utterance must count as an acceptance or rejection of the expressed opinion. 3- The preparatory condition: the person performing the illocution (i.e. the listener) must believe that the person performing the illocutionary act complex of argumentation (i.e. the speaker) is thereby making a serious attempt to convince him of the (un)acceptability of an expressed opinion. 4- The sincerity conditions: a- The speaker (who acted as a listener during argumentation) believes that the propositions expressed in the argumentation are acceptable. b- The argumentative constellation is a justification or refutation of the expressed opinion; and c- The expressed opinion, depending on these grounds, must be accepted or rejected, as the case may be. It might be seen, then, that performing argumentation (by the speaker) gives the listener the right to hold the speaker to O (i.e. opinion), to E1,…,En (that is, expressed propositions), and to C (E1,…,En) (that is, constellation of expressed propositions) which justifies or refutes O. The acceptance of argumentation, on the other hand, gives the listener (i.e. the person who acted as speaker during argumentation) the same right to hold the speaker (i.e. the person who acted as listener during argumentation) to the same opinion, propositions and the justification or refutation function
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of the constellation of propositions (Eemeren and Grootendorst, 1992b: 595-6). Eemeren (2010: 164) has the final word to say on those parameters: Only if these four are all duly taken into account in analyzing the strategic maneuvering manifesting itself in the discourse at the point the analyst is focusing on, can the strategic function that may be fulfilled by a particular argumentative – characterized by a specific combination of topical choice, audience orientation, and presentational design – be determined.
3.4 Modes of SM It has been pointed out before that SM can take place by highlighting one of its three aspects more than the others (Cf. 3.2.2.3 above). This leads to yielding miscellaneous modes of SM based on which aspect is made more prominent. In this regard, it seems that Eemeren and Houtlosser (2009: 15) have discussed the first mode: appealing to an authority or alternatively argument from authority (Cf. 2.2.4 above), for the sake of distinguishing between sound and fallacious SM. They (ibid.) have come up with the conclusion that SM by appealing to an authority is "potentially a sound mode of strategic maneuvering" due to the fact that we are fully justified to make recourse to an authority who is supposed to know better whether from academic education by being an expert (i.e. authority by expert opinion) or by being a native (i.e. authority by a public opinion). Astoundedly, their attempt entails that all the argumentation schemes discussed before (Cf. 2.2. above) are in fact modes of SM. This is engendered by what Eemeren and Houtlosser (ibid.: 16) pay attention to: argument from authority is a "variant of the Argument Scheme Rule", that is to say, Rule 7 in the reasonable conduct of SM in a critical discussion. Simply worded, argumentation schemes have been separately 116
allotted a specific rule in the theory, and since one variant of such schemes is considered a mode, then the remainder of variants, by association, are regarded modes as well. It follows that at face value we have eleven modes of SM in this work (in relation to the eleven schemes commonly used in law, Cf. 2.2 above). However, these eleven modes are not the only ones expected to be found out in the data under study. Four other modes are thought to breathe relevance to the aims of this work: SM with persuasive definitions, SM with rhetorical questions, SM with praeteritio, and SM with dissociation. Each is discussed in detail below.
3.4.1 SM with Persuasive Definitions "Definitions" are not difficult to grasp owing to the fact that they "play a crucial role in every field of human reasoning and interpersonal interaction" (Ilie, 2009: 39). Particularly in arguing, "a speaker often appeals to definitions that reinforce the power of his/her arguments and/or to definitions that help to refute the opponent's arguments" (ibid.: 35). However, Walton (2006: 245 ff) has earlier presented many types of definitions, the most important to this work are: lexical, stipulative, and persuasive. The first, he (ibid.: 246) defines, is the one "used to explain the meaning of a word (or phrase) to someone who looks it up in the dictionary". In other words, a lexical definition is mainly concerned with connotative (i.e. conventional) meaning in language use. Stipulative definitions, by contrast as cited and exemplified in (ibid.: 246-7), are "purely arbitrary, and the definer is even free to invent a new word to assign any meaning to it that she chooses [sic]": (3.1) A "tigon" is defined as the offspring of a male tiger and a female lion. Most other definitions, Walton (ibid.) proceeds, are an amalgam of these two types. One such hybrid type is called "persuasive definition",
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which is the first mode of SM to be focused on. These are definitions which take "a term that has a conventional lexical meaning in normal usage, and then presents a partly stipulative definition of a kind that supports one side and goes against the other side of an issue in a persuasive dialogue" (ibid.). Below is an illustrative example given by Walton (ibid.: 247-8): (3.2) "Football" means a sport in which modern-day gladiators brutalize one another while trying to move a ridiculously shaped "ball" from one end of the playing field to the other. Obviously, in this example, "football" is negatively defined as being "pointless, silly and brutal", Walton (ibid.) comments. In his turn, Zarfesky (2006: 403 ff.) uncovers the relationship between SM and persuasive definitions. He does so by: 1. Identifying the aspects (of SM) which are made prominent by this mode: presentational devices and audience demand. This prominence is illustrated, by him, with reference to two related concepts: loaded language, and pandering. The former, he (ibid.) explains, has to do with the case of taking "advantage of connotative meaning, using language in a way that will give a boost to one's position". The latter, he (ibid.: 403) continues, is concerned with advancing "claims and evidence that are acceptable to a particular audience but might well be unacceptable to a different particular audience". 2. Providing a triad of features that justifies the workability of this mode of SM: a. The intrinsic contestedness of some terms. Such terms, having no fixed meaning, offer rich opportunities for their holders to tailor the term to their own position via making the best out of the terms' presumably (un)favourable connotation. Examples of such terms are: literal, prudent, progressive, normal and the like (ibid.: 405)
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b. The facilitability of some terms. That is, some terms facilitate "rhetorical depiction", i.e. the ability to picture a scene in the mind of the addressee through the use of certain words. One example of such words is "torture", which does not carry an abstract connotation only; "it conjures images that most people would find utterly repugnant" (ibid.: 406). c. The analogy-provoking capacity of some terms. Analogies represent a form of rhetorical arguments owning to the fact that "people are perhaps most readily influenced by recognizing a resemblance between what is unfamiliar to them and what they already know". For example, it is ambiguous into what category the term "alternative interrogation techniques" falls (that is, into those which are acceptable or forbidden). Thus, the arguer does have the opportunity to interchange this term with "torture", implying that the similarities (ensuing from analogy) between the two activities outweigh the differences (ibid.).
3.4.2 SM with Rhetorical Questions Rhetorical questions (henceforth, RQs) are a very common presentational device employed in almost all types of communicative practices. Because of their popularity, Henkemans (2009a) assumes that they should take place in SM. Consequently, she (2009a: 15) investigates two main functions of RQ in a critical discussion. First, "they are used as a means of putting forward standpoints", and secondly, "as a means of putting forward arguments". Just like Zarfesky (2009), she (ibid.: 18-20) begins by revealing the relationship between RQ and SM: those questions work on the standpoints agreed upon in the opening stage whose rhetorical aim is to establish the procedural and material starting points that are optimal for the party concerned (See Table (1) above). Due to their having the form of questions, she (ibid.: 18) goes on, RQ do not commit their holders to a certain burden of proof. Rather, they give the impression that the
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antagonist can still agree or disagree. Put another way, the force of RQs is double-dimensioned: from the side of the protagonist (who is not committed to a burden of proof), and the antagonist (who can still have the freedom to agree or not). To clarify more, Henkemans (ibid.: 18-9) distinguishes between the following where (a), (b), and (c) represent different schemes: (a) P: Do you agree that X? A: Yes, I do. P: Then you should also agree with me that Y! (b) Y, because isn't it that case that X? (c) Y, because X. What Henkemans (ibid.) believes is that scheme (a) involves asking the other party about her/his agreement with a particular proposition (that is, X), and when the case turns up to be as such, then that X is used as an argument (that is, Y) for the standpoint. Conversely, in the scheme (c) the argument Y is advanced making the proposition X concessive, and then it is declared as a common starting point. In both cases, the protagonist is committed to a certain burden of proof of the standpoint advanced by the starting point, which should be defended whenever the arguer is asked to do so. The starting point in (c), by contrast, Henkemans (ibid.) goes on, is half way between both (a) and (c) meaning that a certain argument (Y) is advanced on the basis of the already accepted starting points. As such, no proof can be inquired about, because "the protagonist can defend the argumentation by pointing out that the proposition in question forms part of the list of propositions accepted by both parties in the opening stage" (ibid.). To conclude, Henkemans (ibid.: 22) declares that the twofold function of RQs as a question and as an assertion enables such questions to simultaneously act "as proposals to accept a common starting point and as arguments the acceptability of whose propositional content is presupposed". 120
3.4.3 SM with Praeteritio Praeteritio is "a figure of thought by which … attention is drawn to something by professing to omit it". This is the definition which Henkemans (2009b: 242) cites in the detailed research she conducts about this presentational device, as she assures. The main characteristic of this device, she (ibid.) proceeds, is what is referred to as "false reticence": pretending of not giving particular information and in so doing arguers do convey
this
information
nevertheless.
The
usefulness
of
this
presentational device is summarized, by her (ibid.: 246), in the following lines: This figure is useful if employed in a matter which it is not pertinent to call specifically to the attention of others, because there is advantage in making only an indirect reference to it, or because the direct reference would be tedious or undignified, or cannot be made clear, or can easily be refuted. As a result, it is of greater advantage to create a suspicion by praeteritio than to insist directly on a statement that is refutable. To elaborate, Henkemans (ibid.: 244) divides the cases of employing praeteritio into two broad types each with its own instantiating techniques: a. Those whereby speakers deny that they are committing themselves to a certain proposition. This is mainly performed by a clause introduced by 'but', "in which the speaker puts forward an alternative assertion, which at first sight seems to be a different statement, but on a closer inspection turns out to be the same thing in the context at hand" (ibid.). This is an illustrative example: (3.3) I am not saying that the pope is ignorant, but he has said such ugly things about Islam, that you cannot do otherwise but conclude that he does not know about our religion. Islam means peace. (ibid.: 243)
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b. Those whereby speakers deny that they are going to tell, mention, or talk about something. Four techniques are used to embody this type: 1. Avoid using an all-or-nothing formulation; instead, one uses a construction that allows for gradation such as "I will not go into details" or "I will not elaborate". Owing to the fact that, Henkemans (ibid.) continues, there are no borderlines on the basis of which something can be judged as being detailed or elaborated, such a matter will always remain relative and subjective to a great extent. She (ibid.: 245) gives the following example: (3.4) Well, let me start by pointing out Livingston's bad side. I will not go into detail but will give you a list. The cops are corrupt! If they don't like the color of your skin or the clothes you wear, you will be stopped eventually for no reason. The mayor has too much power and he's loose with it. Helping himself and his friends, paying no attention to the town. There are no family activities. Arts? There is a park right next to a highway and a sewer canal, want to play? As far as tourism and history goes who knows? I was never educated about our past here. No one speaks a word of it and tourism is a bust; who wants to come get pulled over (everyone knows about Livingston police). That's all I have to say about this small rumor infested town. 2. Using such constructions as "I will not tell you how". The force of this technique is crystallized in the potential ambiguity of 'how' as a subordinating conjunction: it exhibits double-reference; either to the way in which something is done, or to introduce a statement of fact. Henkemans (ibid.) illustrates these ideas even more by giving the following example: (3.5) I will not tell you how John lost all his money at the casino. This sentence can be interpreted in two ways:
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- I will not tell you in what way exactly John lost all his money at the casino; or - I will not tell you that John lost all his money at the casino. Whatever the case might be, Henkemans (ibid.) comments, "the information the speaker claims not to give is exactly the information that he does get across". 3. Using such constructions as "We will not talk about X today", where X is a noun (phrase), and not a full statement. In the following example, Henkemans (ibid.: 246) assures that there is a budget deficit: (3.6) We will not bring up the matter of the budget deficit. 4. Employing past conditionals. She (ibid.) explains this by contending that past conditionals help arguers to "make it clear that the nonfulfillment of a specific condition prevents them from making a statement [which] is made nonetheless". Here is an example: (3.7) If you were not my friend, I would say you are a liar. As with the previous modes, the links between SM and this presentational device should be uncovered for a more systematic treatment. Henkemans (ibid.: 248-53) starts this task by assuming that "praeteritio may be functional in each of the stages of an argumentative discussion" (p. 248). Consequently, by taking into account the dialectical and rhetorical aims of each of the stages as listed on Table (1) above, she details the employment of praeteritio in each of the stages as follows: 1. The Confrontation Stage: The following are mainly used in this stage: a. Avoiding the discussion of a standpoint by excluding it from the discussion, e.g. (3.8) I do not want to waste my time commenting on such baseless accusations. I am tired of accusations from people who want to have relevance by lying (p.251).
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The speaker, here, does comment on the accusations by calling them baseless and by describing their holders as liars. b. Preventing one's opponents from disagreeing with them, e.g. (3.9) We have a shortfall between what the General Assembly voted in our budget and what we have received so far by way of commitments and pledges of almost seventy million dollars. If this money does not arrive, somehow we will have to reduce activities in our budget by 70 million dollars, and you can imagine what kind of pain that will be. I do not want to scare anybody and I am sure I won't need to scare anybody because I am confident that the international community will live up to its responsibility and cover this deficit (ibid.). In this example, the arguer is first, threatening his opponents by explicitly denying any intent to scare anybody. On the other hand, and because of this denial, it becomes very difficult, if not impossible, to accuse the arguer of pressurizing his opponents. c. Defining the difference of opinion in a way that enhances arguers' chances of winning the discussion, e.g. (3.10) One of the secret alerts that was leaked was little more than an abstract of a paper published recently by Stanford University researchers. Given CERT's non-profit, public-good mission, it's hard to see why CERT did not release this report to the public, given that the information on which it was based had already been released (and even discussed on Slashdot). It's worth noting that, having set up a system where it is paid to deliver security secrets to the ISA membership, CERT has an economic incentive to manufacture secrets or to increase their perceived value to ISA members by withholding the secrets from the public for longer than necessary. I have no reason to accuse CERT of doing this
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systematically, but its handling of the Stanford paper does raise questions (ibid.: 251-2). What is found in this example, Henkemans (ibid.) discusses, is an insinuation to what CERT has done (that is, manufacturing secrets), though apparently claiming to deny such accusation (through the sentence written in bold). d. Denying commitment to a certain proposition, and offering an alternative standpoint that amounts to the same thing, e.g. (3.11) I suppose it would be too easy to say that it would take God to provide a quality public education in America, but it is the truth. As civilizations turn away from God, crime rates rise. As musicians turn away from God, their music becomes increasingly discordant and painful to listen to. In the same way, when you take God out of a school's education system, it slowly loses all its quality. 2. The Opening Stage: Praeteritio can be used to indicate that the other party has already accepted something as a starting point, e.g. (3.12) To me the baby boomer way to live life is to make the most of the options we now have, especially the option to work from home. I do not have to remind you that we have always done that. Once we see an opportunity and it looks good we go for it. This is just another one of those things we can choose to do. And just like you I would rather do it the easy way than the hard way. […] Come join the baby boomer boom. Work from home (ibid.: 249). 3. The Argumentation Stage: This presentational device is employed to present an argument, e.g. (3.13) Oh, to continue my constant rant with work in general....did you know that Chinese workers get an average of 3 weeks vacation
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a year??? I read that in an article last week; I couldn't believe it. They don't have freedom of speech, but they get more vacation than we do? […] I just think we deserve more. The “best” country in the world can't give its employees as much vacation as China? I won’t even mention the amount of vacation time Europeans receive (ibid.: 249-50). 4. The Concluding Stage: Praeteritio is used in this stage to maintain doubt, e.g. (3.14) Thank you very much [t)], and I promise not to mention that I disagree (oops) (ibid.: 250).
3.4.4 SM with Dissociation Dissociation, as a linguistic phenomenon, is discussed in detail throughout several works (Cf. Rees 2006, 2009a, 2009b, 2009c, and Andone and Gâ, 2011). However, this mode is precisely and concisely discussed by Rees in his (2009a), and this is the reference that is to be basically depended on here. By dissociation is meant, Rees (2009a: 25) defines, the splitting up of a unitary notion (or at least thought to be as such by the audience) "into two new notions, one of which comprises the aspects of the original notion that the speaker considers real or central (term II), the other, the aspects that he considers apparent or peripheral (term I)". [For an historical dimension on dissociation, see Rubinelli (2006)]. Rees (ibid.: 26) proceeds in uncovering the facets via which dissociation satisfies the dialectical and rhetorical dimensions of SM. He begins with dialectical reasonableness by claiming that this mode enhances reasonableness because it is built on two speech acts: distinction and definition (where both belong to the macro-class of usage declaratives whose main function is clarifying linguistic usage and structuring our conception of reality). Distinction, he (ibid.) illustrates, is
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symbolized in the basic technique of "splitting up", on which dissociation rests. Definition, on the same par, is included because the "original term is newly defined and alongside the old one a new term is called into being, receiving a definition of its own" (ibid.). Rhetorical effectiveness, in turn, is satisfied in dissociation, as Rees (ibid.) speculates, "because it is a technique through which a speaker may present a particular state of affairs in a light that is favourable to the speaker's interests". The following example, cited in (ibid.), may help to understand this mode better: (3.15) The granddaughter of Maria Montessori, responding to an accusation that her grandmother was vain and ambitious by countering with the dissociations that "She was not vain but loved beautiful clothes" and that "She was driven, something different from ambition". In this example, Rees (ibid.) comments, the distinction is highlighted by differentiating between being vain and just loving beautiful clothes; definition, in turn, is brought to the forefront by declaring the resulting notions (that is, vain vs. loving beautiful clothes, and driven vs. ambitious) different. It seems necessary at this point to bring to notice the aspects of SM which are prominent in this mode, the thing which Rees has not alluded to unfortunately. Actually, two aspects are highlighted in this mode: topical potential and presentational devices. This can be clearly supported by the two speech acts which configure dissociation. Distinction, the first speech act, involves creating a new topic (notion) from the old one, as argued in the definition provided by Rees. Definition, in turn, has already been shown to reinforce presentational devices (Cf. 3.4.1 above).
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3.5 Persuasive Effects of SM It has been indicated before that the extended dimension of the standard pragma-dialectical theory (i.e. the rhetorical one) involves persuasiveness (Cf. 3.1 above). It follows that measuring the persuasive effects of SM should have a place in this recently developed theory. This task, however, has been undertaken by O'Keefe (2009a and 2009b), who (2009a: 79) emphasizes that "Persuasion effects research aims at understanding how and why persuasive messages have the effects they do; that is, persuasion effects research has descriptive and explanatory aims". In his other work, he (2009b: 286) shows the way via which such effects can be computed: In any individual study, the observed difference in persuasiveness between the two messages can be expressed numerically as an "effect size", a quantitative index of the size and direction of the difference… This average effect size describes the average difference in persuasiveness between the two message types and so provides a sense of the potential persuasive advantage that an advocate might obtain by choosing the more persuasive strategic option. For a better understanding, O'Keefe (ibid.: 288-92) discusses these effects of SM by distinguishing between two main types of maneuvers: one which involves making the same arguments, and another which involves making different arguments.
3.5.1 Maneuvers with the Same Arguments O'Keefe (ibid.: 289-90) lists five different tokens of the maneuvers which involve messages built on the same argumentative grounds: gainloss appeal framing, identified vs. unidentified information sources, complete vs. incomplete arguments, and figurative vs. literal expressions. The first token, he (ibid.) clarifies, involves a distinction between two types of appeals: gain- and loss-framed appeals. The former pertain to emphasizing the desirable aspects of compliance with the advocated view. Below is an example cited in (O'Keefe, 2009a: 81):
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(3.16) If you take your hypertension medication, you'll probably get to play with your grandchildren. The latter, by contrast, O'Keefe (2009b: 289) identifies, have to do with stressing the undesirable aspects of noncompliance. The following example, cited in (2009a: 81) illustrates better: (3.17) If you don't take your hypertension medication, you might not get to play with your grandchildren. In the gain-loss appeals, there is no dependable difference in persuasiveness; as such applying one in preference to the other is of no persuasive strategic value (O'Keefe 2009b: 289) . The second message, he (ibid.) argues, is concerned with explicitly stating the ultimate conclusion of a particular argument, as opposed to another whose conclusion is left implicit. Needless to remind, here, that leaving a conclusion unstated has nothing to do with the content of the argument per se; it is all about the covert or overt exposition of the conclusion. Messages with an explicit conclusion "are significantly more persuasive than parallel messages omitting such a statement" (ibid.).[See argument completeness below for an example] Messages which identify their source of information, that is, the third type, he (ibid.) goes on, are, axiomatically, more persuasive than their counterparts without such identification (Cf. 2.2.10). By argument completeness is meant, O'Keefe (ibid.: 290) defines, the presence and/or absence of the one or more of the argument components: premises (i.e. data), conclusion (i.e. claim), and supporting information (i.e. warrant). The complete argument has previously been alluded to by Walton (2004: 146) as "syllogism" as in: (3.18) All plants are living thing. All trees are plants. Therefore, all trees are living things.
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It can be seen that this type of message is interconnected with a message whose conclusion is explicit. Incomplete argument, on the other hand, is referred to as "enthymeme" (ibid.: 143), as in: (3.19) Socrates is mortal because he's human The complete syllogistic structure of this argument is (3.19a) All humans are mortal (omitted). Socrates is human (stated) Therefore, Socrates is mortal (stated) (Web Source 1). Enthymemes are equivalent to arguments whose conclusion is implicit. According to O'Keefe (ibid.), syllogisms (i.e. complete arguments) are more persuasive than enthymemes (incomplete ones). Finally, the use of figurative expressions (especially metaphors), O'Keefe (2009b: 290) terminates, to advance arguments is more persuasive than the literal expression of the same argument: (3.20) Television is poison (3.20a) Television has harmful effects.
3.5.2 Maneuvers with Different Arguments In this type of maneuvers, O'Keefe (ibid.: 291) explains, we have two varieties: one-sided vs. two-sided messages, and culturally-adapted vs. unadapted value appeals. The first variety, he (ibid.) proceeds, varies along a supportingopposing continuum, meaning that maneuvers with different arguments either present supporting arguments only, or in addition to supporting arguments such maneuvers present opposing counterparts as well. Onesided messages only present supporting arguments, that is to say, supporting to their holder's point of view, whereas two sided-messages present opposing arguments (against the protagonist's) in addition to providing supporting peers (to the antagonist's per se). The persuasive
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effects of these two message-varieties are a little bit complex, O'Keefe (ibid.) asserts. Two-sided messages, themselves, have two varieties. Refutational two-sided messages, the first variety, "discuss opposing arguments by attempting to refute them (undermine them)", O'Keefe (ibid.) defines. Non-refutational counterparts, the second variety, he (ibid.) continues, "mention opposing considerations but do not try to refute them directly (but instead commonly try to overwhelm them with supportive arguments)". The first variety (i.e. refutational) is more persuasive than one-sided messages; the second variety (i.e. non-refutational), however, are less persuasive than one-sided messages (ibid.). Adapting to cultural appeals, that is to say, the second variety of maneuvers with different arguments, has to do with the second aspect of SM, i.e. attuning to audience demand. Arguments which appeal to the cultural values of the addressed audience are, naturally, more persuasive than those without such adaptation, O'Keefe (ibid.: 291) emphasizes. One last point which should be brought to focus here. The persuasive effects of SM as just proposed by O’Keefe (ibid.) cannot be made use of in the present work. This is mainly justified by the fact that it is the ASs discussed previously, which make a basic component of the model of analysis that will be developed in the next chapter, that control the kind of message communicated. That is, the kind(s) of arguments made by a certain arguer is (are) set in advance by the kind of AS(s) employed. As such, the original notion as proposed by O’Keefe (ibid.) has no role to play in the developed model. They have been mentioned, however, owing to their likely usefulness in other fields of investigation.
3.6 Derailments of SM: Fallacies It has been stressed before that the basic criterion on which SM rests is the balance panted for, by arguers, between reasonableness and 131
effectiveness; yet achieving this balance cannot be taken for granted in all cases. All in all, what arguers are after is to attain their own goals through argumentation, and sometimes they may side themselves with one part of SM (be it reasonableness or effectiveness) in preference to the other on the basis of what achieves their goals to the utmost. Eemeren and Houtlosser (2002: 133) emphasize that whenever reasonableness overrules effectiveness or vice versa, SM, then, is said to get "derailed". Such derailments take place "when a rule for a critical discussion has been violated in the discourse" (ibid.: 134). To clarify more, Eemeren and Houtlosser (ibid.) associate derailments of SM with fallacies (i.e. wrong moves in argumentative discourse). They justify this association by claiming that fallacies, in the standard pragma-dialectical model, are violations of one (or more) of the rules for a critical discussion, those rules represent the reasonable part of SM (Cf.3.2.1 above), as such fallacies, by association, are derailments of SM. This short introduction paves the way for the operational definition of fallacies which will be adopted by this study. This definition, as provided by Eemeren and Grootendorst's (2004: 175), reads as follows: Every violation of any of the rules of the discussion procedure for conducting a critical discussion (by whichever party at whatever stage in the discussion) is a fallacy. Being violations of a well-defined system of rules, they (ibid.) go ahead, fallacies are regarded as less constructive or even destructive to an argumentative discourse. [For other definitions, see Walton (1986:323-5; 2004: 241, and Grootendorst, 1986: 331-4. For the survey of the approaches to fallacies other than the pragma-dialectical one, see Eemeren (2001: 135-64)] As a matter of fact, Eemeren and Grootendorst (1984: Ch.8) have previously ventured on getting fallacies aside from the standard treatment (that is, since Aristotle up to Hamblin (1970:12) where another treatment
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is proposed in which fallacies are defined as "arguments that seem to be valid but they are not") by throwing the first seed of their pragmadialectical model. Later on, they have maturely delivered their model in (1992a) where they have specified eleven chapters for dealing in detail with fallacies in order to clarify their genuine way of approaching the topic. In (2001) Eemeren surveys all the approaches that have radically influenced the progression in the investigation of fallacies. In (2002) Eemeren et al. briefly yet exhaustively present what has been already done in (1992a) with further modification of the original model by christening specific terminology to the rules for a critical discussion. Eventually, in (2004) Eemeren and Grootendorst make every possible use of the weaknesses in the previous works to bridge any gap of inquiry or criticism (and that is why the operational definition mentioned at the beginning of this section is quoted from Eemeren and Grootendorst (2004). As alluded to above, the pragma-dialectical approach is the one to be selected. The following reasons posit the justification for such an adoption: 1. Owing to the fact that this study is mainly concerned with SM, which is the extended version of the standard pragma-dialectical theory (see the next chapter for more details), the pragmadialectical model inevitably imposes itself as an analytical tool. 2. Walton (1995: xii) asserts that the Amsterdam view (it is so called after its Dutch launchers Frans van Eemeren and Rob Grootendorst) plays a "vitally important role in defining the concept of fallacy within a framework of a critical discussion". Furthermore, Eemeren and Grootendorst (2004: 185) assert that the identification of the violations of the rules for a critical discussion
is
necessitated
133
by
first
reconstructing
an
argumentative discourse as a critical discussion.
It has been
made clear before that a trial (the data under examination) is itself a critical discussion; this very model, thus, represents the most accurate analytical apparatus. 3. Eemeren and Grootendorst (ibid.: 175) themselves see the advantage
of
their
model
basically
embodied
in
the
systematicness of analysis. They confirm that the use of subjective and vague expressions such as "having the appearance of validity" and "being apparently correct", a feature that Hamblin (1970:12) took to be characteristic of traditional analyses of fallacies, can be avoided. Based on the third remark, Eemeren and Grootendorst (2004: 185) claim that "the whole range of classical fallacies can be analyzed in a systematic way". [For the pragma-dialectical treatment of the well-known traditional fallacies, see: Eemeren (2001), and Eemeren and Grootendorst (2004: 175-80)]. The following lines introduce a clear picture of how fallacies are analyzed according to the mechanism of this model.
3.6.1 Fallacies Pragma-Dialectically Analyzed Before embarking on exposing the various components of this model, it is very important to bring to notice one issue: "we shall first deal with contraventions that concern the distribution of speech acts in accordance with the model of a critical discussion", to use Eemeren and Grootendorst's (ibid.: 163) exact words. It has been made clear before that in their pragma-dialectical model, Eemeren and Grootendorst (1984) identify which speech acts are admissible at each stage of a critical discussion (Cf. 2.3.2.1 above). Those speech acts mainly belong to the following macro-classes: assertives, commisives, directives, and only a special kind of declaratives named usage declaratives. This explicitly excludes expressives and declaratives. They (2004: 164) correctly justify the exclusion of expressives by
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contending that "it is because they presuppose the truth of the proposition concerned, while that is in principle precisely what is at issue or ought to be at issue". [For the justification of excluding declaratives, see b. below] What is critical to highlight at this point is that the distribution of speech acts is rigorous: it accepts no adaptation, be it addition or deletion. To communicate what precisely and concisely meant by this claim, it is safer to quote Eemeren and Grootendorst (ibid.): Not every speech act belonging to these four categories may be performed at will by each party at every stage of the discussion. First, the possibilities are limited to the kinds of speech acts belonging to the categories that are listed in the model. Second, provisions included in the model bind the performance of admissible speech acts. This means that the only speech acts that may be performed are the ones listed in the model that have the specific role indicated in the model, at the stage in the discussion indicated in the model, and by the party indicated in the model. They (ibid.: 163-5) carry on explaining the ways by which the provisions laid down in the model can be violated: It may happen that an act performed: a. Is not actually a speech act. They exemplify their idea by arguing that "shaking a fist menacingly… is an immediate violation of Rule 1 for conducting a critical discussion stating that the participants have the unconditional right to put forward or call into question every standpoint…". In such a case, the argumentum ad baculum (i.e. fallacy of the stick or appeal to threat) is committed. [For more information on this type, see Woods, 1986: 343-82] b. Does not belong to the right category of speech acts. They (ibid.: 164) invoke declaratives to show the fallacy committed. They justify the exclusion of declaratives (except for usage declaratives, as mentioned before), as they did with expressives, from their model by confirming that "because they always
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require some form of authority in an extra-linguistic institution". Consequently, there is again violation of Rule 1, where the authority enables a party to silence the opponent which is wholly against the aforementioned rule. c. Is not the right member of the category in question. The best example to give on such a case is the category of directives. The macro-speech act of directives embraces many micro-speech acts (e.g. command, request, prohibition, advice, to name just few), yet not all of them are admissible in a critical discussion. The only members that are welcome in a critical discussion are: - Challenges: Whereby the antagonist challenges the protagonist to defend the standpoint; and - Requests: Whereby the antagonist requests the protagonist to perform argumentation, or either party requests the other to perform a usage declarative. Commands and prohibitions, being members of directives, are hindrances to the discussion. d. Is not performed by the right party. For example, the antagonist suddenly starts to perform an assertive without being requested to do so. e. Is not performed at the right stage of the discussion. When the protagonist, for instance, comes up with new arguments in the concluding stage, a serious confusion to the resolution of the difference of opinion occurs. f. Does not fulfill the right role. For example, accepting a particular premise instead of the defended standpoint in the concluding stage. Among the many books written by Eemeren and Grootendorst on the way fallacies are pragma-dialectically analyzed, Eemeren et al's
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(2002: 109-54) is central. In that book, they analyze concisely and precisely various fallacies in accordance with the ten rules. They do so by cutting up the rules into two halves (that is, two fives) distributed over two extremes: the presentation of standpoints and arguments (which is the main domain of the first five rules). The second half has to do with the rules occurring in the argumentation and concluding stages of a critical discussion [For a detailed study of fallacies, see Eemeren et al. (2009)]. To provide a vivid picture, it seems useful to tackle each of these violations with some satisfactory detail supported by an illustrative example for each [For the exhaustive list of all the fallacies as provided by Eemeren and Grootendorst (1992a), see Appendix (1)]: Rule 1: Parties must not prevent each other from advancing standpoints or casting doubt on standpoints (the Freedom Rule). Eemeren et al. (ibid.: 109) assure that a difference of opinion cannot be satisfactorily resolved unless "it is first brought to light". This means that the conflicting parties must give each other enough space and freedom to advance and/or criticize standpoints and arguments. Unless thus done, no resolution is attained. Two major ways are utilized to violate this rule: 1. Placing limits on the standpoints or doubts that may be expressed. This, in turn, can be performed in two ways: c. Declaring certain standpoints sacrosanct, or not open to question. They (ibid.) give the following example: (3.21)
I'm going to have the kitchen remodeled. We can discuss
style and layout or anything you want, but not whether it will be done. b. Declaring certain standpoints taboos, as in:
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(3.22) I don’t think you should say that Grandmother shouldn't have remarried. One should not speak ill of the dead. 2. Restricting a party's freedom of action. Here, they (ibid.: 111) cite two variants each with its own strategies: a. To put a party under the pressure of not putting forward a certain standpoint or object. Three possibilities are found here: i.
Physical force (which is outside the scope of this work).
ii.
Fallacy of the stick (i.e. argumentum ad baculum), where threats are expressed either directly (e.g. If you try to get the city council to approve that, I will send my thugs after you) or indirectly (e.g. Of course you must make your own decision, but remember that we're one of your top clients).
iii.
Appeal to pity (argumentum ad misericordiam), where the pressure is attained via playing on a party's emotions, as in:
(3.23) How can you have given me a failing mark for my thesis? I've worked on it night and day. b. Discredit the party in the eyes of the public by casting doubt on his expertise, integrity or credibility. The salient strategy imposed here is the argumentum ad hominem which has already been discussed in detail (Cf. 2.2.8 above). Rule 2: A party that advances a standpoint is obliged to defend it if the other party asks him to do so (the Burden of Proof Rule). In order for a difference of opinion to be smoothly resolved, a party who advances a standpoint must always show readiness for defending it. Otherwise, the discussion will stagnate in the opening stage, where the
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roles of protagonist and antagonist do not work anymore, Eemeren et al. (ibid.: 114) explain. They (ibid.: 114-6) highlight two major ploys of violating this rule: 1. Escaping the obligation to defend a standpoint. This is mainly achieved through shifting the burden of proof onto the person criticizing a standpoint: "You first prove that it isn't so". Here we have a clear example of committing the fallacy of shifting the burden of proof. They (ibid.: 114) justify their claim by contending that criticizing does not entail bearing any burden of proof. When so doing, "The antagonist is then being saddled with the role of protagonist of the opposite standpoint, even though the antagonist has not advanced a standpoint at all". They (ibid.: 115) provide this interesting example: (3.24) An example of an exception to the rule "He who makes a claim must prove it" can be found in alimony cases. Let us take the familiar situation of a woman who has a right to alimony from her ex-husband. The woman notices that her ex-husband's income has gone up and wants more alimony. According to the rule just stated, she would have to prove that his income has risen. That is very difficult, in view of bank privacy and so on, and in practice the judge shifts the burden of proof to the husband: he must put his papers on the table and then it will be seen whether his income has gone up or not. This conflicts with the rule "He who makes a claim must prove it". 2. Evading the burden of proof. This may be performed in three ways: a. Axiomatically presenting a standpoint. The following represent the most common indications of something being
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self-evident: "It is obvious that…", "Nobody in their right mind would deny that…", "It goes without saying that…". b. Presenting personal guarantees for the correction of the standpoint. Eemeren et al. (ibid.: 116) cite the following indicators: "I can assure you that…", "There is no doubt in my mind that…", "I am absolutely convinced that…", "You can take it from me that…". d. Formulating the standpoint in a way that makes it immune to criticism owing to its inability to be tested or evaluated. Examples of such hermetic formulations, as they (ibid.) christen them, are: "Women are by nature possessive", "Men are basically
hunters", "The
Frenchman is
essentially
intolerant", "The youth of today is lazy". Rule 3:
A party's attack on a standpoint must relate to the
standpoint that has indeed been advanced by the other party (the Standpoint Rule). Violating this rule is demonstrated when attacking a standpoint other than the one originally advanced by the protagonist. Eemeren et al. (ibid.: 117-8) binary instantiate this violation: 1. Misrepresenting
the
original
standpoint.
This
involves
presenting the standpoint "in a way that makes it difficult to defend, or even untenable or ridiculous". This is arrived at by exaggerating or oversimplifying it. Here is an example on the former: (3.25) The result is very discouraging because of the way he goes about things: quoting some sentences completely out of context, suggesting meanings that aren't there, and finally, with several well-chosen exaggerations – which aren't there either –
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making the prey ripe for his omniscient and omnivorous voracity. I find this a superficial way of discussing work. Exaggerating a standpoint, they (ibid.) discuss, involves replace such quantifiers as "some" or "few" with "all". This, actually, turns out a standpoint to be untenable to defend because it is very easy to attack standpoints centered on absoluteness. Oversimplification, in turn, is accomplished by leaving out nuances and restrictions. They (ibid.) hand the following illustrative example: (3.26) Accusing someone of having written that homeopaths are charlatans, whereas what the person had actually written was that homeopaths are a group "in which the line between legitimate and charlatan is fuzzy". 2. Attributing a fictitious standpoint to the opponent. Three techniques are offered by Eemeren et al. (ibid.) to give a token on this violation: a. Emphatically putting forward the opposite standpoint. For example, if someone assures that "I personally believe the defense of our democracy is of great importance", by so claiming s/he suggests that the opponent thinks otherwise. Unless immediately declaring a positive support, the opponent will put her/himself at suspicion of not standing with democracy. b. Referring to a group which the opponent belongs to and links that group with the fictitious standpoint: (3.27) She says she thinks this research is useful, but as a business person she naturally sees it as a waste of money. In this example, Eemeren et al. (ibid.: 118) comment, the speaker tacitly alludes to what business people think about the matter, and
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what applies to the group applies to all individual members of the group as well. c. Using such expressions as "Nearly everyone thinks that…", "Educators are of the opinion that…", and "Everyone has been saying lately that…". In such case, it is not sated who really holds the standpoint being attacked; no reference is made to surveys, opinion polls, or any other document evidence that shows who actually is sticky to a certain standpoint. Whether by 1 or 2, Eemeren et al. (ibid.) certify, violating this rule results in committing the straw man fallacy. The focal point in misrepresenting a standpoint or attributing a fictitious standpoint is to weaken the opponent by attributing a standpoint that is easier to attack than the original one. Rule 4: A party may defend his standpoint only by advancing argumentation relating to that standpoint (the Relevance Rule). According to this rule, two criteria must be met by a critical discussion: defense proceeds via arguments only; those arguments must be crucially relevant to the standpoint being defended, Eemeren et al. (ibid.: 119) assure. Consequently, two variants yield from violating this rule: non-argumentation, and irrelevant argumentation. The first, they (ibid.: 120) go on, involves playing on the "emotions, sentiments or biases of the intended audience". This means that instead of advancing argumentation to support the standpoint at issue, recourse is made to the classical appeals pathos and ethos. Playing on people's emotions in argumentation embraces committing a pathetic fallacy. Pathetic fallacies, they (ibid.) highlight, can be manipulated in positive and negative facets. The former has to do with appealing to the
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feelings of security and loyalty; the latter with the feelings of fear, greed and shame. Here is an example: (3.28) When Mr. Carter talks about innocent women and children who have been victims of terrorism, he is playing unfairly on the sentiments of the members of the jury. Because in fact it is just as terrible a thing when these victims are men, whether they are ordinary men, police agents, or soldiers. As regards ethos, they (ibid.: 121) continue, nothing is inherently wrong or fallacious with employing it. This can be vigorously supported by exposing appeals to expert opinions in certain cases (Cf. 2.2.4 above). Nevertheless, ethos can be ill-employed to provide another type of fallacy: the ethical fallacy of abuse of authority (traditionally known as argumentum ad vercecundiam). The following is an example: (3.29) When someone suggests, without providing actual argumentation, that he or she possesses the required amount of expertise on the basis of being professor and proceeds to make statements about the dangers of nuclear energy, when in fact his field of expertise is Egyptology. Irrelevant argumentation, on the other hand, is one that defends a standpoint other than the one which has actually fired the difference of opinion, Eemeren et al. (ibid.: 120) assume. At this point, there appears a question which automatically jumps to our minds: How can we differentiate between irrelevant argumentation and the straw man fallacy, since both are concerned with a standpoint other than the one originally put forward? They (ibid.) pay heed to this point and their answer is that: in irrelevant argumentation, it is the protagonist per se who distorts her/his own standpoint unlike the straw man where it is the antagonist's role to distort the standpoint in the ways previously shown.
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Irrelevant argumentation embeds committing the fallacy traditionally known as ignoration elenchi or argumentation relevant only to a standpoint that is not the one at issue. Let's consider this example: (3.30) Amateur sports are being ruined by all the alcohol that is sold at sports canteens, because research shows that 85% of all sports canteens sell alcohol. At the outset, they (ibid.) clarify, the argument and the standpoint seem to be related, but in reality the argument (alcohol is sold in 85% of all sports canteens) does not support the standpoint that "amateur sports are being ruined by all alcohol that is sold at sports canteens". Rather, it supports that standpoint "It is easy to buy alcohol in sports canteens". Translated into relevance terms, the two show topical but not probative relevance (Cf. 2.3.2.2. above). Rule 5: A party may not falsely present something as a premise that has been left unexpressed by the other party or any premise that he himself has left implicit (the Unexpressed Premise Rule). It is well-known and almost agreed upon that in everyday communication there are a lot of premises that are left unexpressed which communicate various meanings only indirectly. This usual and normal implicitness should not be taken advantage of by a party (say the antagonist) and exaggerated to reflect other commitments than those which the protagonist is really held to. This rule can be violated by both the antagonist and the protagonist. With the former, it results in committing the fallacy of magnifying what has been left unexpressed. This is achieved when "adding an unexpressed premise that goes beyond which is warranted and attributing a premise to the protagonist that goes beyond the commitment created by the protagonist" (ibid.: 122). The following is a good example where Heather commits this fallacy:
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(3.31) Jerome: It could be that he doesn't like dogs very much, because he has a cat. Heather: So you think that everyone who has a cat by definition hates dogs? Jerome: No, I didn't say that. I only mean that there are a lot of cat owners who don't much like dogs. In this example, magnification or exaggeration of the unexpressed premise is manifested when Jerome says "It could be" whereas Heather states it to mean everyone who has a cat be definition hates dogs. Moreover, not liking dogs much is something, and hating them is something else. With the latter, the fallacy of denying an unexpressed premise is committed when refusing to accept commitment to an unexpressed premise indeed implied by the protagonist's defense. Eemeren et al. (ibid.: 123) cite this example: (3.32) I have nothing against homosexuals. I just think that the age of consent for homosexuals should not be lowered, because of the danger that young boys would be pushed into becoming homosexuals. The fallacy of "denying", here, is made clear via the word "danger", as they (ibid.) explain. It represents clear evidence that the speaker is actually intolerant with homosexuality; otherwise s/he would not have used this very word. This makes the unexpressed premise worded as follows: Homosexuality is something that should be prevented if at all possible. Rule 6: A party may not falsely present a premise as an accepted starting point nor deny a premise representing an accepted starting point (the Starting Point Rule).
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Eemeren et al. (ibid.: 128) notify that "the defense of a standpoint rests on some set of statements that are acceptable to both parties". This set, they (ibid.) proceed, consists of "some minimum of facts, beliefs, norms and value hierarchies". It is minimum because it is unreasonable that parties have full acceptance over almost everything, because then their argumentation will be spurious and pointless. This rule, which can be violated by both the antagonist and protagonist, as they (ibid.: 129) point out, is violated when a party falsely presents a premise as belonging to the common starting points or denies a premise that does in fact belong to the starting points. The antagonist, they (ibid.) continue, violates this rule if s/he questions an already agreed upon proposition, or one that the protagonist can rightly assume to be committed to by the antagonist on the basis of some verifiable knowledge. For example, an antagonist may all of a sudden in the middle of a discussion questions an already agreed upon proposition for opportunistic reasons: "But what is wrong with insects anyway?", where that very "wrong" has previously been established among the starting points. The protagonist, in turn, can employ more subtle ploys to violate this rule, as they (ibid.) remark: 1. S/he can act as if a certain proposition has been part of the set of already agreed upon starting points, whereas in fact it does not. One such strategy is the employment of presuppositions (i.e. an assumption tacitly assumed by the speaker). Eemeren et al. (ibid.: 129) exemplify presuppositions as follows: (3.33) I can't understand why Fred doesn't do something about that gambling addiction.
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The "masked" premise in this example is "Fred is addicted to gambling". What is more, presuppositions can be utilized in formulating questions to produce another type of fallacy called the fallacy of many questions (See Walton (1999) for more details on this fallacy): (3.34) Who have you quarreled with today? 2. Protagonists may use arguments which are synonymous with the standpoint being debated. By so acting, they commit the fallacy of circular reasoning (also called begging the question or petitio principii). They (ibid.: 130) give this example: (3.35) Radical discrimination is a punishable offense because it's against the law. At face value, the alleged circularity is not that clear. It is only when realizing that "a punishable offense" implies violating the law that this circularity becomes overt. This is because the argument used to defend the standpoint is itself the same standpoint but veiled. Rule 7: A party may not regard a standpoint as conclusively defended if the defense does not take place by means of an appropriate argumentation scheme that is correctly applied (the Argument Scheme Rule). This rule dictates using and applying an appropriate argument scheme for defending a standpoint. Violating this rule, thus, results from a protagonist's use of an inappropriate argument scheme or applying a scheme in an incorrect way. Eemeren et al. (ibid.: 131-2) list the following cases: 1. Argument from popular opinion (traditionally known as argumentum ad populum). Inappropriately applying it leads to committing the populist fallacy, where the opinion of some number of people is presented as the focal point on which a
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party's argument is centered. The argument implies the idea that the standpoint advanced is to be accepted due to the fact that so many people agree with it. The following is an example: (3.36) Hundreds of thousands of cheering readers, viewers, or listeners are no proof at all of the correctness of an idea, and it is pure demagoguery to use their opinion as an argument. 2. Causal arguments inappropriately appealed to. Here we have three variations: a. Confusing facts with value judgements. This produces the fallacy traditionally known as argumentum ad consequentiam, or argument from consequences. This fallacy moves on the following track: "It isn't true, because I don't want it to be true", or "It's true because I want it to be true". Here is an example provided by Eemeren et al. (ibid.: 131): (3.37) It can't be raining, because that would mean we'd have to cancel our picnic. b. Basing a cause-and-effect relation only on the fact that one thing preceded the other. This is referred to as the fallacy of post hoc ergo propter hoc ("after this, therefore, because of this"). They (ibid.: 132) cite the example where a coach suggests that the rise in ticket sale was due to his taking on the job: (3.38) I like the Milan team. I like the way they play, their courage, their drive to win. Since I came we have gone from 40 to 71 thousand season ticket holders. There must be a reason for this. c. Suggesting that a bad course of action will eventually occur if a certain position is held. This involves committing the slippery slope fallacy. The following example, cited in (ibid.), shows Gerrit
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Komrij's sketch of the consequences of government support of activities designed to protect women (but not homosexuals) from sexual violence: (3.39) Those who find sexual violence important only when it is aimed at a limited and arbitrary group like girls and women will end up, if their reasoning is carried to its logical conclusion, finding any form of violence acceptable as long as it is aimed at an enemy specially marked out for that purpose. 3. Generalizing on the evidence of too few observations. This yields the fallacy of hasty generalization (traditionally known as secundum quid). Let's have a look at the following example found in (ibid.): (3.40) After having spent our 1991 vacation in Cuba, we went there again in 1992, which shows that it's a great place for tourists. This example exhibits a hasty generalization. One tourist couple, who has twice visited a place in raw, is no proof whatsoever that such a place is great for tourists in general. 4. Comparing two (or more) things which are either incomparable or there might exist some special circumstances that invalidate the comparison. Acting as such gives the fallacy of false (or faulty) analogy. The following example is taken from Walton (1995: 60-1) as Eemeren et al. (ibid.) do not exemplify false analogy: (3.41) Suppose someone defended open textbook examinations with the following argument: "No one objects to the practice of a physician looking up a difficult case in medical books. Why, then, shouldn't students taking a difficult examination be permitted to use their textbook?
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The faulty analogy, Walton (ibid.) comments, is demonstrated by the very little similarity between the two cases, regardless of the act of looking inside a book for information. The fallacy resides in the difference between the purpose and context of the action in the two cases. Rule 8: In his argumentation a party may only use arguments that are logically valid or capable of being validated by making explicit one or more unexpressed premises (the Validity Rule). Violations of this rule, Eemeren et al. (2002: 132) emphasize, are considered the most important of all the ones discussed so far. Two ways are followed to violate this rule: 1. Faulty reasoning: Reasoning is still invalid even though everything which is unexpressed is made explicit. They (ibid.: 133) mention two possibilities: a. Affirming the consequent; and b. Denying the antecedent. Below are illustrative examples cited in (ibid.): (3.42) If you eat spoiled fish (antecedent) you get sick. (consequent) Ann is sick (Affirmation of the consequent). Therefore, Ann has eaten spoiled fish. (3.43) If you eat spoiled fish (antecedent) you get sick. (consequent) Ann hasn't eaten spoiled fish (Denial of the antecedent). Therefore, Ann is not sick. 2. Attributing a property of the whole to the component parts and vice versa. The former is called the fallacy of division, the latter the fallacy of composition. Eemeren et al. (ibid.) make it clear that these two types "involve treating the whole as a simple sum of the separate parts and assuming every property of the whole also applies
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to each of the component parts". What they mean is that what is true for the parts is not necessarily true in a similar vein for the whole. They give the following example of the manager of a school cafeteria: (3.44) We use real butter, real cream, and fresh lettuces, so our meals are always delicious. Here, the manager commits the fallacy of composition whereby the features of the parts have been shown to be necessarily the features of the whole (that is, meals) [For more details on this fallacy, see Govier, 2009]. On the other hand, they (ibid.: 134) exemplify the fallacy of division as follows: (3.45) The Cabinet is indecisive. Therefore: The Ministers are indecisive. What is wrong with this argument, they (ibid.) explain, is the fact that if the Cabinet is indecisive, this by no means indicates that its members (i.e. ministers) are indecisive as well. It could happen that each member is decisive per se, yet what each proposes differs from every other, as such the amalgam does not work. Rule 9: A failed defense of a standpoint must result in the party that put forward the standpoint retracting it and a conclusive defense in the other party retracting his doubt about the standpoint (the Closure Rule). This rule has to do with what occurs in the concluding stage of the critical discussion. Eemeren et al. (ibid.: 135) summarize the main point behind its violation in the following way. This rule has to do with the consequences of the argumentation advanced between the protagonist and antagonist. If the protagonist does not succeed to defend his standpoint and convince the antagonist with her/his own opinion, then s/he must give up that very standpoint. Unless so acting, the protagonist will commit the fallacy of refusing to retract a standpoint that has not been successfully
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defended. Likewise, if the antagonist has failed to successfully criticize the opponent's standpoint, s/he must retract the criticism. Otherwise, the fallacy of refusing to retract criticism of a standpoint that has been successfully defended is committed. They (ibid.) cite this example: (3.46) Well, if that's the case, then I can't think of any more objections. But I still don't agree with it. They (ibid.) highlight one further possible violation of this rule: attaching inflated consequences to the successful attack or defense. By this is meant that the successful defense of a standpoint, by a protagonist, does not entail the truthfulness of that very standpoint; it only pertains to the fact that the antagonist must retract her/his position (and that is why law cannot always judge fairly). Otherwise, the protagonist will be said to commit the fallacy of concluding that a standpoint is true because it has been defended successfully. In a similar vein, the failure of a defense does not guarantee the falsehood of the standpoint or the truthfulness of the opposite counterpart. Otherwise, the antagonist will commit the fallacy of concluding that a standpoint is true because the opposite has not been successfully defended (argumentum ad ignorantiam). They (ibid.: 136) provide the following illustrative example: (3.47) Mother: You must never hit children, because then they lose trust in society and ten years later they'll be hitting everybody. Father: It has not in any way been proved that hitting children leads to violence later. So a slap once in a while for a good reason can't do any harm. Rule 10: A party must not use formulations that are insufficiently clear or confusingly ambiguous and he must interpret the other party's formulations as carefully and accurately as possible (the Usage Rule).
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As this text of dictates, this rule has to do with the way language, at the syntactic and semantic levels, should be used in a critical discussion. Violating this rule, Eemeren et al. (ibid.) confirm, is very likely to occur at any stage of the discussion and by whatever party. Whenever a party uses unclear or ambiguous language to move the discussion forward to her/his own favor, the fallacy of unclarity or the fallacy of ambiguity comes to the scene. Let's consider each of these separately. Two levels of structural unclarity are mentioned in (ibid.: 137-8): textual and sentential. The former is the offspring of "illogical order, lack of coherence, obscure structure, and so on". The latter, in turn, exhibits four main types: 1. Implicitness. 2. Indefiniteness. 3. Unfamiliarity, and 4. Vagueness. These can be better explained and understood by exemplification, which Eemeren et al. (ibid.) have already done: Suppose someone says: (3.48) Charles is kleptomaniac. The following are very possible questions raised by the listener for clarification: 1. Are you warning me or just informing me? 2. Charles? Charles who? 3. A kleptomaniac? What's that? 4. What do you mean he's a kleptomaniac? Do you mean once upon a time he stole something, or do you mean he makes a habit of stealing things? They (ibid.) relate each of these questions to one of the manifestations of unclarity at the sentence level. The first has to do with implicitness: the listener is skeptic about the illocutionary force of the issued speech act
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owing to the point that the context allows more than one possibility. The second is concerned with indefiniteness: it inquires about the propositional content. In other words, it is the reference which is indefinite, that is unclear, in this question. The third, in turn, also questions the propositional content "but this time it is the predication". That is, it is the meaning of the word "kleptomaniac" which is at stake. And this is because of the unfamiliarity of the word used. Finally, the fourth has to do with vagueness. This is brought to the front by raising points about the criteria of using the term "kleptomaniac". This obviously pinpoints that the listener knows very well the meaning of that word; it is the criteria which are vague: How often must someone steal to earn the label of kleptomaniac? Ambiguity, as well-known, refers to the case whereby words and phrases have more than one meaning. Eemeren et al. (ibid.: 138-9) boil down this concept into the following reflections: First: Ambiguous statements, e.g. (3.49) That is Herman's portrait. This statement can be interpreted in three different ways: - The portrait was painted by Herman. - The portrait is owned by Herman; and - Herman is the subject of the portrait. Second: Ambiguous questions, e.g. (3.50) Who is Tony? This question can have at least five possible interpretations: 1. Which of you three is Tony? 2. Who in this picture is Tony? 3. Who is the actor that plays Tony? 4. What can you tell me about Tony?
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5. Why the hell should we listen to Tony? Third: Ambiguity of Reference, e.g. (3.51) Carla gave Sandra the mail; it was her last day here. The reference of 'her' is ambiguous because we cannot be sure whom 'her' refers to: Carla or Sandra. After navigating through the rules for a critical discussion and the fallacies resulting from their violations, the floor is handed over now to the researcher's remarks in this regard. It has been noticed that: 1. There is a close link between many pragma-dialectical fallacies and all the structures of inference (i.e. ASs) previously mentioned (Cf. 2.2 above). Let's uncover this relationship where what is to the left of the arrow is the AS and to the right the associated fallacy; the arrow means "can result in": 1. Argument from analogy (Cf. 2.2.1 above)
Faulty analogy
(Violating Rule 7). 2. Argument from an established rule (Cf. 2.2.2 above)
All the
aforementioned fallacies. 3. Argument from sign (Cf. 2.2.3 above)
Generalizing from too
few observations (Violating Rule 7). 4. Argument from position to know (Cf. 2.2.4 above)
Abuse of
authority (Violating Rule 4). 5. Argument from verbal classification (Cf. 2.2.5 above)
Fallacy
of division and/or fallacy of composition (Violating Rule 8). 6. Argument from commitment (Cf. 2.2.6 above)
Magnifying
what has been left unexpressed (Violating Rule 5). 7. Practical reasoning (Cf. 2.2.7 above)
Faulty Reasoning
(Violating Rule 8). 8. Ad hominem argument (Cf. 2.2.8 above) (Violating Rule 1).
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Ad hominem
9. Slippery slope argument (Cf. 2.2.9 above)
Slippery slope
(Violating Rule 7). 10. Argument from popular opinion (Cf. 2.2.10 above)
Populist
fallacy (Violating Rule 7). 11. Correlation to cause argument (Cf. 2.2.11 above)
Various
causal fallacies (Violating Rule 7). Two different questions can be raised about this remark: a. Does this link mean that the aforementioned ASs are inherently fallacious? If so, then why make such a move and dance around it, why have we discussed each separately?; and b. There are some arguments (e.g. appeal to pity) which are very probable to occur in a trial (or a critical discussion), yet they have not been enlisted with the most commonly ASs used in law, why? Interestingly, these two questions share the same deep structure of answering. Walton's (2002) legal ASs are not intrinsically fallacious because it is quite unreasonable to develop fallacies and nothing else in the course of a trial. All in all, in trials we do not expect to confront naïve opponents accepting and agreeing with everything, on the axiomatic basis that both parties stand on the same ground of laws employed to achieve one's aims. What might be fallacious is the employment which the ASs depict in a more or less subtle manner depending on how skilful each party is, which is individually variant. The more subtle a party is, the more probable fallacies occur. By the same token, some quite expectable arguments (like appeal to pity) have not been included within the set of legal ASs due to the fact that these are inherently fallacious, hence their presentation will distort the real structure and make it fallacious from A to Z, which is quite unreasonable as well.
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2. Rules for a critical discussion are very much like felicity conditions for a speech act. If a rule is appropriately abided by, the critical discussion will come up with resolving the difference of opinion quite smoothly. Likewise, if the set of felicity conditions is kept to, the result will be a quite clear issued act. 3. The employment of fallacies could be legitimate in legal argumentation! This somehow odd opinion is inspired by violating Rule 9 previously elucidated. It has been literally stated that "the successful defense of a standpoint, by a protagonist, does not entail the truthfulness of that very standpoint; it only pertains to the fact that the antagonist must retract her/his position…". This means that in the legal field truthfulness is the second, not to say the last, thing panted for. What is dominant instead is winning the trial to one's own favor (i.e. checkmating the opponent) regardless of whether that one does truthfully have a right or not (survival is for the most subtle!!). When the case is so, then end justifies means, the well-known Machiavellian principle. Interestingly, this opinion has found its warrant in what Ulrich (1992: 351) assumes: "the fallacy may have a legitimate role in argument". [See Appendix (1) for a breakdown table of the rules, their violations, the resulting fallacies and by what party at which stage of the critical discussion as designed by Eemeren and Grootendorst (1992a: 212-17). Besides, for more details on fallacies thus analyzed, see Eemeren et al. (2009)] After reviewing the components of SM that are crucially relevant to the aims of this study, it is necessary now to show the way through which such elements (in addition to those previously mentioned in Chapter Two, that is, legal argumentation) are mixed together to yield a developed model utilized as an analytic tool for examining civil and criminal court trials – the data under investigation. This is the main concern of the following chapter which hinges upon hyper-linking the
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aforementioned various components to produce an eclectic model that serves the aims of this work.
CHAPTER FOUR MODEL OF ANALYSIS 4.1 Background The model intended to be developed is eclectic and interwoven out of the miscellaneous concepts reviewed in the two previous chapters. This model will be the basic apparatus for analyzing the data of this work. However, before embarking on binding together the various components of this model, it is necessary to bring to the forefront the following points: 1. It has been established before that SM has two main valences, reasonableness and effectiveness (Cf. 3.1 above), and it has also been mentioned that reasonableness is modeled by the ten rules which represent the code of reasonable conduct for discussants in a critical discussion (Cf. 3.2.1 above). Since a trial has been shown to be a critical discussion per se, then reasonableness need not be re-modeled in this study. It will be represented by the same ten rules proposed by the original theory (i.e. the standard pragma-dialectical theory of Eemeren and Grootendorst (1984)).What remains thus is "effectiveness" (that is, the rhetorical part represented by the three aspects) which will be remodeled in a way that accords with the aims and the data of this work. This will be the main concern of the first division of the model (i.e. 4.2 below). 2. Owing to the fact that analyzing SM is crucially dependent on the strategic function of the move in question, as made clear in 3.3 above, then re-modeling the parameters of SM (as exploited in trials) becomes a must. This is what 4.3 below is devoted to.
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3.
After re-modeling those two major facets (that is to say, the aspects
and parameters), they will be distributed over the various stages of a trial, the discussion of which is the main concern of 4.4 below.
4.2 Re-Modeling Aspects of SM As just mentioned above, each of the three aspects of SM will be re-modeled so that the data under investigation will be accurately analyzed. Provided that SM is context-specific, the three aspects, as proposed by the original theory of Eemeren and Houtlosser (2002), cannot be adopted as they are. They should be re-modeled in what serves the activity type selected for analysis in this work – court proceedings mainly symbolized by civil and criminal court trials. What is done below is hyper-linking each of the aspects with the relevant concepts discussed previously.
4.2.1 Topical Potential This aspect involves tailoring the materials at hand to what optimally suits a specific case. How can this be engendered in court trials? One of the stages of a trial, as Mazzi (2007: 25) lists, is Establishing Facts of the Case, where "the circumstances which gave rise to the dispute are described in detail" (See 4.4 below for stages of a trial). Previously, Mathewson (1998: 233) has called such establishment a "narrative" (which is also referred to as narration or narratio) whose chief purpose is the presentation of the facts of a case. Atias (2007: 23) has some influential opinion in this regard. He emphasizes the point that narration "expresses a possible picture of reality including actions, deeds, behaviours, motives, consequences, situations, and chains of events, attributed to specific persons in a specific framework of time and place".
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Additionally, he (ibid.) proceeds, "each institutionalized speaker stresses specific details which seem significant from his point of view and presents them as the crucial aspects of the occurrence". By so purporting, Atias (ibid.) agrees with Mathewson (1998: 239) who confirms that the description of events (i.e. narrative) "must be tailored to the law against which they will be measured". At this point, Nettel and Roque (2012: 65) view the salient objective of narratio as "not simply to inform the judge, but rather to lead him to agree with us… [as such] it is not an objective presentation but rather one with a persuasive aim". Whether establishing, describing, presenting or whatever the case might be, the question is still the same: How can this narration be remodeled so that it can lend itself to a systematic analysis? ASs (also referred to as structures of inference) are the locus wherein the answer resides. ASs, as introduced before (Cf.2.2 above), have been ascribed the role of convincing our audience by means of leading them to make certain inferences. Leading someone to make some inferences is achieved by designing (or tailoring) our arguments (that is, the facts being presented about a particular case) in a way that serves a particular case. It follows that what is established in the ASs goes along with what has been proposed by: 1. Mathewson (1998: 239) who refers to tailoring the facts (or arguments) to law. 2. Atias (2007: 23) who pertains to the institutionalized persons who stress the details which seem significant from their own point of view. In other words, they design the facts; and 3. Nettel and Roque (2012: 65) who speak of the persuasive aim of narration. Accordingly, up to this point, topical potential, the first rhetorical aspect of SM, is confidently re-modeled by the aforementioned ASs in
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the data under investigation. However, it is necessary to bring to notice that it is Walton's (2002) re-classified legal ASs, as shown in Figure (1) above, that will represent this first aspect. Yet the eleven ASs will not be listed in the model diagram to avoid redundancy and confusion. Throughout the two previous chapters, ASs have been shown to interconnect with two other notions: 1. Reasoning: It has been shown before that ASs are interrelated with the process of reasoning which is context-sensitive. This means that employing ASs entails employing the various types of reasoning reviewed before (Cf.2.3.1.1 above). 2. Fallacies: The relationship between fallacies and ASs has also been uncovered before, so their occurrence is quite probable. Nevertheless, such occurrence is taken to be optional in the developed model. This can be justified by what has been claimed before that it is very improbable to have arguers who always violate the rules of reasonableness to produce fallacies and nothing else. To conclude, then, topical potential is re-modeled, by this study, as composing of ASs, reasoning, and fallacies (whose employment is optional).
4.2.2 Audience Demand As discussed before, this aspect has to do with adjusting one's argumentative moves to what is publicly justified, by the relevant audience, as worthy of being shared (Cf. 3.2.2.2 above). It has also been mentioned, there, that the primary audience in the Anglo-American system is bipartite: judge and/or jury. So, how can arguers (that is, the two conflicting parties) systematically adjust their argumentative moves to such a heterogeneous audience? As a critical discussion, attuning to audience demand in a trial can, fortunately, be analyzed by adopting what Eemeren and Houtlosser (2009a: 6) propose in this regard. They assure
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that the systematic examination of audience demand in the various stages of a critical discussion starts from the unique distribution of speech acts as introduced by the standard pragma-dialectical theory (Cf. 2.3.2.1 above). This distribution is taken as a point of departure for examining the "preparatory conditions for performing the types of speech acts by which the various argumentative moves are made that play a constructive part in resolving a difference of opinion on the merits" (ibid.). Such conditions, they (ibid.) continue, adduce the requirements which must be fulfilled "with regard to the addressee for the correct performance of these speech acts, so that audience adaptation can be realized in one important respect by indicating their fulfillment". Examining the preparatory conditions for the admissible speech acts might be thought of as elusive at first glance. However, the case is not that perplexed. It has been mentioned before that Eemeren and Grootendorst (2004: 163-5) have previously listed ways (viz. six) via which provisions laid down in the ideal model of a critical discussion can be violated (Cf. 3.6.1 above, in particular pp. 119-20). Those six ways are themselves the preparatory conditions against which audience demand is systematically analyzed. To conclude, then, audience demand is re-modeled, by this study, as being composed of the six rules offered by Eemeren and Grootendorst (2004).
4.2.3 Presentational Devices The complexity and broadness of this self-defining subject have been discussed beforehand in detail (Cf. 3.2.2.3 above). These two features become quite evident when attempting to select the presentational (also referred to as stylistic) devices that will be utilized in analyzing trials, which are thought to be a very rich source on which such devices dwell.
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Actually, Eemeren and Houtlosser (2002) have been helpful, to some extent, in modeling those devices. They (ibid.: 137) assure that out of the myriad of expressions "that can be used, par excellence, as presentational devices are the various "figures" (of speech and thought) known from classical (and dialectical) rhetoric". This means that arguers "will exploit the Gricean maxims of Manner in a specific and deliberate way in the discourse". It is this indication to the maxim of manner which facilitates re-modeling the third rhetorical aspect of SM in what matches the data of the work. To clarify more, figures of speech work at many levels three of which have been formerly mentioned (Cf. 3.2.2.3 above). Those which breathe relevance to the present study are the pragmatic ones because they are characterized by, as Levinson (1983: 110) observes, flouting one or more of the Gricean maxims. For Eemeren and Houtlosser (ibid.), they consider the manner maxim is a yardstick against which the various (pragmatic) figures of speech can be identified. According to McQuarrie and Mick (1996: 426), the pragmatic figures of speech (or tropes, as they call them) are bipartite, as shown in Table (5) below: Table (5) Taxonomy of Tropes (Following McQuarrie and Mick, 1996) Tropes Substitution
Destabilization
1. Hyperbole
1. Metaphor
2. Ellipsis
2. Pun
3. Epanorthosis
3. Irony
Rhetorical Question 4. Metonymy
4. Paradox
Each of these two divisions is briefly discussed below:
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4.2.3.1 Substitution Tropes These tropes, as McQuarrie and Mick (ibid.: 432) explain, choose "an expression that requires an adjustment by the message recipient in order to grasp the intended meaning". Such an adjustment, they (ibid.) go on, move among four dimensions: exaggerated/ understated claims (e.g. hyperbole), absence/ plentitude of expression elements (e.g. ellipsis), strong/ weak assertive force (e.g. rhetorical question), and part/ whole relations (e.g. metonymy). Hyperbole, as Morn (2004) defines it, is "a form of extremity, an exaggeration that rather magnifies or minimizes some real state of affairs". The magnified aspect of hyperbole is referred to as overstatement by Cruse (2006: 165), who defines it as the deliberate positive or negative exaggeration to increase impact or to attract attention, as in: (4.1) The traffic was moving at a snail's pace. Besides, Cruse (ibid.: 186) defines the minimized aspect of hyperbole, that is, understatement, as a statement of the intensity of something characterized by being less than its natural state. The illustrative example, however, is provided by Birner and Ward (2006: 45), in which a man was known to have broken up all the furniture, yet described as follows: (4.2) He was a little bit intoxicated. [For more details on hyperbole, see Claridge, 2011: Ch. 7] Ellipsis has been extensively discussed before, so there is no need to re-illustrate it (See 3.4.3 above). Epanorthosis, in turn, has been earlier explicated by McQuarrie and Mick (1996: 432-3) as the inverse of a rhetorical question (which has already been reviewed in 3.4.2 above). In this figure of speech, they (ibid.) continue, an arguer "makes an assertion
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straight out with the purpose of rendering it uncertain or dubitable". They (ibid.) cite the following example: (4.3) Chances are you'll buy a Ranger for its value, economy and quality. Yeah, right. Metonymy, the last substitution figure of speech, refers to, as Yule (2006: 108, 245) defines it, "a word used in place of another with which it is closely connected in everyday experience (e.g. He drank the whole bottle (=liquid))". Added to that, Yule (ibid.) shows the various relations through which metonymy is manifested: container-content (the example just
cited),
whole-part
(car/wheel),
or
representative-symbol
(king/crown). [For more details on metonymy, see Nerlich, 2009]
4.2.3.2 Destabilization Tropes These tropes are mainly concerned with selecting "an expression such that the initial context renders its meaning indeterminate" (McQuarrie and Mick, 1996: 433). As Table (5) above shows, these tropes are sub-divided into four strategies. For the sake of simplicity and systematicness, McQuarrie and Mick (ibid.) discuss these four types with reference to two types of relationships: similarity and opposition. Metaphor and pun are the two pragmatic strategies which hinge upon a relationship of similarity (ibid.). On one hand, metaphor is a reputable linguistic phenomenon that has been imbued with research. It pertains to the case where "a word or phrase is used to describe something it does not literally denote, e.g. This journal is a gem" (McGlone, 2007: 2) [For more details on metaphor, see Arseneault (2009), Gibbs (2009), Steen (2009), and Coulson (2009)]. Pun, on the other hand, is defined by Bussmann (1996: 968) is a word-play that involves repletion via "the coupling of words that sound similar but which are very different semantically and etymologically, e.g. Is life worth living? That depends on the liver".
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In this example, pun is symbolized by the word "liver" which has two unrelated meanings: a human organ, or someone who does the act of living. It is necessary to pinpoint that the salient feature of this pragmatic strategy is the workability of the two unrelated meanings, at the same time, to yield different interpretations. The relation of opposition, by contrast, covers two pragmatic strategies: irony and paradox, as McQuarrie and Mick (ibid.) assert. Xiang (2008: 5) defines irony as "the discordance between what is said and what is literally believed to be true, as in "What a sunny day" during a storm" (For more details on irony, see Attardo (2009), and Boutonnet (2009)). The last destabilization trope is paradox: "a statement is made that cannot be true as given but that can nonetheless be made true by reinterpretation (McQuarrie and Mick, ibid.). They provide the following example: (4.4) This picture was taken by someone who didn't bring a camera. This statement, they (ibid.) comment, contradicts itself because taking a photo, by definition, requires a camera. It can only be made meaningful by being reinterpreted as follows: the picture was taken by buying a disposable camera on the spot. There remains one last important remark to pin down concerning the two major sub-types of tropes. McQuarrie and Mick (ibid.) view the difference between the substitution tropes and the destabilization peers by bringing to notice that in the former "one says something other than what is meant and relies on the recipient to make the necessary correction". In the latter, on the other hand, "one means more than is said and relies on the recipient to develop the implications". To conclude, then, presentational devices are re-modeled, by this study, as composing of the eight figures offered by McQuarrie and Mick (1996).
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Now that the first important facet valence of SM, that is the three aspects, has been re-modeled; the floor is handed over to re-modeling the second complementary valence – parameters.
4.3 Re-Modeling Parameters of SM The four parameters which are crucial for the systematic analysis of the strategic functions of maneuvers, as reviewed in 3.3 above, have to be re-modeled in accordance with the data of the present work. The reason behind this re-modeling will become obvious in the course of reconfiguring them.
4.3.1 The First Parameter As adduced before, this parameter has to do with the results of maneuvering which are arrived at, as thought by Eemeren and Houtlosser (2009b), via the concept of analytic overview. This analytic overview, as also indicated there, ensues from reconstructing a piece of discourse as a critical discussion. As regards the data under analysis, they are themselves a critical discussion; as such they need not be reconstructed again to identify the fundamental components of their analytic overview. Nevertheless, this does not mean that such a parameter will be neglected altogether; every argumentation must pant for achieving certain result(s). Re-modeling the first parameter, thus, will be done by another means: invoking what Eemeren and Grootendorst (1992a: 96-102) have earlier speculated. They (ibid.: 96) have indicated that 'argumentation schemes' is the arena within which analyzing argumentation neatly moves. According to them, the results of each argumentation can be characterized by the AS that is employed because it (that is, AS) depicts the relation between what is stated in the argumentation and what is stated in the standpoint. Furthermore, they (ibid.: 98) stress, "each argumentation scheme calls, as
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it were, for its own set of critical reactions" which are passed by through an arguer's clarity as to the AS employed (Italics mine). Crudely put, ASs pave the way for an analyst to check on the possible results that an argumentation can achieve when employing them. It follows that the first parameter is re-modeled by the ASs discussed before (Cf. 2.2 above). But it has been exhibited in re-modeling topical potential that ASs are interrelated with reasoning and fallacies (which are optional); thus, the first parameter, is to be re-modeled by the three concepts as well: ASs, reasoning and fallacies (which are also optional for the same rationale mentioned before). It is necessary to point out that since there are two components in the model which are achieved by the same strategies, as in topical potential and the first parameter just mentioned, it is evident then that analyzing the first component (i.e. topical potential) will automatically embrace satisfying the other component (i.e. the first parameter). It follows that this parameter will not be analyzed in the data in order to avoid redundancy owing to the fact that analyzing topical potential in any stage will be itself analyzing the first parameter without any modification be it addition or deletion.
4.3.2 The Second and Fourth Parameters These two non-successive parameters will be discussed in tandem due to their interrelatedness as illustrated below. First, the second parameter (which is concerned with the routes of achieving the results) is based, in the original theory, on the notion of "dialectical profile" already presented and discussed. The main reason for re-modeling this notion is the view proposed by Mohammed (2009) formerly mentioned: using dialectical profiles bridge the gap between the ideal model of a critical discussion and less than ideal argumentative practices.
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Moving onward from this opinion, with keeping an eye on the fact that a trial is itself a critical discussion as established before, it becomes crystal clear that there is no gap to be bridged between a trial and a critical discussion as the two are, in fact, facets of the same coin. Again, this should not lead to over-hastily think that this notion has no role to play in trials; it does have a fundamental criterion which is taken as the basis of re-modeling the second parameter – analytic relevance. Dialectical profiles hinge upon the "analytically relevant" moves in a specific stage of a critical discussion. This means that it is the notion of relevance which re-models the second parameter in the domain of trials. The concept of dialectical relevance which has been extensively discussed in 2.3.2.1 above is the one which is to be adopted for the sake of re-modeling. Accordingly, relevance of the various moves in a trial will be analyzed from two angles (as the concept dictates): 1. Type; and 2. Approach. As regards the type, only the topical and probative sub-types will be adopted (Cf. 2.3.2.2. above). This is done on the basis of the significance of the types concerned. That is, topical and probative types have to do, as Walton (2006: 271) assures, with (ir)relevance of cases; the probative type is more important, as he (ibid.) believes, than the topical one in cases where irrelevance is a problem in argumentation. The approach, on the other hand, is descriptive, as stressed earlier, which utilizes the notion of relevance cube (whereby relevance is tripartite: domain, component, and relational) discussed before as well. It seems necessary to notify that the notion of dialectical relevance (with its types and cube) will not only be made use of in re-modeling the second parameter; but also it will be used to symbolize violating Rule 4
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(i.e. the Relevance Rule) reviewed in advance. This is done for the sake of consistently analyzing this concept no matter how it is employed. The fourth parameter, which is interlinked with the second parameter just re-modeled, has to do with the arguers' commitments. This interconnection is supported by quoting what Eemeren and Houtlosser (2009b: 12) confirm: When taken together, the commitments acquired by the parties involved in the discourse determine the "argumentative situation" the arguers are in at a specific juncture in the dialectical profile portraying the relevant part of the discussion. (Underlining mine) Such an interrelation means that those commitments are part and parcel of the dialectical profile; thus, it is evident and axiomatic that all the relevant moves arguers make in their argumentation reflect the commitments they have been developing in the course of the argumentation process. In other words, in the legal field where relevance has a distinctive identity of its own, the commitments which the two conflicting parties exhibit, are merely mirroring the relevant moves which arguers make. This turns out to be very clear when recalling the third division of the relevance cube – relational. Relational relevance, as aforementioned, is tripartite: it is triggered by reacting to, supporting or anticipating some standpoint; these three are issued on the basis of the commitments already agreed upon in the discussion. Accordingly, in trials, the set of commitments which arguers agree upon is considered to be analyzed at the same time of analyzing the second parameter; analyzing the dialectical profile is itself analyzing arguers' commitments.
4.3.3 The Third Parameter This parameter, as explained before, has to do with the communicative activity type in which SM is exploited (Cf. 3.3 above). It
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has also been made clear that adjudication is the genre of the communicative activity with court proceedings as its communicative activity type. It is necessary to declare that this is the only component in this eclectic model that is adopted as originally proposed by Eemeren and Houtlosser (2002: 138). They (ibid.) have remarked that rules for a critical discussion are themselves the rules which the judge (and/or jury) depend(s) on for the sake of resolving the difference of opinion filed to the court. The rationale behind this match is ready to be posed: a trial and a critical discussion are facets of the same coin, so there is no oddity in the resemblance obtained between the two. To conclude, then, the ten rules of reasonableness are themselves the constraints imposed by the communicative activity types of court proceedings (represented by civil and criminal court trials). As with the first parameter previously mentioned, this parameter will not be analyzed twice as it is instantiated by the same ten rules of reasonableness. It would be quite unacceptable to have a rule violated at the level of reasonableness, whereas the same rule is abided by at the level of parameters. In other words, analyzing reasonableness at any stage involves satisfying the third parameter at the same time. What Eemeren and Houtlosser (ibid.: 132) mention about these parameters paves the way for moving on to the next step in this model: "the four parameters we discussed can be used to analyze the strategic function the particular mode of maneuvering referred to may have in the case of maneuvering concerned" (Italics mine). In line with these words, the various modes of SM discussed before will become clear after analyzing the foregoing parameters (Cf. 3.4 above). That is, modes of SM will occupy the position which follows that of the parameters in the eclectic model.
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To put it more precisely, analyzing both the aspects and parameters of SM, in accordance with the eclectic model being developed, will yield the various modes of SM reviewed before. The reason why those modes are placed here is that SM can only be systematically analyzed after taking these two parts on the same par; then and only then a further step can be made ahead as to what mode both the aspects and the parameters have produced.
4.4 Stages of a Trial A trial is a clear enough legal means via which disputes can be resolved. Generally speaking, a trial, as Walton (2002: 9) describes it, has two conflicting sides, each makes their own arguments with the sole aim of persuading the trier – the person(s) who are in charge of passing the final judgement on a particular case, regardless of whether it is civil or criminal. In the Anglo-American system however, he (ibid.) assures, the trier will be a judge and/or a jury. To describe how a trial actually proceeds, Walton's (ibid.: 11) words are quoted below: In many Anglo-American jurisdictions, the plaintiff's lawyer has the choice of trying the claim before a judge or a jury. While the judge presides over the proceedings, both sides will present their evidence after making "opening statements" in which they outline their side of the case, and show how they will prove their contention. Much if not all the evidence will be presented in the form of testimony by witnesses… who are expert witnesses. They may be physicians, ballistics, expert scientists, or any individual who has specialized knowledge or skills in various domains of expertise. (It is necessary to point out that the terminology used here, such as plaintiff and defendant, is adopted from Walton (2002) due to its concern with the Anglo-American legal system from which the corpus of this work is taken)
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To put it in another way, a trial is "a rational process meant to seek the truth in a legal controversy" (Walton, 2004: 267). Being a process, a trial should have certain stages whose fulfillment actualizes the trial proper. What are these stages? As a matter of fact, there have been several attempts to identify the stages a trial passes through (See Walton (2002) and Toulmin (2003), for example). However, the attempt which is to be adopted and presented in this work is Bhatia's 1993 generic structure of judicial arguments (Cited in Mazzi, 2007). Bhatia, as cited in Mazzi (ibid.: 25), devises a four-stage structure which all legal cases follow: 1. Identifying the Case: This is an identifying stage whereby all the information important for a case identity is given (e.g. title of the case, names of the conflicting parties, types of cases, etc.). 2. Establishing Facts of the Case: This is the stage where the dispute is described in detail. 3. Arguing the Case: This is the most important stage of the structure, as Mazzi (ibid.) emphasizes. It is sub-divided into three sub-stages: a. Stating History of the Case: in which the judge pages through the history of a case with regard to the proceedings that preceded the judge's current role. b. Presenting Arguments: whereby the judge clarifies her/his line of argument on the basis of including relevant provisions and precedents into account; and c. Deriving Ratio Decidendi: in which the judge finds out the legal rule which suits the case. 3. Pronouncing Judgement: This is the final stage where the dispute is settled to the favour of one of the conflicting parties.
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Bhatia, as denoted in Mazzi (ibid.), characterizes this generic structure by some flexibility, because "some cases may have a very brief realization of one or more moves [i.e. stages], while others very detailed ones". Moreover, Bhatia continues, the three sub-moves of the third stage are not all passed through. In fact, non-appeal cases are typically devoid of stating the history of the case, and judges may sometimes decide not to lay down any particular ratio decidendi. Provided that a trial is a critical discussion, it is now possible to equate between the four-stage critical discussion of Eemeren and Grootendorst (1984) and the four-stage structure of Bhatia 1993 to yield the final structure of trial as adopted by this work: 1. The first stage in Bhatia's model is of no special interest to this study. This is justified by the fact that this stage is mainly concerned with providing routine information whereby SM has no role to play. Thus, this stage will be excluded from the eclectic model developed by the present study. Besides, the flexibility proposed by Bhatia himself helps the work to do so in order to achieve its aims as clearly and simply as possible. 2. The second stage in Bhatia's model is that where the difference of opinion is crystallized, that is, it is equal to the confrontation stage in Eemeren and Grootendorst's critical discussion. This means that "Establishing Facts of the Case" is the first stage in a trial in this work. 3. Bhatia's third stage is equal to Eemeren and Grootendorst's argumentation stage (and they almost hold the same title). The only difference is that the latter's model does not have the sub-categorization presented by the former. However, the flexibility of Bhatia's model allows the work to dispense with the first and last sub-divisions on the basis of what Bhatia himself remarks with regard to non-appeal cases and the presentation of ratio decindendi (See above).
Additionally, the
routine nature of these two sub-divisions (which involves retrieving the
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history and finding a rule whereby SM has no role to play) further justifies the possibility of dispensing with those categories. It follows that the second stage in a trial is that which involves presenting relevant arguments, i.e. "Arguing the Case" is the second stage of a trial in this study. 4. The fourth stage in Bhatia's model is equal to the concluding stage in Eemeren and Grootendorst's critical discussion. Both of these stages have to do with how the dispute is settled, that is to say, to whose advantage the conflict is settled, the plaintiff's or defendant's. Accordingly, "Pronouncing Judgement" is the third, and last, stage in a trial as adopted by this research. It might be wondered here: What about the opening stage in Eemeren and Grootendorst's critical discussion, it has neither been equated, nor has it been even mentioned? The opening stage has not been chosen or commented on owing to the ability to proceed arguing without explicitly passing through it. So, there is no need to mention a stage which can complicate the task of identifying the stages of a trial while having nothing significant to add to such identification. To conclude, now, a trial in this study (whether civil or criminal) consists of three stages: establishing facts of the case, arguing the case, and pronouncing judgement. Identifying this tripartite trial-structure entails agreeing with what has been already proposed by Toulmin (2003). He (ibid.:16) recognizes three broad stages common to all law-cases – civil, criminal or whatever: an initial stage, a subsequent stage, and a final stage. For more clarification, the model discussed above (which will be used for analyzing the data of this work later on) is schematically introduced in Figure (4) below, where each arrow ( ‘by means of’.
175
) is to be read as
176
According to the Figure above, a trial consists of three stages (establishing facts of the case, arguing the case, and pronouncing judgement), the first two of which employ SM as mentioned formerly. In each of these two stages, SM is analyzed on the basis of three levels: the first is that of reasonableness and effectiveness. The former is to be analyzed by means of the ten rules of reasonableness; the latter, in turn, by means of three aspects: topical potential, audience demand, and presentational devices. Topical potential is analyzed by means of three strategies: argumentation schemes, reasoning, and optional fallacies. Audience demand is analyzed by means of the six rules that work as preparatory conditions. Finally, presentational devices are to be analyzed by means of the eight figures of speech discussed earlier. After dealing with SM as such, analyzing the various parameters will hold the floor. That is, the second level, i.e. that of parameters, comes to the scene now. As aforementioned, only one parameter will be analyzed – the second parameter.That parameter is analyzed by means of the notion of dialectical relevance which is to be analyzed on the basis of the type (that is, topical and probative) and approach (that is, relevance cube) which involves domain, component, and relational relevance. When the analysis of both the aspects and the parameters is complete, the mode of SM, which configures the third level, will show up. So, identifying the mode of SM will be the last component in this eclectic model. The third level of analysis, that is, the mode of SM, posits an important point that will be very obvious when analyzing the data under scrutiny. According to this study, there are two types of modes: conventional and non-conventional. The former refers to those modes which are per se the same AS(s) analyzed in the first level (i.e. the first 177
strategy which realizes topical potential in the domain of effectiveness as indicated in the model). They are termed conventional because they add nothing new to the SM which is made in a specific move. This has already been alluded to by Eemeren and Houtlosser. The latter, in turn, has to do with the other four mentioned previously in Chapter Three, viz. persuasive definition, rhetorical questions, praeteritio, and dissociation. They are referred to as non-conventional because they do not abide by the AS(s) detected in the first level; rather, they are built up out of separate strategies of their own which give them a salient identity that adds some special tint to the maneuver. The question which raises itself now: On what basis can we consider a mode as the one which a certain maneuver yields? That is, how can we prefer the non-conventional mode to the conventional peer in case both are present? The framework within which this problem can be justified and solved is that of Optimality Theory, whose identity, utility, and application are the core of the following sub-section.
4.5 Optimality Theory Since its launch by the hands of Prince and Smolensky 1991, Optimality Theory (henceforth, OT) has attracted the attention of different linguistic disciplines, most notably phonology, syntax, and semantics (McCarthy, 2003: 210; 2007: 1). Kager (2004: xi) summarizes the central idea of OT in that it is built on the interaction of language-specific violable constraints that gives rise to 'optimal' surface forms. A surface form is regarded optimal if it minimally violates higher ranked constraints. What characterizes these constraints are their being universal and "directly encode markedness statements and faithfulness principles enforcing the preservation of contrasts" (ibid.).
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The main concern of this sub-section, however, is the utility of this theory to the field of pragmatics since it is the central interest of the present work. In this regard, Blunter and Zeevat (n.d.: 1) point out the need for OT in pragmatics by stating that: Seeing linguistic meanings as underdetermining the content (proposition) expressed, there must be a pragmatic mechanism of completion which can be best represented as an optimization procedure. Thus, according to them the general framework of OT facilitates the task of formulating the desired explanatory principles (For more details on optimality-theoretic pragmatics, see Blunter and Zeevat, 2009). In order to draw a clearer image about the usefulness of OT in the various fields, generally, and pragmatics, particularly, a bird's-eye-view on its components is provided. This is what the following sub-section is about.
4.5.1 OT Basic Components OT has four basic components: 1. Generator (henceforth, GEN). 2. Constraint (henceforth, CON). 3. Evaluator (henceforth, EVAL). 4. Candidates (henceforth, CAN). Each of these will be concisely viewed just to give a rough idea about its function:
4.5.1.1 GEN This component is commented on by McCarthy (2007: 4) as that which "constructs a set of candidate output forms that deviate from the input in various ways". What is special about GEN is its freedom of analysis. By this is meant, as McCarthy (ibid.) puts it, that this component anticipates all the ways through which a language could transform a
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certain input optionally and sometimes repeatedly, hence, such anticipations become ready in the candidate set. This does in no way mean that all the possible candidates will be generated by the linguistic field itself (i.e. pragmatics in our case), owing to the fact that another component, EVAL, will filter them later on to give one optimal candidate only.
4.5.1.2 CON The second component is, as Odden (2011: 30) defines it, "a criteria-provider: it provides the necessary criteria needed to decide between possible candidates to be chosen as the optimal output". Prince and Somlensky (2002: 2) have previously highlighted a salient feature of CON: strict dominance hierarchy. By this they (ibid.) mean: "each constraint has absolute priority over all the constraints lower in the hierarchy". As indicated above, violating higher ranked constraints is more serious than that of the lower ranked ones.
4.5.1.2.1 Types of CON The original theory of OT supplies two main types of constraints: faithfulness and markedness. Both of these are applied mainly to phonology and syntax, as listed in Kager (2004: 451-2), which are both out of the interest of this work. It follows that these two types will not be discussed here as devised by the original OT. Nevertheless, there do exist types of constraints which breathe relevance to the present study: pragmatic constraints. Pragmatic constraints are depicted by Zeevat (n.d.: 6) as "a definition of what is marked in interpretation". He (ibid.: 6-7) lists the following ones: 1. FAITH: There is no interpretation for the utterance for which the hearer – putting herself in the position of the speaker – could have produced an utterance that is closer to the given utterance.
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Put another way, Zeevat (ibid.) believes that this CON swings between the abstract level of the speaker's intention and the more physical level of actual speech. What is marked according to FAITH are "any deviations from what is overtly given in the utterance". It follows that "non-literal interpretations only occur if literal interpretations do not succeed" (ibid.). Yet, this CON never allows interpretations which have no point to the utterance. 2. PLAUSIBLE: An interpretation is bad if there is a more plausible interpretation that is otherwise equally good. As Zeevat (ibid.) describes it, the job of this CON is multi-layered (Terminology is mine): a. Ambiguity: The most likely interpretation, in case of ambiguities, has to rely on probabilities given in language use. b. Probability: This mainly refers to the probability of the message in the context. Here, we have a movement from "the context ruling it out entirely to its being surprising in the context" to "its being expected or fully known"; and c. Unmarkedness: The most unmarked is the most expected. 3. NEW: Old referents are preferred over connected referents which are preferred over new referents. In other words, this CON "enforces conservatism with respect to the context" (ibid.). This means that if referents have to be considered in an interpretation, then referents with the highest activation level are always preferred: totally new referents come last. Zeevat (ibid.) stresses the fact that different interpretations can embrace various referents (objects, moments of time, events, states and topics), it follows that the unmarked case according to NEW goes along with the original referents, that is to say, entities and topics that were under discussion.
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4. RELEVANCE: This CON "prefers interpretations which help to achieve current goals of the conversation or which settle the questions that have been activated" (ibid.). Accordingly, what is unmarked here makes sense to the goals of the conversation. Any deviations or digressions to address a new topic are special. The last thing to be mentioned about these constraints is what Zeevat (ibid.) remarks on them. He asserts that they must be applied in the order in which they have been listed, that is, FAITH, PLAUSIBLE, NEW, RELEVANCE. Consequently, this is the very order in which these constraints will be arranged when applying OT to the selection of a specific mode of SM in the data of analysis.
4.5.1.3 EVAL The third basic component of OT is an interpretive one that has to do with indicating "the winner by referring to the constraints listed in CON and their language-specific ranking" (Lacy, 2007: 10). The means via which EVAL selects the optimal candidate runs as follows: EVAL receives the candidate set from GEN, evaluates it using some constraint hierarchy, and selects its most harmonic or optimal member [with the lowest violations to the higher ranked constraints] as the output. (McCarthy, 2007: 4-5)
4.5.1.4 CAN This refers to the set of all possible (and even impossible) elements that are freely delivered by the GEN from the input. Comparison is the major procedure of choosing between such candidates whereby the hierarchy of ranked and violable constraints leads the whole process of comparison (McCarthy, 2003: 211).
4.5.2 Doing Linguistic Analysis in OT The basic tool which OT utilizes to make the transform from a raw input to an optimal output is called the 'tableau'.
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In an OT tableau, the top left cell contains the input, whereas the rest of the left column contains candidate outputs. Each violation of any constraint of whatever rank (whether higher or lower) is marked by (*). The winner candidate, in turn, is indicated by a pointing hand (^) (Lacy, 2007: 11). Figure (5) below draws a clear picture on all these components and how they are distributed and marked:
Figure (5) An OT Tableau (Following Lacy, 2007:11)
The symbols that are found in this tableau are to be interpreted as follows: - C1, C2,…: refer to the language-specific ranked constraints. - !: refers to the elimination of a candidate either because it violates the highest ranked constraint as in cand3 and cand4, or it makes more violations than any other candidate as in cand 2. When the higher ranked constraints are violated and the candidates which so do are eliminated (as in cand3 and cand4), it follows that whatever violations such candidates make become irrelevant and that what shading refers to in the Figure above.
4.5.2.1 Some Illustrative Examples
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It has been emphasized before that OT is resorted to in this work for the sake of providing a justification for the case where some mode is selected in preference to another one. In order to vividly prove this, three illustrative examples from the data under investigation will be given:
Example 1: This is the case where a conventional mode is selected. What we have here is practical reasoning as the AS detected with no other mode to compete. As such, the tableau in this case is drawn as follows: PR
F.
A
*!
AD
*!
P.
PR D
N.
R.
* *
*
Key: Candidates:
Constraints:
PR= practical reasoning A= analogy AD= ad hominem D= dissociation
F= FAITH P= PLAUSIBLE N= NEW R= RELEVANCE
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*
Example 2: What we have here is the case where a combination of two ASs occurs. The example chosen embraces argument from an established rule and argument from analogy as the two ASs found out in the analysis and the resulting mode is a combination of both of them: ER+ A
F
P
*!
P
ER+ A
N
*
ER
*!
A
*!
Key: Candidates:
Constraints:
ER+ A= established rule+ analogy P= Praeteritio ER= established rule A= analogy
F= FAITH P= PLAUSIBLE N= NEW R= RELEVANCE
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R
Example 3: This refers to the case where a non-conventional mode is selected. What we have here is argument from sign as the AS analyzed with persuasive definition as the yielded mode. As such, the tableau in this case is drawn as follows: S
F
ER
P
R
*
*
*!
PD CC S
N
*! *!
Key: Constraints:
Candidates: S= sign ER= established rule PD= persuasive definition CC= correlation to cause
F= FAITH P= PLAUSIBLE N= NEW R= RELEVANCE
These three illustrative examples provide the basis on which any mode which a maneuver yields is selected. That is, the analysis of the data will give only one of the three modes which the examples above have analyzed and nothing else: - The same AS found out in the topical potential. - A combination of two ASs as detected in the topical potential; and - One of the four other modes which have formerly been introduced. Consequently, whenever a mode is chosen, reference will be made to one of the relevant examples analyzed above as the solid ground on which such a choice stands.
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What comes next is the practical realization of all what has been previously discussed – data analysis. The model which has just been elaborated on will be the pillar of such an analysis.
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CHAPTER FIVE DATA AND ANALYSIS 5.1 Data 5.1.1 Data Collection The data of this study are represented by (10) court trials evenly divided between civil and criminal cases (that is, 5 cases for each type). These cases are the transcribed PDF forms published on the official website of the American Supreme Court (Web Source 2), so no change or manipulation can be made to any case, and, consequently, the authenticity of cases is guaranteed.
5.1.2 Data Description 5.1.2.1 Features of the Data Owing to the fact that the data of this work are represented by civil and criminal cases; it becomes evident, then, that the description embraces them both. Such a description shows: the general concept of each type, what is common to both, and, ultimately, what the differences between the two are. However, it is necessary to point out that the civil type is started with first following Walton (2002) who describes the American civil and criminal laws and trials respectively in some detail. [For more information on the American legal system, see Melone and Kames, 2008] A civil case, as Pember (2003: 30-1) and Toulmin (2003: 15) explain, is a dispute between two parties in which one claims damages from another on the basis of an injury, libel, or similar cases. Generally speaking, the person who files the complaint first is called the plaintiff (in the data of this work the term petitioner is used interchangeably); the one at whom the suit is filed is called the defendant (in the data the term respondent is used intersubstitutively). Failing to live up to a contract is a
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clear example of a civil case. So, if a lumberyard enters a contract to sell a specific amount of wood to a carpenter for an agreed-upon price and then fails to deliver the wood, forcing the carpenter to buy it elsewhere at a higher price, the carpenter might sue the lumberyard to pay the extra costs incurred because of the lumberyard’s failure to deliver; these costs are called damages. A plaintiff who wins a civil suit is normally awarded money damages. Individuals, corporations, and the federal government can also bring civil suits in federal court claiming violations of federal statutes or constitutional rights. For example, the federal government can sue a hospital for overbilling Medicare and Medicaid, a violation of a federal statute. An individual could sue a local police department for violation of his or her constitutional rights – for example, the right to assemble peacefully (Web Source 3). On the other hand, criminal cases are, as Pember (ibid.) and Toulmin (ibid.) mention, those where an action brings charges against an individual (usually referred to as defendant) who is accused of making an offence either against the common law or against the statute. S/he who loses a criminal case can be punished by means of several ways: paying a fine, sent to jail, or in extreme cases, executed. In a kidnapping case, for instance, the government would prosecute the kidnapper; the victim would not be a party to the action. Furthermore, in some criminal cases, there may not be a specific victim. For example, state governments arrest and prosecute people accused of violating laws against driving while intoxicated because society regards that as a serious offense that can result in harm to others. When a court determines that an individual committed a crime, that person will receive a sentence. The sentence may be an order to pay a monetary penalty (a fine and/or restitution to the victim), imprisonment, or supervision in the community (by a court
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employee called a U.S. probation officer if a federal crime), or some combination of these three things (Web source 3). In addition to what has just been cited, Walton (2002: 9-15) has previously coined the similarities and differences between civil and criminal cases (which are resolved by means of trials). According to him (ibid.: 9-11), the similarities lie in that: 1. Both have two conflicting parties, the plaintiff (or petitioner) and defendant (or respondent), as aforementioned; and 2. The trial which is to resolve the civil or criminal dispute will pass through the same broad stages which have been discussed before (Cf. 4.4 above). As for the differences, Walton (ibid.: 11-15) wraps them up in the following: 1. In a civil case, liability is at issue, whereas in the criminal counterpart guilt is at issue. By this is meant that the argumentation in each type of cases requires a kind of evidence which is quite different from the other. Hence, in a civil case argumentation is, for instance, about the fulfillment of agreements (contracts), etc., as mentioned earlier. In criminal cases as in murder, for example, what is required is not only to prove that the "murder" has really been committed, but also, and more importantly, the defendant did have "the intent to kill". In other words, as Walton (ibid.: 12) puts it, "much of the argumentation will concern the goals or intentions that the defendant (who allegedly committed the act) had in mind at the time, and about whether the defendant can be shown to have had a 'guilty mind'". 2. The burden of proof is different in each case. In the civil, the burden of proof (i.e. the strength or weight of proof required to prove a conclusion) is symmetrical, as Walton (ibid.: 13) confirms. This means that the job of a trier (whether judge or jury) is to decide "which side has the claim that
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is more likely to be true on the basis of the evidence presented in the case". In the criminal peer, by contrast, the burden of proof is asymmetrical. In order to best understand this concept, Walton's (ibid.) own words are quoted: It means that although the prosecution must prove its case beyond a reasonable doubt, all the defense needs to do in order to win is to raise questions sufficient to show that the prosecution has not fulfilled its burden of proof. The job the prosecution needs to do to win is relatively hard, while the job the defense needs to do is relatively easy, other things being equal [hence asymmetrical] By reasonable doubt Walton (ibid.) means that "any doubt that remains should be so insignificant that a reasonable person would nevertheless believe that the accused has committed the crime".
5.1.3 Identification of the Data The data (i.e. cases) analyzed in this study are presented in Table (6) below. It cites: number of the case (as cited in the official website itself), the name of the case with respect to the conflicting parties, that is, the plaintiff (or petitioner) and defendant (or respondent), the arguers on behalf of the conflicting parties, and finally, a summary of the case. Five civil cases are listed first, and then five criminal peers are given. This table is adopted from web source 4 with some modification whereby all the pieces of information given are found in the transcribed form of the cases themselves. Each trial is divided into two major parts: the first is concerned with the argumentation of the petitioner(s); the other, in turn, has to do with the argumentation of the respondent(s). This division becomes clearer in the "arguing the case" stage, that is, the second stage of the trial. This has its own reflection on how each trial will be analyzed, the matter which is to be clarified in the methods of analysis below.
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Needless to remind that SM is only analyzed in the first two stages. The third stage, as mentioned earlier, which is mainly concerned with pronouncing judgement (or declaring the slip opinion, to use the terminology of the Supreme Court itself), will not be analyzed.
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Chamber of Commerce
09-115
12-17
11-460
Kiobel vs. Royal Dutch
10-1491
McBurney vs. Young
Defense Council, Inc
Natural Resources
Flood Control Dist. vs.
Los Angeles County
Petroleum Co.
Snyder vs. Phelps
09-751
vs. Whiting
Case Name
Case No.
Cupta vs. Getchell
Coates vs. Colangelo
Hoffman and Kneedler vs. Sullivan
Summers vs. Phelps
Philips and Katyal vs. O'Grady
Summary
Virginia’s Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non-Virginians, violates neither the Privileges and Immunities Clause nor the Commerce Clause of the United States Constitution.
The First Amendment protects from tort liability a person who speaks about a public issue on a public sidewalk, even if that speech is "outrageous." The Court unanimously agreed (albeit for different reasons) that the Alien Tort Statute did not allow a foreign citizen to sue a foreign corporation in an American court for aiding and abetting the commission of human rights abuses on foreign soil. The flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the Clean Water Act.
An Arizona law that sanctions employers who hire illegal immigrants is not preempted by federal immigration law.
Civil Cases
Arguers on Behalf of Petitioner and Respondent Respectively
Table (6) Key Information of the Data
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Premo, Superintendent,
09-658
Bailey vs. United
11-770
Millbrook vs. United
11-10362
States
Evans vs. Michigan
11-1327
States
Moncrieffe vs. Holder
11-702
Penitentiary vs. Moore
Oregon State
Case Name
Case No.
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Moran vs. Baughman and Gannon Paolella vs. Yang
Shanmugam vs. Wall
Goldstein vs. Shah
Kroger vs. Wax
Summary
The petitioner, a prisoner, was raped by federal prison guards. The so-called "law enforcement proviso" of the Federal Tort Claims Act allowed the petitioner to sue the federal government for the guards' conduct.
If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either payment or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act. In Michigan v. Summers, the Supreme Court held that police officers executing a search warrant were allowed to detain people on the premises while they conducted the search. This case limits that to the "immediate vicinity" of the place being searched, so police searching a basement apartment couldn't search a man leaving from near the apartment in a car. The Double Jeopardy Clause bars retrial following a courtdirected acquittal, even if the acquittal was erroneous.
Habeas relief may not be granted with respect to any claim a statecourt has found on the merits unless the state-court decision denying relief involves an "unreasonable application" of "clearly established federal law, as determined by" the Court.
Criminal Cases
Arguers on Behalf of Petitioner and Respondent Respectively
5.2 Analysis 5.2.1 Methods of Analysis The eclectic model that has been developed in Chapter Four above is the basic means utilized here to analyze SM in American civil and criminal court trials (viz. 5 examples of each type). After that, a statistical tool is used for calculating the results which the analysis has yielded (Cf. 5.3 below). As aforementioned, the civil cases are analyzed first (and this is the main concern of 5.2.2.1 below) while the criminal counterpart are analyzed next (i.e. 5.2.2.2 below). Whether civil or criminal, two important points should be given their due attention prior to embarking on the task of analysis: 1. The cases are given the same numbers in which they are cited in the official website of the American Supreme Court (e.g. 09-115). This is done for explicitness and easy access to the cases on the website itself. 2. It goes without saying that any trial is quite lengthy, so analyzing all the ten cases occupies a very large space in the work; as such only some illustrative examples are presented (viz. one civil case and one criminal case). This is made for the sake of two things: first, just to reveal what kind of analysis is conducted and, thus, showing the workability of the eclectic model; and second, to shed light on the findings of the analysis. It is worth noting here that the maneuver which is made by a party is highlighted by being italicized, unless otherwise indicated. Furthermore, analyzing the second stage of the trial is subdivided on
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the basis of the number of the conflicting parties. That is, some cases (e.g. 09-115 below) have two petitioners; as such the maneuvers made by each are analyzed separately. Later on, the maneuvers made by the respondent(s) are analyzed individually. This makes SM in the "arguing the case stage" multi-layered depending on the maneuvers made by the different parties.
5.2.2 Illustrative Analyzed Examples 5.2.2.1 SM in Civil Cases Owing to the fact that analyzing SM is so detailed in the eclectic model that it may confuse the analysis of this concept in the two alleged stages (i.e. establishing facts of the case, and arguing the case); it follows that the analysis is conducted in terms of separate categories. By this is meant that the maneuver at each of the two previously mentioned stages is analyzed separately at the three levels as dictated by the model. Below are the pieces of information identifying the case that has been selected as an illustrative example:
Case No :
09-115
Case Name :
Chamber of Commerce vs. Whiting
Arguers
on
Behalf
of
Petitioner
and
Respondent Philips and Katyal vs. O'Grady
Respectively :
Summary :
An Arizona law that sanctions employers who
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hire illegal immigrants is not preempted by federal immigration law.
5.2.2.1.1 Establishing Facts of the Case As indicated by the model of analysis, this stage is a three-level one which consists of the following components (whereby the levels are represented by the letters A, B, C) respectively: A: The first component in the developed model is about reasonableness which is mirrored by ten rules (Cf. 3.2.1 above). Philips, the petitioner, makes the following maneuver (written in italics) which shows clearly how this component is dealt with: MR. PHILLIPS: Thank you, Mr. Chief Justice, and may it please the Court: In 1986, Congress converted what had been before that time a merely peripheral concern of immigration policy -- that is, how to regulate worker authorization -- and converted it into a core concern of immigration policy by the passage of the -- of the Immigration Reform and Control Act. This Court has characterized that change in legislation as providing a comprehensive scheme for dealing with those issues, and that characterization is obviously apt because Congress provided for an exhaustive and exclusively Federal method of bringing to the attention of Federal authorities problems in worker authorization, the method by which those matters should be investigated, the method by which they should be adjudicated, all of which are controlled as a matter of Federal -- exclusive Federal activity; and, indeed, the ultimate judicial review goes exclusively to the Federal courts of appeals.
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The sanctioning provisions are very explicit and they're very clear and they are very balanced; and for a good reason. Congress realized in this context that if you over-enforce in one direction -- that is, if you try to deter the hiring of unauthorized workers -you run a very serious risk of causing employers to err on the side of not hiring others who are in fact authorized but who may fall into protected classes. And so Congress very carefully calibrated the penalties on both sides so that the employer essentially would play it straight down the middle and hire the best people for the job under these circumstances, while, of course, complying if at all possible with the Federal requirements. And so it's against that backdrop – In this excerpt, Philips first describes the provisions laid down by the congress as apt, explicit, clear, and balanced though it is Federal-method- specific. Then, all of a sudden, he, as the italicized lines show, raises doubt about the possibility of such provisions to comply with the Federal requirements. By so claiming, in this move (i.e. the italicized lines), he violates Rule 8 of reasonableness. According to this rule, validity is at issue. It is to be tested by means of making more explicit or unexpressed premises. This is embodied in his attempt to first validate the Congress decision as aforementioned, but then he alludes to the impossibility, which is likely to occur, of those very sanctioning provisions to comply with the Federal requirements. This posits a contradiction between what is made first and what follows on no valid ground (which will be quite obvious in the next stage). Effectiveness, the second part of the first level, is tripartite in the model:
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a. Topical Potential: It is represented by three strategies: 1. ASs: Practical reasoning is the AS which is employed in this stage. This can be made clear via applying its structure of inference (Cf. 2.2.7 above): - Federal requirements should be complied with (A). - To bring about A, it should be brought about that the Congress sanctioning provisions do not comply with those requirements (B). - Therefore, B should be proved as against A. 2. Reasoning: Since the AS that is employed here is goal-based (i.e. practical reasoning), this makes the kind of reasoning employed goal-based as well. That is, simple disjunctive reasoning is employed (Cf.2.3.1.1.4 above): - Either to comply with Federal requirements (A) or stand against them (B). - Congress sanctioning provisions stand against them. - Therefore, Congress sanctioning provisions do not comply with them. 3. Fallacy: Violating Rule 8 automatically engenders committing a fallacy. The way through which this rule is violated is that of faulty reasoning. More precisely, "denying the antecedent" is the fallacy which is committed: - Congress sanctioning provisions should comply with the Federal requirements (the antecedent) so that employers would not be able to hire unauthorized workers (the consequent). - Congress sanctioning provisions do not comply with those requirements.
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- Therefore, employers are able to hire unauthorized workers. b. Audience Demand: As the model explicitly states, this aspect is represented by 6 rules. In this stage, this aspect is fulfilled because none of those rules has been violated. This finding, as well as those found out in the majority of the maneuvers analyzed below, match the findings listed on Tables (7) and (21) and shown in Figures (6) and (20) respectively below. They all fulfill the fifth aim in this study (that is, Identify the way via which audience demand is appealed to in the data of the study). For the verification or rejection of the hypothesis associated with this aim, see below. c. Presentational Devices: None of the eight figures of speech discussed before has been employed in this maneuver (Cf. 4.2.3 above). This finding, as well as the fifth, sixth, first and third maneuvers made by Philips and Katyal respectively, and all the maneuvers made by O'Grady, and the ones found on Table (57), go along with what is listed on Tables (12) and (22) and shown in Figures (11) and (21) below. They collectively fulfill the sixth aim in this work (Highlight the presentational device(s) most frequently employed in the data under scrutiny). For the verification or rejection of the associated hypothesis, see below. B: This level, as the model dictates, is represented by the notion of dialectical relevance which, in turn, is instantiated by: 1. Type: In this maneuver, probative relevance is the type which has been employed. This can be clarified by noticing that Philips uses the proposition (the Congress sanctioning provisions on
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hiring authorized workers) to disprove their (i.e. the provisions) compliance with the Federal requirements in this regard, as "Congress provided for an exhaustive and exclusively Federal method of bringing to the attention of Federal authorities problems in worker authorization" which Philips himself has said at the beginning (See the excerpt above). This finding, in addition to the majority of the ones analyzed below, and those listed on Table (57), are compatible with what is demonstrated on Tables (13), (14), (23), (24) and shown in Figures (12), (13), (22) and (23). They all fulfill the seventh aim in this study (
Point
out
the
way
whereby
dialectical relevance is utilized in the data of the work). For the verification or rejection of the associated hypothesis, see below. 2. Approach: Relevance cube: None of the three components of this cube (that is, domain, component, and relational) has played a role in this maneuver. C: A conventional mode of SM is what this maneuver yields. That is, practical reasoning is the resulting mode here in line with the AS analyzed within the domain of topical potential (Cf. 4.5.2.1, example 1 above). This finding, as well as six of the maneuvers made by the conflicting parties, and the ones listed on Table (57) below, match the findings given on Tables (15), (16), (25), (26) and shown in Figures (14), (15), (24), and (25). Together, they fulfill the eighth aim in this study (Distinguish the modes of strategic maneuvering most frequently yielded in such trials). For the verification or rejection of the associated hypothesis, see below.
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5.2.2.1.2 Arguing the Case Owing to the fact that this stage is the most important one in a trial as indicated before, as such it is quite expected to find more than one maneuver made by the conflicting parties in order to achieve their goals. This imposes a separate analysis (involving the three formerly mentioned levels) of each maneuver captured in this stage for the sake of accuracy. The following is the first maneuver made by Philips, the first petitioner, in this stage whose beginning is initiated with Justice Scalia's question: JUSTICE SCALIA: Why -- why is that a problem if, as -- as the Federal statute requires and the State statutes require, you have to show an intent to hire an unauthorized worker? Isn't -- isn't that what the State statutes here require? MR. PHILLIPS: Well, the State statute has two components to it. One is knowing and one is intent. But JUSTICE SCALIA: Right. MR. PHILLIPS: But I don't see how that JUSTICE SCALIA: So -- so why is that a problem for -- for the business? I mean he's safe so long as he doesn't intentionally hire an unauthorized worker. MR. PHILLIPS: Well, I think part of the problem is that there -- it is never 100 percent clear precisely who is and who is not an authorized worker. And I think what Congress said was -- I'm not going to deal with this problem in the kind of granular way you're looking at it, Justice Scalia, which is specifically at each of the individual employment decisions. I'm going to look at the generality of situations, and realize that if you put in -- on one side of the scale what Arizona has done here, which is to say you can -- you can essentially have the death penalty to the business, that is, complete eliminate
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the business's right to exist, and, on the other side of the scale, a $250 fine, it would -- it would be pretty remarkable to say, well, I -- you know, I'm going to hide behind the intent and knowing requirements and, instead, simply avoid if at all possible the risk of Arizona's sanctions being imposed upon me. JUSTICE SCALIA: Well, I think what Arizona would answer to that is: Well, that's the only option the Federal Government left us. MR. PHILLIPS: Well, I'm quite sure that that's what Arizona will say. This is a complex maneuver, as termed by this work, which consists of two unequal parts (the first dependent, the second independent). Each has its own realization, thus, each will be analyzed individually. In order to avoid confusion, the first part will be italicized; the second underlined. The first part of this maneuver, which is a three-level one, is analyzed as follows: A: As regards reasonableness, it has been abided by as none of the ten rules is violated by Philips (Cf. 3.2.1 above). Effectiveness, in turn, is analyzed as follows: a. Topical Potential: This has: 1. ASs: The AS which is employed in this part is argument from verbal classification. More precisely, the vague nature of this scheme has been exploited to produce this part of the maneuver (Cf. 2.2.5 above). This is supported by what Philips says: "it is never 100 percent clear precisely who is and who is not an authorized worker…", the matter which Walton (2002: 52) has previously discussed.
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2. Reasoning: Employing argument from verbal classification requires deductive reasoning as the kind which is at focus in this part of the maneuver. (Cf.2.3.1.1.1): - Worker authorization is never 100 percent clear. - A part in the State statute is about worker authorization. - Therefore, that part of the State statute is never 100 percent clear. 3. Fallacy: No fallacy has been committed as no rule of reasonableness has been violated. b. Audience Demand: In this part, this aspect is fulfilled because none of the already introduced rules has been violated. c. Presentational Devices: No figure of speech has been employed in this maneuver (Cf. 4.2.3 above). B: Owing to the fact that the maneuver under hand is complex, it follows that this parameter cannot be satisfied in this part of the maneuver depending on the point that dialectical relevance, which realizes the second parameter, is stage-specific as pointed out before. This should not lead to the hasty conclusion that this complex maneuver pertains to the second stage as a whole due to what has been posed before that more than one maneuver is expected to occur. What it means is that each maneuver is treated as a separate entity by itself with its own strategies (as indicated by the eclectic model), as such it will have its own realization of relevance which contributes to that very maneuver at the specific position in which it takes place. Since the realization of relevance is never complete in the first part of the complex maneuver, it will be deferred to the second part.
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C: The mode which this part of the maneuver yields is that of dissociation (Cf. 3.4.4 above). It is symbolized by Philips' distinguishing the State statute into two components: knowing and intent (Cf. 4.5.2.1, example 3 above). Although the realization of this mode is incomplete in this part of the complex maneuver, yet it is achieved, here, by means of argument from verbal classification representing the first element in topical potential. To put it more clearly, when Justice Scalia supports her inquiry with the warrant that this is what the State statute requires, Philips at that point makes a distinction within what has been presented as a unitary notion by the Justice herself. The dissociation, in turn, requires more illustration from the Justice's viewpoint, the thing which argument from verbal classification (employed by Philips) partially fulfills. The second part of this complex maneuver, which is represented by the underlined words in the excerpt, is analyzed as follows: A: Philips, here, violates: Rule 2 and Rule 6 of a reasonable conduct. The first (that is, Rule 2) is activated by the presentation of his standpoint in a way that makes it immune to criticism, whereas the second (i.e. Rule 6) ensues from the use of presupposition (Cf. 3.2.1). Violating the rules above will become clearer when analyzing effectiveness:
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a. Topical Potential: This has: 1. ASs: The AS which is employed here is the slippery slope argument. It can be made obvious via applying the structure of inference of this scheme (Cf. 2.2.9 above): First Step Premise: Arizona's sanctions should be applied. Recursive Premise: Applying those sanctions would plausibly lead to hide behind the intent and knowing requirements, and simply avoid if at all possible the risk of Arizona's sanctions being imposed upon me. Bad Outcome Premise: Applying those sanctions has a bad outcome. Conclusion: Applying those sanctions should not be brought about. 2. Reasoning: The kind of reasoning employed here is presumptive (Cf.2.3.1.1.3 above). By definition, the truth or falsehood of any proposition is always tentative because there is a continual possibility of the appearance of new evidence (or any piece of relevant information in general) in the dialogue. This, as discussed before, may include the speaker's agreement to retract supporting a particular proposition with the newly proposed evidence. This has been clearly crystallized in what Justice Scalia and Philips have exchanged in the last two turns between Scalia and Philips respectively, whereby Philips explicitly withdraws his position. 3. Fallacy: Two fallacies are committed in this part. The first fallacy lies in the use of "essentially" which makes the standpoint point immune to criticism:"you can essentially have the
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death penalty to the business, that is, complete eliminate the business's right to exist…" The second, in turn, flows from presenting the standpoint as part of the starting points which have already been agreed upon. This is engendered by the use of existential presupposition represented by the use of the verb "know" in “well, I -- you know, I'm going to hide behind the intent and knowing requirements” (For more information on presupposition, see Yule, 1996b). b. Audience Demand: This aspect is fulfilled because none of its rules has been violated. c. Presentational Devices: Two destabilization tropes, namely metaphors, are employed here: - Death penalty to the business, to describe the complete elimination of the business's right to exist; and - The use of the verb "hide" instead of "keep to" when talking about Arizona's sanctions. It is interesting to point out that these two metaphors have been exploited in what accords with the AS employed in this part of the maneuver, that is, to symbolize the bad outcome of applying the debated sanctions. They have not been presented randomly just to enrich Philips' presentation. B: Dialectical relevance, the gist of this level, can now be completely analyzed: 1. Type: Probative relevance is the kind which is employed in this complex maneuver. Philips first makes a claim which involves
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dissociating between knowing and intent and continues throughout the entire maneuver to prove that claim. He does this by means of argument from verbal classification to partially deal with issue of intent in the first part of the maneuver; and the slippery slope argument is used, in the second part, to embrace the knowing and intent components of the statute (See the excerpt above). 2. Approach: Relevance Cube: Again, none of the three components of this cube has played a role in this complex maneuver. C: This complex maneuver employs a complex mode of SM by dissociation (Cf. 3.4.4 and 5.4.2.1, example 3 above). Differently put, the complex mode consists of two parts: one main part which is realized by two dependent schemes. The main is that which is initially made – that of dissociation, as clearly stated in the first part of the maneuver. The two subsidiary schemes are: argument from verbal classification, and the slippery slope argument. Accordingly, the dissociation via which the mode of SM is implemented is represented by distinction only. Below is the second maneuver made by Philips in this stage: JUSTICE KENNEDY: Well, when I picked up this -this brief and looked at this case, I thought: Oh, well, licensing, that's a defined term; I'll look in Corpus Juris Secundum or ALR or something. But it really isn't. Your brief indicates you start with dictionaries, fair enough. You indicate what Federal licensing laws are. But I see no limitation on what the State can decide is a license in any jurisprudential principle that you've cited. MR. PHILLIPS: Right. Justice Kennedy, I think the better way to try to -- to grapple with the meaning of the licensing law or whether it ought to be construed
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broadly to allow the State wide authority to engage in supplemental enforcement in this, or narrowly in order to say that what really ought to happen in this context is, if you deal with a situation where the Federal Government has enacted -- I'm sorry -- has enforced a provision and imposed a penalty through the Federal scheme, that then as a supplement to that the State does in fact have the authority to add something over and above what it -- what the Federal Government has done. But it seems to me quite remarkable to think that Congress intended through a parenthetical referring to "through licensing laws" to allow the State to adopt an entire alternative shadow enforcement mechanism, a non-administrative decision-making process, completely a State-run operation; and even at the end, the sanction is not -- is not imposed ultimately in effect by the -by any regulating entity. It is ordered by a State court. JUSTICE SCALIA: That would be possible only because nobody would think that, with this scheme in place, the Federal Government would not enforce it. Of course, no one would have expected that. A: In this maneuver, Philips violates the second rule of reasonableness which is concerned with the burden of proof (Cf. 3.2.1). It will be clearer, however, when analyzing below the fallacy triggered by such a violation. The finding in this component, in addition to the ones found in maneuvers 4, 6 below, are compatible with the findings listed on Tables (7), (17) and Figures (6) and (16) below. Together, they fulfill the first aim of this work (i.e. Show whether reasonableness is frequently kept to or violated in the data under scrutiny). For the verification or rejection of the associated hypothesis, see below. Effectiveness, in turn, has:
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a. Topical Potential: It is represented by: 1. ASs: Argument from sign is the AS which is employed in this maneuver. This can be made clear via applying its structure of inference (Cf. 2.2.3 above): Major Premise: Generally, a parenthetical referring to something (in this case to licensing laws) means that Congress allows the State to adopt an entire alternative … . Minor Premise: That indication has been found in this case. Conclusion: Therefore, by licensing laws, Congress means to allow the State to … . 2. Reasoning: The type of reasoning employed here is presumptive (Cf. 2.3.1.1.3 above). This is supported by Justice Scalia's rejection to Philips' standpoint whereby what the latter has said could not prove its truthfulness (See the excerpt above). 3. Fallacy: Violating Rule 2 automatically engenders committing a fallacy. The way through which this rule is violated is that of evading the burden of proof. It is embodied by the use of personal guarantees for the correction of a standpoint "It seems quite remarkable to me to …", as just aforementioned in reasonableness above. b. Audience Demand: In this maneuver, this component of the model is fulfilled because none of the rules representing this aspect has been violated. c. Presentational Devices: Two metaphors have been used in this maneuver. They are instantiated by the use of:
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1. The verb "grapple" to describe the difficult task of defining "licensing laws". As with the previous example, this metaphor has been deliberately used; it is not meant to enhance the aesthetics of presentation, what it pants for is pave the way for the mode of SM which is to be discussed later on. 2. The adjective "shadow" to describe the intrinsic weakness of the sanctions imposed by the State. B: Dialectical relevance which represents this component is analyzed on the basis of: 1. Type: In this maneuver, as the case with the others analyzed thus far, probative relevance is the type which has been employed. This can be clarified by noticing that Philips uses the proposition that defining licensing laws in accordance with what the State does has bed consequences, and he has proved that in the end of his turn (See the excerpt above). 2. Approach: Relevance cube: Component relevance is the fold which is utilized from this cube. This is clearly illustrated by referring to Justice Kennedy's inquiry about the limitation of what Philips has presented. In other words, according to Justice Kennedy, how Philips defines licensing laws offers no limitation to a State decision in the jurisprudential principles cited by him. More specifically, the component which is at stake here is the propositional content of what Philips has earlier said.
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C: The mode for which the way has been being paved by the metaphor formerly indicated is persuasive definition (Cf. 3.4.1 and 4.5.2.1, example 3 above). How this mode is engendered is by means of making the term "licensing law" pejoratively connoted through the use of: 1. An entire alternative shadow enforcement mechanism. 2. Non-administrative decision-making process. 3. Completely a State-run operation, and accordingly 4. It is not a regulating entity. More precisely, it is the analogy-provoking capacity of those terms which has boosted this mode to come to the scene. What follows is the third maneuver made by Philips in his turn of this stage: JUSTICE KENNEDY: Well, why is it -- this is the same question you're answering. Why is it suddenly not a license because the -- because the State imposes an additional condition, where it was a license before? MR. PHILLIPS: Well, I JUSTICE KENNEDY: And I MR. PHILLIPS: I think the question is whether it is a licensing law within the meaning of what Congress intended. I mean -- the -- the reality is, Justice Alito, there -- there is no common definition of "license," and various States and local JUSTICE BREYER: Actually, there is. I mean, it seemed to me when I read this, it sounded a little familiar, and I think whoever wrote it in Arizona copied it out of the Administrative Procedure Act. I mean, you read the definition of "license" in the Administrative Procedure Act-
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MR. PHILLIPS: But JUSTICE BREYER: -- and this is awfully close. MR. PHILLIPS: Right. I understand that, Justice Breyer, and I agree with that. But the problem is, is that the -- the Federal law, it doesn't talk about actions with -- with respect to licenses. It talks about licensing laws and JUSTICE BREYER: That's right. It might have meant something different; Congress might have. But what is, then -- I read the SEIU brief. I thought that was pretty interesting. Is that something you adopt as what the Congress did mean? I mean, what do you think Congress did mean, and what evidence is there -- if it didn't mean the APA definition, what evidence is there for that? MR. PHILLIPS: Well, the SEIU brief does a very nice job of explaining the -- the particular focus of Congress, obviously, on the -- on the Agricultural Workers Protection Act, and in particular -- which, you know, has tremendous significance in terms of narrowing the State's authority here, because, obviously, in their conforming amendments in that context JUSTICE SCALIA: It could have named that, if that's all it meant. MR. PHILLIPS: I'm sorry, Your Honor. JUSTICE SCALIA: It could have named that, that particular licensing scheme, if that's what it meant. But it didn't name it; it said licensing generally. What did it intend to add to that? Barbers' licenses? MR. PHILLIPS: No, I think what JUSTICE SCALIA: Beauticians' licenses? MR. PHILLIPS: Of course. JUSTICE SCALIA: How would any of this have anything to do with the immigration laws? MR. PHILLIPS: Well, I think what it -- what Congress actually had in mind and what's the most
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natural reading of a licensing law is the fairly common situation where somebody violates Federal law, usually on the criminal side, and a State licensing entity finds out about a conviction of a Federal crime, and says: Oh, wait a second, we don't want people to have licenses under these circumstances, and, therefore, they JUSTICE SCALIA: But they're saying -that's exactly what they are saying. We -- we have – This maneuver is somehow different from the peers analyzed so far. It is a tripartite compound maneuver. It is termed as such by the present work because of its structure. As the analysis of the excerpt will show, this compound maneuver consists of three independent sub-maneuvers which are collated together to best serve the main topical potential which has triggered this type of maneuver (that is, the topic of licensing). For the sake of explicitness and consistency, each of the three independent maneuvers will be analyzed separately (Cf. 5.2.2.2 above). The first independent maneuver, i.e. the italicized one, is analyzed in the following way: A: Philips, here, violates the second rule of reasonableness which ensues from the use of axioms (Cf. 3.2.1 above). This will become clearer when analyzing the fallacy committed when dealing with effectiveness: a. Topical Potential: This has: 1. ASs: The AS which is employed in this part is argument from verbal classification. More adequately, the vague nature of this scheme has been exploited to produce this part of the
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maneuver (Cf. 2.2.5 above). This is supported by what Philips says: "there is no common definition of "license"…". 2. Reasoning: As
mentioned before, employing
argument from verbal classification requires deductive reasoning as the kind which is at focus in this part of the maneuver.: - There is no common definition of license. - Congress has a licensing law. - Congress licensing law has no common definition. 3. Fallacy: The fallacy which is committed in this part is part of the fallacy which evades the burden of proof. This is instantiated by the axiomatic presentation of Philips' standpoint via the use of "reality" and "common" in “I mean -- the -- the reality is, Justice Alito, there -- there is no common definition of "license," and various States and local”. b. Audience Demand: In this part, this aspect is fulfilled because none of the aforementioned rules has been violated. c. Presentational Devices: No presentational devices have been used in this part (Cf. 4.2.3 above). B: Dialectical relevance in this part is analyzed as: 1. Type: Probative relevance is the kind which is employed in this part of the compound maneuver. Here, Philips posits the claim that licensing is not a clear term to define as it might be thought. He further attempts to tackle the definition of the term within what Congress intends it to be in order to prove his standpoint (See the excerpt above).
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2. Approach: Relevance Cube: None of the three components of this cube has played a role in this complex maneuver. C: The mode which this part has come up with is that of dissociation (Cf. 3.4.4 and 4.5.2.1, example 3 above). It is represented by Philips' distinguishing the Federal law as "talking" about license laws and not "actions with respect to licenses". In other words, Philips has just distinguished (as part of dissociating) what the Justice has presented a unitary notion. As such, dissociation here is achieved by means of distinction only. The second independent maneuver, i.e. the underlined one, in turn is analyzed as follows: A: Two rules of reasonableness have been violated here (Cf. 3.2.1 above): - Rule 2: By means of an axiomatic presentation of a standpoint; and - Rule 6: Via the use presupposition. Both of these will be clearer when analyzing the fallacy committed when dealing with effectiveness: a. Topical Potential: Here we have: 1. ASs: The AS which is employed in this part is argument from correlation to cause (Cf. 2.2.11 above). More specifically, SEIU brief has some correlation with what Congress intends "licensing laws" to mean:
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Correlation Premise: SEIU brief explains the particular focus of Congress on Agricultural Workers Protection Act as (correlation) has tremendous significance in terms of narrowing the State's authority here (cause). Conclusion: Therefore, SEIU brief causes narrowing the State's authority. 2. Reasoning: The type of reasoning employed here is presumptive (Cf. 2.3.1.1.3 above). This is supported by Justice Scalia's objection to Philips' reasoning whereby the latter could not prove his standpoint (See the excerpt above). 3. Fallacy: In accordance with violating two rules of reasonableness, two fallacies have resulted in this part. The first is that which evades the burden of proof. This is instantiated by the use of the word "obviously" in “the particular focus of Congress, obviously, on the -- on the Agricultural Workers Protection Act, and in particular --”. The second fallacy, on the other hand, is that which follows from using the proposition "Agricultural Workers Protection Act has tremendous significance…" as part of the starting points already agreed upon, whereas in fact it is not. This is embodied by the use of the existential presupposition represented by the use of the verb "know". b. Audience Demand: In this part, this aspect is not fulfilled: it is activated by violating Rule 6. This is symbolized by Justice Scalia's objection to what Philips has said, that is, the speech act he has been performing could not fulfill the role assigned to it – making her accept his standpoint.
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c. Presentational Devices: No presentational devices have been used in this part (Cf. 4.2.3 above). B: Dialectical relevance is analyzed as being composed of: 1. Type: Probative relevance is the kind which is employed in this part of the compound maneuver. Here, Philips keeps on using propositions which help to prove his standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components of this cube has played a role in this complex maneuver.
C: As made clear before, every AS is a mode of SM by itself (Cf. 4.5.2.1, example 1 above), it is clear then that the mode which this maneuver comes up with is that of correlation to cause. The third, and last, independent maneuver, which is the double underlined one, is analyzed as follows: A: Rule 2 of the reasonable conduct has been violated here (Cf. 3.2.1 above). This is motivated by the way via which the standpoint is presented, which will be clearer with analyzing the fallacy committed in the domain of effectiveness: a. Topical Potential: Here we have: 1. ASs: Argument from analogy is the AS which is employed in the last part. The structure of inference of this scheme adds more clarifications (Cf. 2.2.1 above), whereby the analogy is
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between violating the Federal law and how Congress defines licensing laws: Major Premise: Violating the Federal law is similar to what the Congress intends licensing law to mean. Minor Premise: What is true with violating the Federal law is true with what Congress intends the aforementioned law to mean. Conclusion: Therefore, the Congress definition of licensing law is true. 2. Reasoning: The type of reasoning detected here is deductive (Cf. 2.3.1.1.1 above): - Violating Federal law on the criminal side does not grant licenses on particular circumstances. - Congress definition of licensing is similar to violating Federal law. - Therefore, Congress does not grant licenses on those particular circumstances. 3. Fallacy: The fallacy committed here ensues from violating the second rule of reasonableness as previously mentioned. This fallacy is engendered by formulating the standpoint in a way that makes it immune to criticism: " Well, I think what it -- what Congress actually had in mind and what's the most natural reading of a licensing law is the fairly common situation where somebody violates Federal law ". b. Audience Demand: In this part, this aspect is fulfilled because none of its rules has been violated.
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c. Presentational Devices: No presentational devices have been used in this part as well (Cf. 4.2.3 above). B: Dialectical relevance, the gist of the second parameter, can now be completely analyzed: 1. Type: Probative relevance is the kind which is employed in this part of the compound maneuver. Here, Philips keeps on using propositions which help to prove his standpoint (See the excerpt above). 2.
Approach:
Relevance
Cube:
Relational
relevance
(particularly, supporting a sequel) is the fold which is at issue in this part. It is crystallized by Justice Scalia's inquiry about the relevance of Philips second part of the compound maneuver to immigration laws: "How would any of this have to do with the immigration laws?". C: As with the second part of the compound maneuver, we have a conventional mode of SM here. It follows then that the mode which this part of the maneuver comes up with is that of analogy (Cf. 4.5.2.1, example 1 above). After analyzing the various parts of this maneuver, it is necessary to indicate that in spite of the fact that they are independent, that is to say, each has its own complete structure as dictated by the model, yet there has been a point of contact whereby the interrelatedness of the three to serve the same topical potential becomes crystal clear. This is where Justice Scalia asks about the
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relevance of the advanced arguments to immigration laws as dealt with before. Now, it is time to analyze the fourth maneuver made by Philips: JUSTICE SCALIA: I think it's very common to talk about authority to do business within a State as -as a license. You say "licensed to do business in" so many States. It's a common expression. Now, I have -- maybe you'll persuade me otherwise, but I have no doubt that insofar as this law limits the authority to do business within the State, it is a -- it is a licensing law. It's a little harder extending licensing to formation of a corporation, but when you issue a corporation charter you really do two things. You create the corporation and enable the limitation of liability that creates, and secondly, you authorize that new creature to do business within your State. So at least half of that corporation law is licensing, it seems to me. Now, if that's what I think, what MR. PHILLIPS: Actually, Justice Scalia, can I stop you there? JUSTICE SCALIA: Yes. Go on. MR. PHILLIPS: Because I think, actually, if you just -- if you just receive the articles of incorporation, that doesn't actually in all States necessarily give you the opportunity to do business. It just simply gives you the right to exist, and you may very well need to get a separate document in order to actually do business in a particular State. JUSTICE SCALIA: You -- but you do not need the kind of a document that an out-of-State corporation needs MR. PHILLIPS: No, you don't need that.
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JUSTICE SCALIA: -- if you're an in-State corporation. Mr. PHILLIPS: That's true. That's true. But the - but the reality is that nobody, I think -and common sense and common use of the term, thinks of articles of incorporation or the charter of a partnership or any of those as -- documents as licensing, which suggests that the State JUSTICE SOTOMAYOR: Could I -- could I MR. PHILLIPS: I'm sorry? JUSTICE SOTOMAYOR: -- just -- just focus the questioning? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don't disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens and was -- undocumented aliens and was found to have violated it, that the State can revoke their license, correct? MR. PHILLIPS: Right. A: Two rules of reasonableness have been violated here (Cf. 3.2.1 above): - Rule 6: Via circular reasoning; and - Rule 2: By means of axiomatically presenting a standpoint. Both of these will be clearer within effectiveness below: a. Topical Potential: Here we have: 1. ASs: Argument from an established rule is the AS which is employed in this maneuver (Cf. 2.2.2 above). The argument here is about the already established and known rule which gives existence to some business, i.e. the rule via which licensing laws work (See the excerpt above).
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2. Reasoning: Philips employs E-contrario reasoning in his maneuver (Cf. 2.3.1.1.5 above). This is motivated by Philips' reliance on what Scalia literally says: "but I have no doubt that insofar as this law limits the authority to do business within the State, it is … it is a licensing law". Accordingly, what the Justice says applies exclusively to the State only, and it has nothing to do with what is outside it. 3. Fallacy: In accordance with violating two rules of reasonableness, two fallacies have been committed: 1. The first is that which evades the burden of proof. This is instantiated by the use of the terms: "nobody", "common sense", and "common use" in “That's true. But the -- but the reality is that nobody, I think -and common sense and common use of the term,”; and 2. The second is that of circular reasoning or the fallacy of begging the question. It is symbolized by using arguments which are synonymous with the standpoint being debated: - Receiving articles of incorporation gives a business the right to exist within the State. But it does not allow that business to activate outside the State. This standpoint is the same which Justice Scalia has been advancing in her argument. Philips has done nothing more than going around the bush to repeat the same standpoint, hence circularly arguing. b. Audience Demand: In this maneuver, as with many of the others, this aspect is fulfilled because none of its rules has been violated.
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c. Presentational Devices: No presentational devices have been used in this maneuver (Cf. 4.2.3 above). B: Dialectical relevance is analyzed as: 1. Type: Topical relevance is the kind which is employed in this maneuver. Philips uses propositions which have nothing to do with (dis)proving the standpoint advanced by Scalia: Scalia: Receiving articles of incorporation grants the authority to do business within the State. Philips: That does not give the right to do business outside the State. What Philips says is topically relevant to what Scalia says as both talk about receiving articles of incorporation. 2. Approach: Relevance Cube: Component relevance is the fold which is at issue in this maneuver. It is triggered by Justice Sotomayor's command to Philips to focus his (i.e. Philips') questioning because they keep talking about things which do not have relevance the standpoint being argued (See the excerpt above). C: The mode of SM in this maneuver is that of dissociation (Cf. 3.4.4 and 4.5.2.1, example 3 above). It is represented by Philips' distinguishing the job which articles of incorporation do into two categories: those within the State, and those outside the State. Then, he defines what those articles do (that is, give someone the right to exist and/or do the business after that). Accordingly, both distinction and definition collaborate to yield dissociation in this maneuver.
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The fifth maneuver which Philips makes in his turn is analyzed below: MR. PHILLIPS: Yes, Justice Sotomayor. And -and the last thing I would say with respect to that was the conforming amendments with respect to the Agricultural Workers Protection Act, there's a situation where the Department of Labor, which used to engage in adjudication as well, was divested of that authority. It seems quite unlikely Congress meant to give that authority to the States and take it from the Department of Labor. JUSTICE SCALIA: I don't see the problem in -in diverse adjudication. Wouldn't there be a Federal question presented if a -- if a company claimed that it was deprived of the ability to do business because of a mistaken interpretation of Federal law, that the person it hired was not an authorized person? MR. PHILLIPS: But Arizona doesn't purport JUSTICE SCALIA: Wouldn't that be a Federal question that -- that could be MR. PHILLIPS: Well, Arizona doesn't purport to be enforcing Federal law here. It has an independent State law basis for the actions that it takes. So that would not arise under Federal law, Justice Scalia. JUSTICE SCALIA: Doesn't the State law basis refer to the Federal law? MR. PHILLIPS: No, it -- actually, I don't think it JUSTICE SCALIA: I thought it tracked it. MR. PHILLIPS: No, it -- well, it tracks it, but it doesn't incorporate it. It doesn't purport to be -- to be applying it. It's the same standards, but it's still a matter of State law. It's not a Federal -- it's not Federal -- it doesn't arise under Federal law. I'd like to reserve –
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A: No rule of reasonableness has been violated here (Cf. 3.2.1 above). Effectiveness, in turn, is analyzed as follows: a. Topical Potential: Here there are: 1. ASs: The type of AS which is employed in this maneuver is argument from analogy. This scheme has the following structure of inference (Cf. 2.2.1 above), in which the analogy is made between the authority given to the States and to that of the Department of Labor: Major Premise: The authority which Congress gives to the States is the analogous to the one given the Department of Labor. Minor Premise: What is true with the authority given to the States is true with the one given to the Department of Labor. Conclusion: Therefore, the authority works in a similar way in both cases. The finding in this component matches the findings listed on Table (18) and Figure (17) below. Together, they fulfill the second aim of this study (that is, Trace the most common types of argumentation schemes frequently employed in American civil and criminal court trials). For the verification or rejection of the associated hypothesis, see below. 2. Reasoning: The type of reasoning employed here is deductive (Cf. 2.3.1.1.1 above): - Congress gives authority to the States in terms of adjudication.
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- The authority given to the States is similar to counterpart given to the Department of Labor. - Therefore, the Department of Labor has authority in terms of adjudication. The finding here, in addition to those found out in the last maneuver made by Philips, and the first and third maneuvers made by Katyal, and the first, second and third maneuvers made O'Grady below go along with what is manifested on Table (19) and Figure (18) below. Together, they fulfill the third aim in this work (i.e. Uncover the most common type of reasoning relied on in the data under analysis). For the verification or rejection of the associated hypothesis, see below. 3. Fallacy: No fallacy has been committed in this maneuver as no rule of reasonableness has been violated. This finding, in addition to the ones investigated in the first maneuver made by Katyal, and the second maneuver made by O'Grady, as well as the ones found on Table (57), are compatible with those listed on Table (20) and Figure (19) below. Together, they fulfill the fourth aim in this work (Show the various types of fallacies committed in the aforementioned trials). For the verification or rejection of the associated hypothesis, see below. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used in this maneuver (Cf. 4.2.3 above). B: Here we have:
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1. Type: Probative relevance is the kind which is employed in this maneuver. Here, Philips keeps on using propositions which help to prove his standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components of this cube has played a role in this maneuver. C: The mode of SM in this maneuver, as with the previous one, is that of dissociation (Cf. 3.4.4 and 4.5.2.1, example 3 above). It is instantiated by Philips' distinguishing between tracking the Federal law and incorporating it. According to Justice Scalia, tracking is a unitary notion, whereas Philips defines it in another way. According to Philips, this embraces moving the general framework of the Federal law, yet the State has, at the same time, its own way applying it on the basis of what goes along with the particular context of the State itself. This makes dissociation implemented by means of both distinction and definition. Below is the last maneuver which Philips makes: CHIEF JUSTICE ROBERTS: Well, except well, you're just kind of blinking over the savings clause: except through licensing and similar laws. So that's not a real reservation by Congress of this power to itself. MR. PHILLIPS: Well, if you -- if you interpret the savings clause as I do, which means truly as a supplement to Federal -- Federal adjudication, then it is a very narrow limitation on that basis, because at that point you've already invoked the entirety of the Federal scheme, and it doesn't modify the balance on those broader legal issues, Your Honor.
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A: Rule 7 of reasonableness has been violated here (Cf. 3.2.1 above). The analysis of fallacies within effectiveness below will make this violation clearer. Effectiveness, in turn, is analyzed as: a. Topical Potential: Here there are: 1. ASs: The type of AS which is employed in this maneuver is argument from analogy (Cf. 2.2.1 above). The analogy is made between the savings clause and the Federal scheme: Major Premise: The savings clause as interpreted by Philips is a supplement to the Federal scheme. Minor Premise: What is true with the Federal scheme is true with the savings clause. Conclusion: Therefore, the savings clause as interpreted by Philips has similar interpretation of the Federal scheme. 2. Reasoning: The type of reasoning employed here is deductive (Cf. 2.3.1.1.1 above): - The Federal scheme provides a balance on broader legal issues. - The savings clause as interpreted by Philips is a supplement to the Federal scheme. - Therefore, Philips interpretation of the savings clause provides a balance on broader legal issues. 3. Fallacy: The fallacy from consequences is committed in this maneuver. It is embodied by confusing facts with value judgements: "It is true because I want it to be true", that is, when Philips tells the Justice that (Unless you interpret the savings clause as I do, there will not be a balance on broader legal issues), he
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imposes his own value judgement as a yardstick against which things can go right. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No figure of speech has been used in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Philips' persistent use of propositions which help to advance and prove his standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the folds of this cube has played a role in this maneuver. C: The mode of SM in this maneuver is that of analogy. It is viewed as such on the aforementioned criterion that every AS is a mode of SM by itself in addition to what is proposed by OT (cf. 4.5.2.1, example 1 above). The following is the first maneuver made by Katyal, the second petitioner, in the second stage of this trial: GENERAL KATYAL: Thank you, Mr. Chief Justice, and may it please the Court: Nearly a quarter of a century ago, Congress declared Federal employer sanctions central, not peripheral, to the policy of immigration law. Congress broadly swept away State and local laws, pre-empting any sanction upon those who employ
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unauthorized aliens, with the sole exception being a mere parenthetical for licensing and similar laws. CHIEF JUSTICE ROBERTS: Just to pose there, we've had a little discussion about what licensing laws are, but we haven't talked at all about those last two words, "and similar laws." It seems to me that whatever wiggle room or ambiguity there may be in saying whether this is a license or not, Congress swept pretty broadly. It said, not just licensing laws, but licensing and similar laws. GENERAL KATYAL: First let me tell you, Mr. Chief Justice, what we think a licensing law is and then deal with the "similar" question. We think a licensing law, as Congress defined it in IRCA, was the traditional licensing laws that were in place in 1986. Those were largely farm labor contractor laws. They were aimed at fitness to do business, and they had a few essential characteristics in those laws. They CHIEF JUSTICE ROBERTS: I'm sorry. Let me just -- I mean, businesses had to have licensing laws pretty much across the board, right? You couldn't set up a -- I don't know -- an electrical contracting business if you didn't -- weren't licensed to do business or met the requirements for an electrician. It wasn't just agricultural work. GENERAL KATYAL: Oh, absolutely. And -- but I think that this licensing law looks very different from the ones you were referring to or the farm labor contractor ones, for a number of reasons. The first is licensing laws issue licenses. They're generally about the issuance of licenses, not simply ones in which licenses are revoked. Second, they are ones in which the issuance of the license, the criteria for issuance, is the same as the criteria for revocation, because they're A:
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No rule of reasonableness has been violated here (Cf. 3.2.1 above). Effectiveness, in turn, is analyzed as: a. Topical Potential: Here there are: 1. ASs: The type of AS which is employed in this maneuver is argument from analogy (Cf. 2.2.1 above). The analogy is made between the Congress' definition of licensing law and the traditional licensing laws that were in place in 1986: Major Premise: The Congress definition of licensing laws is similar to the traditional peers that were in place in 1986. Minor Premise: What is true with the traditional is true with the more recent. Conclusion: Therefore, both work in a similar way. 2. Reasoning: The type of reasoning employed here is deductive (Cf. 2.3.1.1.1 above): - Traditional licensing laws, which were in place in 1986, were largely farm labor contractor laws. - The Congress definition of licensing laws is similar to the traditional ones. - Therefore, the Congress licensing laws are farm labor contractor laws. 3. Fallacy: No fallacy has been committed in this maneuver as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated.
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c. Presentational Devices: No presentational devices have been used in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Katyal's continual use of propositions which help to advance and prove his standpoint (See the excerpt above). 2. Approach: Relevance Cube: Domain relevance is the fold which is at stake in this maneuver. It is crystallized by what Chief Justice Roberts' indicates: "we've had a little discussion about what licensing laws are", whereby he hints at what has been formerly mentioned in Philips' argumentation. C: The mode of SM in this maneuver, as with the previous two, is that of dissociation (Cf. 3.4.4 and 4.5.2.1, example 3 above). It is instantiated by Katyal's distinguishing between the concept of licensing law as employed in some field and those employed in the farm labor or contractor ones. He does so by means of defining what licenses laws do (that is, issue licenses and what the criteria of such licenses are). It follows that dissociation is achieved by means of distinction and definition at the same time. Below is the second maneuver which Katyal makes in his turn: CHIEF JUSTICE ROBERTS: You don't disagree that whether or not a company hires illegal workers is related to quality or -- or ability to do business or qualification?
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GENERAL KATYAL: A State could certainly make that part of its genuine fitness to do business law. Now, here Arizona hasn't done that. And we know that because the criteria for issuance of the license are entirely divorced from the criteria for revocation of the license. And if Arizona really believed, Mr. Chief Justice, what you're saying, which is that it's relevant to the -- the violation is relevant to whether they can do business or not, they allow every single one of these entities to get the license. JUSTICE SOTOMAYOR: Your argument sounds to me like look at the law and see what its purpose is. If the purpose is to regulate undocumented aliens, then it's struck down. If it happens to put its revocation provisions in its licensing law, then it's okay. GENERAL KATYAL: Justice JUSTICE SOTOMAYOR: It doesn't make much sense GENERAL KATYAL: Justice Sotomayor, I'm not talking about purpose. I'm saying look at the face of the statute and see what is being JUSTICE SOTOMAYOR: The face of the statute talks only about if you hire undocumented aliens, your license is revoked. GENERAL KATYAL: Right. So that looks like a punishment statute. There are essentially two boxes here. There is the – A: Three rules of reasonableness have been violated here (Cf. 3.2.1 above): 1. Rule 6: Through the use of presupposition. 2. Rule 7: Via making a hasty generalization; and 3. Rule 5: By means of magnification.
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All of these will be clearer when analyzing fallacies in the domain of effectiveness below: a. Topical Potential: Here there are: 1. ASs: The type of AS which is employed in maneuver is the slippery slope argument. This can be shown through its structure of inference (Cf. 2.2.9 above): First Step Premise: Whether or not a company hires illegal workers is related to quality or ability to do business or qualification. Recursive Premise: Admitting this would plausibly lead to allowing every single entity to get the license. Bad Outcome Premise: Allowing every single entity to get the license is a bad outcome. Conclusion: Whether or not a company hires illegal workers should not be related to quality or ability to do business. 2. Reasoning: The type of reasoning employed here is inductive (Cf. 2.3.1.1.2 above): - Whether or not a company hires illegal workers is related to quality or ability to do business or qualification. - Admitting this would lead to allowing every single entity to get the license. - Therefore, every single entity will get the license. In fact, the different entities can get the license by means of requirements not necessarily those mentioned by Chief Justice Roberts. 3. Fallacy: Three fallacies are committed in this maneuver:
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1. Mentioning the proposition (The criteria for issuance of the license are entirely divorced from the criteria for revocation of the license) as part of the set of the already agreed upon starting point, whereas it is not so. This is done through the use of existential presupposition represented by the use of the verb "know". 2.
The fallacy of hasty generalization which ensues from
generalizing on the evidence of too few observations: Every single entity will get the license if quality or ability to do business is taken as the basis for hiring workers. 3. The fallacy of magnifying what has been left unexpressed. This is implemented by describing the statute which dictates that (if you hire undocumented aliens, your license is revoked) as a punishment statute, whereas in fact this is what law says. Differently put, the law states that if someone wants to hire aliens, then s/he should have their official documents. Otherwise, her/his license will be revoked. This has nothing to do with punishment; it is a matter of complying with or violating law. Yet, Kaytal has magnified what is a lawful matter into a form of punishment. b. Audience Demand: In this maneuver, audience demand has not been kept to. This is instantiated by violating the sixth rule of this aspect. Violating this rule results in making the speech act fail to fulfill the right role, that is, defend the standpoint in a way which makes the other party continue arguing it. This is supported by what Justice Sotomayor's says: "It doesn't make much sense", i.e. Katyal's argumentation does not make much sense.
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c. Presentational Devices: Two metaphors are found in this maneuver: 1. Divorced: to describe the unrelatedness between the criteria for issuance and revocation of licenses; and 2. At the face of the statute: to describe what the statute apparently means. B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Katyal's continual use of propositions which help to advance and prove his standpoint (See the excerpt above). 2. Approach: Relevance Cube: Component relevance is at issue in this maneuver. It becomes at stake by what Justice Sotomayor's says: "It doesn't make much sense", i.e. Katyal's argumentation does not make much sense. C: We have a conventional mode of SM in this maneuver. Accordingly, the mode of SM in this example is that of the slippery slope (Cf. 4.5.2.1, example 1 above). What comes next is the third maneuver made by Katyal: JUSTICE SOTOMAYOR: At the time the statute was passed, there were many, many State laws that adjudicated revocation of licenses. Perhaps not many had addressed the issue of hiring undocumented aliens, but many State laws existed that independently adjudicated revocations. What in the legislative history or in
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the words of the statute show that Congress intended in any way to limit those adjudications? GENERAL KATYAL: Well, it's undoubtedly the case that without the parenthetical, the mere parenthetical savings clause, that Arizona-like laws would be swept away as sanctions, that these are sanctions imposed. So the question is whether the licensing law phrase saves that. And I think it saves the Federal -- State adjudication, and I think the answer to that is no, because to read the statute that way is to permit all of those States to have their own laws, and it's undoubtedly the case that Congress wanted to sweep away the De Canas-style State statutes that were in place that imposed sanctions on employers. And so the – CHIEF JUSTICE ROBERTS: Counsel, just so I get -- make sure I understand your approach. You're saying that Arizona had a law saying you have to have a license to do business, and then it became aware of a problem it wasn't aware of before -- it found out that a lot of employers were employing child labor, and they didn't know they would do that -- and they say we can revoke your license if you're determined to have employed child labor; that that would not be okay? A: Rule 2 and Rule 7 of the reasonable conduct are violated in this maneuver (Cf. 3.2.1 above). This is achieved by: a. The axiomatic presentation of a standpoint; and b. By suggesting that a bad course of action will occur if the statute
is read in that way.
This will be clearer when analyzing fallacies in the domain of effectiveness below: a. Topical Potential: Here there are:
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1. ASs: The type of AS which is employed in maneuver is the slippery slope argument. This can be shown through its structure of inference (Cf. 2.2.9 above): First Step Premise: Reading the statute as meaning that licensing law phrase saves the Arizona-like laws as imposed sanctions should be brought about. Recursive Premise: Reading the statute like that would plausibly lead to permitting all of those States to have their own laws. Bad Outcome Premise: Permitting all of those States to have their own laws is a bad outcome. Conclusion: Reading the statute in such a way should not be brought about. 2. Reasoning: The type of reasoning employed in this maneuver is deductive (Cf. 2.3.1.1.1 above): - Reading the statute as meaning that licensing law phrase saves the Arizona-like laws as imposed sanctions would permit the States to have their own laws. - The statute has been read in such a way. - Therefore, all of those States should have their own laws. 3. Fallacy: The fallacy which is committed in this maneuver is that of evading the burden of proof. It is implemented by the axiomatic presentation of Katyal's standpoint engendered by the use of the word "undoubtedly" twice in “Well, it's undoubtedly the case that without the parenthetical” and “because to read the statute that way is to permit all of those States to have their own laws, and
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it's undoubtedly the case that Congress wanted to sweep away” respectively. b. Audience Demand: In this maneuver, this aspect is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been employed in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Katyal's continual use of propositions which help to advance and prove his standpoint (See the excerpt above). 2. Approach: Relevance Cube: Relational relevance is what has been found out in this maneuver. More specifically, it is by means of reacting to the standpoint that this fold is activated. However, this reacting has been done in a roundabout way, that is to say, instead of asking Katyal to clarify more, Chief Justice Roberts says: "so I make sure I understand your approach", and keep on stating what Katyal was saying. C: As with the previous maneuver whereby it has been emphasized before that every AS is a mode of SM by itself, this maneuver moves on the same track. Thus, the mode of SM in this example is that of the slippery slope (Cf. 4.5.2.1, example 1 above). The following is the first maneuver made by O'Grady, the respondent, in the second stage of the trial:
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JUSTICE SOTOMAYOR: I'm -- doesn't it frustrate the congressional intent when the Federal law says that the I-9 can be used for no purpose other than the Federal adjudication of whether a violation has occurred or not? Doesn't it frustrate that law to have the States raise a defense that depends on forcing someone to disclose something that the Federal law protects? I mean, this is a vicious circle. Federal law says you can't do the I-9 for -- you can't use it for any purpose other than the Federal adjudication. Now you're creating a defense that says you have to supply us with something that Federal law otherwise protects from disclosure. MS. O'GRADY: Your Honor, we don't think that the Federal law prohibits the use of an I-9 -- of the I-9 -- an employer's use of the I-9 in a State proceeding, that these can be used under the Federal proceeding or under the State. But, beyond that, if at some point in an actual enforcement action it was determined that Federal law did have that impact, they would still have that defense available to them. They would just have to, you know, prove it up in a different way other than use the form. JUSTICE SOTOMAYOR: That doesn't answer my point. Doesn't it frustrate Federal law when the Federal law says that I-9 can be used for no purpose other than the Federal adjudication of the status of employees? I think that's MS. O'GRADY: Here -- here's what the law says: It may not be used for purposes other than for enforcement of this chapter. And we believe that a State enforcement action, under the authority for preserving sanctions through licensing and similar laws, would fall within that. So we think they should be able to use that; the employer should be able to use that.
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JUSTICE ALITO: Isn't there -- isn't there a difference between saying it may not be used for any purpose other than for enforcement of this chapter and other provisions of Federal law, on the one hand, and saying, on the other hand, it may not be used for any purpose other than in a Federal proceeding? The enforcement -- the I-9 certainly could be used in a Federal proceeding by the employer. Would that then -would that be used for the enforcement of the Federal law? I wouldn't think so. MS. O'GRADY: That's true, Your Honor. That's - that – A: Two rules of reasonableness have been violated here (Cf. 3.2.1 above): 1. Rule 4: This is uniquely achieved through violating two other rules: Rule 6, with the use of presupposition; and Rule 2 by means of shifting the burden of proof onto the other party. 2. Rule 8: Via confusing the attributes of the whole with the parts. All of these will be clearer when analyzing fallacies in the domain of effectiveness below: a. Topical Potential: Here there are: 1. ASs: Argument from an established rule is the scheme which is relied on in this maneuver (Cf. 2.2.2 above). Here, the rule around which the argumentation is centered is that of the 1-9 form of the Federal Law. 2. Reasoning: The type of reasoning employed here is deductive (Cf. 2.3.1.1.1 above):
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- The Federal Law does not prohibit the use of 1-9 in a State proceeding. -Arizona has a 1-9 proceeding as a State. - Therefore, the Federal Law does not prohibit the use of 1-9 in Arizona. 3. Fallacy: In fact, the fallacies committed in this maneuver are salient as will be shown below. There are four fallacies occurring as a result of violating two rules only. However, two of these fallacies are major, the other are minor. This division is set in place on the basis of what is finally produced out of the violation. This will become more explicit when uncovering the strategies by means of which all of those fallacies are committed: 1. The first major fallacy flows from violating Rule 4. This violation, in turn, is represented by violating two other rules: - Rule 6: Mentioning the proposition “They would just have to, you know, prove it up in a different way other than use the form” as part of the set of the already agreed upon starting point, whereas it is not so. This is done through the use of existential presupposition represented by the use of the verb "know". - Rule 2: Escaping the obligation to defend a standpoint, this involves shifting the burden of proof onto the other party “They would just have to prove it in another way…”. Committing these two minor fallacies yield committing the major fallacy of irrelevant argumentation, that is, the aforementioned violation of Rule 4. In this fallacy, a standpoint other than the one at
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issue is being defended. This becomes very clear when recalling Justice Sotomayor's question and O'Grady's answer: Justice Sotomayor: Doesn't it frustrate Federal law when the Federal law says that I-9 can be used for no purpose other than the Federal adjudication of the status of employees? O'Grady: Your Honor, we don't think that the Federal law prohibits the use of an I-9 -- of the I-9 -- an employer's use of the I-9 in a State proceeding, that these can be used under the Federal proceeding or under the State. But, beyond that, if at some point in an actual enforcement action it was determined that Federal law did have that impact, they would still have that defense available to them. They would just have to, you know, prove it up in a different way other than use the form. This makes the two exchanges topically relevant to each other and not probatively. Moreover, relational relevance is activated by the Justice's reaction that O'Grady's reply does not answer the former's question. 2. The second major fallacy is the fallacy of division which is delivered by violating Rule 8. This is triggered by attributing a property of the whole to the component parts. This is clarified by referring to what the Justice says and how O'Grady responds rephrases it respectively: The Justice: The Federal law says that the I-9 can be used for no purpose other than the Federal adjudication. O'Grady: It may not be used for purposes other than for enforcement of this chapter.
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What the justice mentions is the framework of the Federal adjudication in general, whereas O'Grady limits some attributes of this framework to some part of the law, i.e. "this chapter". Accordingly, O'Grady wants to embrace a State enforcement action within that part only, whereby he cuts some of the features of the whole and attach them to the component part. b. Audience Demand: In this maneuver, audience demand is not kept to. This is represented by violating the sixth rule of this aspect. Violating this rule results in making the speech act fail to fulfill the right role, that is, defend the standpoint in a way which makes the other party accepts it. This is supported by what Justice Sotomayor's says: "That doesn't answer my question". c. Presentational Devices: No figures of speech have been employed in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Topical relevance is the kind which is employed in this maneuver. This has been discussed in detail before. 2. Approach: Relevance Cube: Relational relevance (that is, supporting a sequel) is at stake in this maneuver. C: This maneuver yields dissociation as the mode of SM (Cf. 3.4.4 and 4.5.2.1, example 3 above). It is achieved by O'Grady's distinguishing and defining what the Federal law says. Generally, that law, as Justice Sotomayor states, says that 1-9 can be used for no purpose other than the Federal adjudication of the status of
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employees. O'Grady, in turn, redefines the Federal adjudication as "enforcement of this chapter". As such, dissociation is arrived at here by means of both distinction and definition. What follows is the second maneuver which O'Grady makes in his defense: JUSTICE GINSBURG: I don't -- I don't get into any pre-emption or not, but it's -- Arizona wants to use a Federal resource. And the Fed makes it available if the employer can use it voluntarily, but not mandatorily. How can -- how can Arizona set the rules on the use of a Federal resource? MS. O'GRADY: Your Honor, we can -- as long as it's not a burden to the objectives of Congress, we think that we can require employers within our jurisdiction to use E-Verify. JUSTICE SCALIA: Do -- do you make it mandatory? MS. O'GRADY: Well, our statute says you shall use E-Verify. We don't impose a penalty against employers who fail to use it. The consequences are the same as they are under Federal law. JUSTICE SCALIA: You just -- you just don't get the safe harbor. Isn't that the only consequence? MS. O'GRADY: That's right. You don't get the safe harbor under E-Verify. A: No rule of reasonableness has been violated here (Cf. 3.2.1 above). Effectiveness, in turn, is analyzed as: a. Topical Potential: Here there are: 1. ASs: Two ASs are employed in this maneuver: argument from verbal classification (Cf. 2.2.5 above), and argument from analogy (Cf. 2.2.1 above). The first, as with the other maneuvers
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exploiting this scheme, makes use of the vague nature of this scheme. This is clear when claiming that (as long as it's not a burden to the objectives of Congress), whereby such objectives draw not clear-cut borderlines for what makes or does not make a burden.
The
analogy, that is the second scheme, in turn is made between the consequences of the E-Verify system as proposed by Arizona's statute and their counterpart under Federal law: Major Premise: The consequences of E-Verify under Federal law are the same as those under the State statute. Minor Premise: What is true with the Federal law is true with the State statute. Conclusion: Therefore, both work in a similar way. 2. Reasoning: The type of reasoning employed here is deductive (Cf. 2.3.1.1.1 above): - The consequences of E-Verify under Federal law are the same as those under the State statute. The former does not impose penalties on employers who fail to use E-Verify. - What is true with the Federal law is true with the Arizona statute. - Therefore, the State statute cannot be said to impose penalties against employers who fail to use it (i.e. E-Verify). 3. Fallacy: No fallacy has been committed in this maneuver as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated.
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c. Presentational Devices: No presentational devices have been used in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by O'Grady's persisting on using propositions which help to advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been at question in this maneuver. C: In accordance with what has been established before, and since we have two ASs in this maneuver, we have a combinatory mode of SM. It consists of both argument from verbal classification and that of analogy (Cf. 4.5.2.1, example 2 above). Now it is time to analyze the third maneuver as made by O'Grady: CHIEF JUSTICE ROBERTS: So you think you are home free under State law? MS. O'GRADY: To the extent that you would -should be home free and you'd have the benefit of that good-faith defense. CHIEF JUSTICE ROBERTS: It's an affirmative defense under both. MS. O'GRADY: Yes, Your Honor. But having the JUSTICE BREYER: The main point -- I mean, I'll check that. I think maybe I was mistaken, perhaps, in that I was looking at the other section. MS. O'GRADY: That's right.
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JUSTICE BREYER: But then we're still stuck with this enormous discrepancy in penalty. I mean, I'm characterizing it as enormous, but it seems like the -you know, it's even on discrimination versus under the Federal law. It's not even -- your business is out to lunch, gone, and on the other side it has nothing. What about that one? MS. O'GRADY: I think, Your Honor, that that is the natural consequence of the savings clause that Congress itself adopted. A: The second rule of reasonableness has been violated here (Cf. 3.2.1 above). This is implemented by formulating the standpoint in a way that makes it immune to criticism. This will be clarified enough when dealing with effectiveness, especially fallacies: a. Topical Potential: Here there are: 1. ASs: The scheme which is employed in this maneuver is argument from verbal classification. Again, the vague nature of this type is taken advantage of in order to advance the standpoint (Cf. 2.2.5 above). Put another way, O'Grady responds to what the Justice asks by means of invoking something which does not have watertight borderlines, that is, "the extent to which someone should be home free …". 2. Reasoning: Employing this scheme yields deductive reasoning (Cf. 2.3.1.1.1 above): - The general law standards assure to employees being home free. - The State law is part of the general.
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- Therefore, the State law assures to employees being home free. 3. Fallacy: Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is reflected by O'Grady's formulating the standpoint in a way that makes it immune to criticism by means of using the word "natural" in “that that is the natural consequence of the savings clause that Congress itself adopted” to describe the consequence that savings clause which the Congress itself adopted. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used in this maneuver (Cf. 4.2.3 above).
B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by O'Grady's persisting on using propositions which help to advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been at question in this maneuver. C: As produced more than once before, a conventional mode is found out here (Cf. 4.5.2.1, example 1 above).This makes the mode
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of SM which this maneuver comes up with is that of verbal classification. Now, the floor is handed over to the fourth maneuver made by O'Grady: JUSTICE BREYER: I said yes, I've got broad licensing -- but let's deal with the part where you look at their explanation as to why they put those words there. MS. O'GRADY: Okay. First, the farm labor contractor is simply an example, and I think it says "such as" an example of the type of licensing provisions that existed at this time that addressed that. So that's not an all-inclusive universe of sanctions that -- of -- of all the licensing laws that might be subject to this. They also don't specifically say there has to be a prior Federal adjudication. That sentence has passive voice, "has been determined," without specifying who is making that determination, and it specifically refers to State and local processes that provide for the suspension and revocation of State licenses. And then the sentence goes -- then there's a following sentence that says, you know, further, we don't intend to disrupt laws such as these forestry and other, you know, fitness to do business. We think this is a fitness to do business law in that we are establishing as a State standard that if you engage in this conduct of knowingly employing unauthorized aliens, we are going to have the ability to take an action against that license that we have given you to do business in our jurisdiction. So we think we fit within that last sentence of the -- of the A: The sixth rule of reasonableness has been violated here (Cf. 3.2.1 above). This is accomplished through the use of presupposition.
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This will be clarified enough when dealing with effectiveness, especially fallacies: a. Topical Potential: Here there are: 1. ASs: The scheme which is employed in this maneuver is argument from sign. This can be made clear via applying its structure of inference (Cf. 2.2.3 above): Major Premise: Generally, fitness to do business means that you have the right to take an action against the license whose holders knowingly employ unauthorized aliens. Minor Premise: The State standard allows you the ability to take an action against the license whose holders knowingly employ unauthorized aliens. Conclusion: Therefore, the State standard is a fitness to do business. 2. Reasoning: Unlike the maneuver analyzed so far, this one employs two types of reasoning: E-contrario (Cf. 2.3.1.1.5) and deductive (Cf. 2.3.1.1.1) above. The first of these paves the way for the second. This can be illustrated as follows: 1. E contrario: When O'Grady starts her turn, she first reacts to what Justice Beyer has said by claiming that what has been mentioned is just an example through the use of "such as". Then, she contends that the invoked laws do not "specifically say there has to be a prior Federal adjudication". This means that O'Grady literally explains what has been said to her by the Justice. After that, she distinguishes the passive voice "has been determined" in order to eliminate any specification that might be erroneously interpreted. Such kind of
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literal reasoning has led to advancing the standpoint about "fitness to do business". And here the role of the deductive reasoning comes. 2. Deductive: This is found in the part about "fitness to do business". It becomes clear when looking again at the structure of inference of the scheme which is employed to launch this maneuver (See AS above). 3. Fallacy: Erroneously mentioning a proposition as part of the already agreed upon starting points is the fallacy which results from violating Rule 6 of the reasonable conduct. It is implemented by using existential presupposition through the use of the verb "know" twice in “then there's a following sentence that says, you know, further, we don't intend to disrupt laws such as these forestry and other, you know, fitness to do business”. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by O'Grady's persisting on using propositions which help to advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been at question in this maneuver.
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C: The mode of SM which this maneuver yields is that of sign. As with the similar maneuvers, this is considered as such on the basis that each AS is itself a mode of SM (Cf. 4.5.2.1, example 1 above).
5.2.2.2 SM in Criminal Cases Below are the pieces of information identifying the case that has been selected as an illustrative criminal example:
11-770
Case No :
Case Name :
Bailey v. United States
Arguers
on
Behalf
of
Petitioner
and
Respondent Shanmugam vs. Wall
Respectively :
Summary :
In Michigan v. Summers, the Supreme Court held that police officers executing a search warrant were allowed to detain people on the premises while they conducted the search. This case limits that to the "immediate vicinity" of the place being searched, so police searching a basement apartment couldn't search a man leaving from near the apartment in a car.
It is necessary to bring to notice that the mechanism which has been followed in analyzing the civil case above is itself the one that will be followed in analyzing the criminal counterpart. This helps avoid repeating what has already been presented as far as the technique of analysis is concerned, i.e. to avoid redundancy. In other words, the components of the model whose analysis has been
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elaborated on in the civil case will not be treated as such in the criminal case; this is specifically applied to two components: 1. ASs: Whereby only the type of AS is spotted; the structure of inference of any scheme will not be repeated as it has been discussed before (Cf. 5.2.2.1 above). Nevertheless, when an AS is employed for the first time in the data under scrutiny, then and only then its structure of inference will be treated with as done with its civil peer. 2. Reasoning: Whereby only the type of reasoning employed in the maneuver (of the criminal case) will be highlighted without any further explanation as done before (Cf. 5.2.2.1 above).
5.2.2.2.1 Establishing Facts of the Case As pointed out before (Cf. 5.2.2.1.1 above), this stage is a three-level stage which consists of the following components (represented by the letters A, B, C) respectively: Below is the only maneuver made by Shanmugam, the petitioner, in this stage: MR. SHANMUGAM: Thank you, Mr. Chief Justice, and may it please the Court: In Michigan v. Summers, this Court established a categorical exception to the default Fourth Amendment requirement of probable cause. Under Summers, officers executing a search warrant for contraband may detain individuals they encounter at the scene while they are in the course of executing the warrant. This case presents the question whether the Summers exception also permits officers to detain individuals who have left the scene before the warrant is executed. Because
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individuals who have left the scene do not pose an immediate threat to the safe and efficient completion of the search, the court of appeals erred by permitting their detention absent probable cause or even individualized suspicion. Its judgment should therefore be reversed. A: The tenth rule of reasonableness, that is, the usage rule, has been violated in this maneuver (Cf. 3.2.1 above). This is accomplished through the use of ambiguous reference. This finding is compatible with what is given on Table (27) and Figure (26) below. They collectively fulfill the first aim of this study (i.e. Show whether reasonableness is frequently kept to or violated in the data under scrutiny). For the verification or rejection of the associated hypothesis, see below. The violation of the aforementioned rule will be clarified enough when dealing with effectiveness, especially fallacies: a. Topical Potential: Here there are: 1. ASs: There is a combination of two ASs configured here. It is represented by: 1. First employing argument from an established rule whereby the Summers establishment of the "categorical exception to the default Fourth Amendment requirement of probable cause Under Summers, officers executing a search warrant for contraband may detain individuals they encounter at the scene while they are in the course of executing the warrant " is invoked (Cf. 2.2.2 above). This scheme paves the way for the other AS which has been employed:
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2. Argument from verbal classification (Cf. 2.2.5 above).This is mainly represented by the use of "immediate" threat. In this word, the borderlines between what is immediate and what is not are fuzzy, i.e. the vague nature of this scheme has been taken advantage of. 2. Reasoning: Both of these ASs share the same type of reasoning: deductive (Cf. 2.3.1.1.1 above). The finding here, in addition to those found in the majority of maneuvers analyzed below, and the ones listed on Table (57), go along with what is presented on Table (29) and Figure (28) below. Together, they fulfill the third aim of this study (that is, Uncover the most common type of reasoning relied on in the data under analysis). For the verification or rejection of the associated hypothesis, see below. 3. Fallacy: The fallacy of ambiguous reference has been committed in this maneuver. It is depicted by Shanmugam's use of the following: - “Individuals who have left the scene before the warrant is executed”. Then, this sentence is immediately followed by: - “Because individuals who have left the scene do not pose …” . In the second sentence no explicit reference is made to the identity of the individuals as done in the first sentence, that is, the post modifying clause (before the warrant is executed) has been omitted. This omission causes ambiguity because there will be two interpretations to the second sentence: - Either the individuals which have been referred to in the first sentence, which seems farfetched because if that what Shanmugam
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means, he could
use various reference expressions: "such
individuals", "those individuals", etc; and - Or individuals in general no matter whether those who left the scene or not. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. This finding, in addition to the majority of those analyzed below go along with what is found on Table (31) and Figure (30) below. Collectively, they fulfill the fifth aim of this work (that is, Identify the way via which audience demand is appealed to in the data of the study). For the verification or rejection of the associated hypothesis, see below. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). This finding, in addition to the majority of the ones analyzed below and those presented on Table (57), are compatible with what is listed n Table (32) and Figure (31) below. They all achieve the sixth aim of this study (i.e. Highlight the presentational device(s) most frequently employed in the data under scrutiny). For the verification or rejection of the associated hypothesis, see below. B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of propositions which help him advance and prove the standpoint (See the excerpt above). This finding, along with the majority analyzed
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below and those listed on Table (57), match what is given on Tables (33) and (34) and shown in Figures (32) and (33) below. They all fulfill the seventh aim of this study (i.e. Point out the way whereby dialectical relevance is utilized in the data of the work). For the verification or rejection of the associated hypothesis, see below. 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode of SM which this maneuver yields is a combination of the two ASs analyzed above. Put differently, the mode of SM is that of the established rule and the verbal classification (Cf. 4.5.2.1, example 2 above).
5.2.2.2.2 Arguing the Case The maneuvers in this stage will be analyzed in the same way done previously, that is, the three levels indicated by the model (and instantiated by the letters A, B, C) respectively: What follows is the first maneuver made by Shanmugam in this stage: JUSTICE SOTOMAYOR: Counsel, the two tests, yours seem to be the immediate vicinity test, and the Second Circuit is as soon as practical test. Your adversaries point out that the Second Circuit test actually focuses on the police officer's conduct, which should be the focus of reasonableness or unreasonableness. Your test just creates an artificial line that is subject to as much play as the other. Why isn't the focus on police conduct the right focus?
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MR. SHANMUGAM: Well, let me explain, Justice Soto1ayor, first, the sort of theoretical basis for why we're offering this line, and, second, say a word about the comparative merits of the two tests. First of all, with regard to the theoretical basis for the line, our fundamental submission to this Court is that Summers does not create a police entitlement; it is instead a rule of necessity and should be confined to situations in which a detention serves search-related purposes. And in our view, the justifications for a detention evaporate once an individual has left the immediate vicinity of the premises. And, again, that's because in those circumstances a detention serves no interest in ensuring the safe and efficient completion of the search because the individual poses no immediate threat to the safe and efficient completion of the search. JUSTICE KAGAN: And what is the immediate vicinity? How would you define that? MR. SHANMUGAM: Well, ordinarily, the immediate vicinity will be the physical bounds of the property; but, there may be circumstances in which an individual who is just outside the physical bounds of the property should nevertheless be detained, so to provide – A: Rule 2 of the reasonable conduct has been violated here (Cf. 3.2.1 above). It is accomplished through the use of "ordinarily", as will be made clear below when analyzing effectiveness which has to do with: a. Topical Potential: Here there are: 1. ASs: As with the previous maneuver, this one employs two ASs. These two are:
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1. Argument from an established rule (Cf. 2.2.2 above). This can be shown in quoting what Shanmugam literally says: "Summers does not create a police entitlement; it is instead a rule of necessity and should be confined to situations in which a detention serves search-related purposes"; and 2. Argument from verbal classification (Cf. 2.2.5 above). This is embodied by the use of "immediate" which has been employed in the same way analyzed in the previous maneuver. The only difference is that in this maneuver the word "immediate" is used to describe "vicinity" and “threat”, whereas in the previous to refer to "threat" only. 2. Reasoning: Just like the previous maneuver, deductive reasoning is the type which is found out here (Cf. 2.3.1.1.1 above). 3. Fallacy: Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by axiomatically presenting the standpoint through the use of the word "ordinarily" in “Well, ordinarily, the immediate vicinity will be the physical bounds of the property”. b. Audience Demand: In this maneuver also, the audience demand is kept to because none of its rules has been violated. c. Presentational Devices: Metaphor is the figure of speech which is employed in this maneuver. It is crystallized in the use of the verb "evaporate" to describe "the justifications for a detention once an individual has left the immediate vicinity". This metaphor is meticulously used to show the uselessness of the aforementioned
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justifications for a detention, that is to say, instead of using the verb "disappear",
for
instance,
to
describe
those
justifications,
Shanmugam uses a verb which shows the impossibility of making use of them because what evaporates can never come back. If the verb "disappear" has been used for example, it will make a weaker standpoint, for what has disappeared can appear again under one circumstance or another. B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. It is supported by Shanmugam's continual use of propositions which help to advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been at question in this maneuver. C: We have a combinatory mode of SM in this example. It consists of the argument from an established rule and the one from verbal classification. This is as such on the basis of what is found out in the ASs analyzed above (Cf. 4.5.2.1, example 2 above). Shanmugam's second maneuver in this stage is the following: CHIEF JUSTICE ROBERTS: Well, it requires more unless they want the guy to get away, I guess, right? MR. SHANMUGAM: Well, let me say something about this prospect that the individual will return. We think that the appropriate analysis here is the analysis that this Court set out in Arizona v. Gant.
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And this Court, in Arizona v. Gant, suggested that where a categorical rule is involved, you have to look at the class of cases to which the rule would be extended to see if the justifications apply. Now, with regard to this class of individuals who have left the scene, we believe that it is simply unlikely either that such an individual who has left the scene will be aware of the presence of police, or that such an individual will return in an effort to disrupt the search. JUSTICE KAGAN: Well, what if he were aware, or what if there was reason to think he might be aware, would you then allow the police to do what the police did here? MR. SHANMUGAM: Well, we wouldn't. And that's simply because we believe that this should be a categorical analysis. And so, again, you're looking at this entire class of cases where individuals have left the scene to determine whether the justifications for the Summers rule apply. Now, let me provide a – A: The third rule of reasonableness, that is, the standpoint rule, has been violated in this maneuver (Cf. 3.2.1 above). This is accomplished through showing exaggeration. This will be clear enough when dealing with effectiveness, especially fallacies: a. Topical Potential: Here there are: 1. ASs: There is a combination of two ASs detected here. It is represented by: 1. First employing argument from an established rule (Cf. 2.2.2 above). It is represented by the argument:" And this Court, in Arizona v. Gant, suggested that where a categorical rule is involved, you have
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to look at the class of cases to which the rule would be extended to see if the justifications apply". This scheme paves the way for the other AS which has been employed: 2. Argument from analogy (Cf. 2.2.1 above).This is mainly instantiated by the use of "you're looking at this entire class of cases where individuals have left the scene to determine whether the justifications for the Summers rule apply". 2. Reasoning: Both of these ASs share the same type of reasoning: deductive (Cf. 2.3.1.1.1 above). 3. Fallacy: The fallacy of misrepresenting the original standpoint is committed in this example. It is embodied by Shanmugam's use of the word "entire" in “you're looking at this entire class of cases where individuals”, which exaggerates the original standpoint whereby what is claimed is that the application of a categorical rule is conditioned by the "class", not the "entire" class, of cases to which the rule might be applied. Using "entire" extends such an application to all the members of a class which is farfetched because every norm (rule) has its own exceptions, as such wording the standpoint in such a way makes the application of a specific rule kind of impossible to achieve. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have:
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1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of propositions which help him advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode of SM which this maneuver yields is made up of the two ASs analyzed above: the mode of SM is that of the established rule and analogy (Cf. 4.5.2.1, example 2 above). What comes next is the third maneuver made by Shanmugam in this stage: JUSTICE KENNEDY: What would you think generally in my hypothetical? There'd be hundreds of other facts, but – MR. SHANMUGAM: Well, ordinarily, when an individual is seen leaving the scene -- and suppose -let me provide – JUSTICE KENNEDY: Just -- just before the search, yes. MR. SHANMUGAM: Well, of course, the individual who is leaving the scene doesn't necessarily know that the search is about to take place. JUSTICE KENNEDY: Right. MR. SHANMUGAM: And so, to provide a hypothetical that will hopefully put some meat on the bones of this issue, suppose that an individual leaves a house, and he actually sees police officers sitting in a car, whether marked or unmarked, outside the house. And it is clear that he has seen the officers. He waves at the officers and then ambles down the street.
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I don't think that there would be any doubt but that that individual could not be detained unless he did something more; unless, for instance, he engaged in flight at that point, at which point he could perhaps be detained under Terry. And so we simply submit that the analysis should be no different in a situation in which the purpose -- the reason why the officers are sitting outside the house is because another group of officers is about to execute the search warrant. Of course, that individual JUSTICE GINSBURG: But Terry -- Terry is an open question in this case. It wasn't decided below, but it was raised. So -- so you're arguing we shouldn't extend Summers, but that leaves this very case susceptible to the assertion that this was a legitimate Terry stop. MR. SHANMUGAM: That is correct, Justice Ginsburg. And just to be clear about how these two doctrines work together, our submission to this Court is that within the search zone, within the immediate vicinity of the premises, the rule of Summers applies, so that, if officers encounter an individual within that zone while they are in the process of executing the warrant, a detention is permissible absent probable cause or individualized suspicion. Outside that search zone, ordinary Fourth Amendment principles apply. And, of course, under the Fourth Amendment, detentions of persons have to be justified by some degree of individualized suspicion; probable cause for a full-fledged arrest, individualized suspicion for a more limited detention under Terry. As the highlighting in this excerpt shows, this is a compound maneuver which consists of two major sub-ones. The first major submaneuver, that is the italicized, is as follows:
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A: Rule 2 of the reasonable conduct has been violated here (Cf. 3.2.1 above). It is accomplished through the axiomatic presentation of the standpoint. It will be made clear below when analyzing effectiveness which has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from sign is the scheme which is employed in this maneuver (Cf. 2.2.3 above). It is mainly engendered by the use of "suppose that an individual leaves a house, and he actually sees police officers…". 2. Reasoning: The scheme employed above makes use of the presumptive reasoning as the kind which achieves its goals (Cf.2.3.1.1.3 above). 3. Fallacy: Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by axiomatically presenting the standpoint via the use of the word "ordinarily" in “Well, ordinarily, when an individual is seen leaving the scene -- and suppose -let me provide –”. b. Audience Demand: In this maneuver also, the audience demand is kept to because none of its rules has been violated. c. Presentational Devices: Metaphor is the figure of speech which is employed in this maneuver. It is manifested by the use of "put some meat on the bones of this issue".
B: Here we have:
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1. Type: Probative relevance is the kind which is employed in this maneuver. It is supported by Shanmugam's continual use of propositions which help to advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been at question in this maneuver. C: Argument from sign is the mode which this maneuver has come up with (Cf. 4.5.2.1, example 1 above). The second major-sub maneuver, i.e. the underlined one, is analyzed as: A: Reasonableness is kept to in this maneuver as none of its rules has been violated (Cf. 3.2.1 above). Effectiveness, in turn, has to do with: a. Topical Potential: Here there are: 1. ASs: There is a combination of two ASs formed here. It is represented by: 1. First employing argument from verbal classification (Cf. 2.2.5 above). It is demonstrated mainly by the phrase "immediate vicinity" which has been discussed before. This scheme opens the door for the other AS which is: 2. Argument from an established rule (Cf. 2.2.2 above).This is mainly represented by the use of " the rule of Summers applies, so that, if officers encounter an individual within that zone while …".
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2. Reasoning: Both of these ASs share the same type of reasoning: deductive (Cf. 2.3.1.1.1 above). 3. Fallacy: No fallacy is committed as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: A combinatory mode of SM is what this maneuver yields in line with the two ASs just analyzed: verbal classification and established rule (cf. 4.5.2.1, example 2 above). Below is the fourth maneuver made by Shanmugam: JUSTICE ALITO: Well, what would you think of this situation? Officers have a no-knock warrant, and they're -- they're at the house. They see somebody come out the door and start to go down the steps, doesn't look like that person has noticed their presence. Now, they have the choice, if you prevail, of either rushing in or stopping the person within the curtilage, in which case they
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could detain the person, or they could allow the person to walk some distance outside of the site of the house and then stop the person, and that would allow them to execute the warrant without endanger -- without enhancing the danger to them from potentially armed people inside or allowing the destruction of evidence. What -- in that situation, what argues in favor of your rule, that if they want to detain this individual, they have to rush in and stop him before he leaves the premises? MR. SHANMUGAM: The justifications articulated by this Court in Summers, Justice Alito, and in particular what we really believe are the primary justifications, first, minimizing the risk of harm to officers executing the warrant; and, second, facilitating the orderly completion of the search. And let me say a word about – JUSTICE ALITO: Well, without interrupting -- in that situation, officer safety is undermined by your rule because it requires them to stop the person on the premises and, therefore, tip off those inside, potentially, about their presence. MR. SHANMUGAM: But they also have the choice not to engage in a detention at all. And I think the fundamental problem with the court of appeals' rule and with the government's submission to this Court is that it really entails the conclusion that once officers see the individual leaving the house, they have an entitlement to detain that individual, with the only open question being where and how they go about effectuating the detention. But we simply believe that the justifications for the detention don't attach to the individual. They are search-based justifications. And the mere fact that an individual is seen leaving a house that is about to be searched in our view is insufficient to give rise to reasonable suspicion.
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A: Two rules of reasonableness are violated in this example (Cf. 3.2.1 above): 1. Rule 6: Through circular reasoning; and 2. Rule 2: Through hermetic formulation of the standpoint. Both will be made clear below when analyzing effectiveness which is concerned with: a. Topical Potential: Here there are: 1. ASs: Argument from analogy is the scheme which is employed in this maneuver (Cf. 2.2.1 above). It is mainly engendered by the use of "the justifications articulated by this Court in Summers…" which is invoked as a response to Justice Alito's question in his first turn (See the excerpt above). This finding, as well as those found in the first five maneuvers made by Wall below, match the findings manifested on Table (28) and Figure (27) below. Together, they fulfill the second aim in this work (that is, Trace the most common types of argumentation schemes frequently employed in American civil and criminal court trials). For the verification or rejection of the associated hypothesis, see below. 2. Reasoning: This scheme employs the deductive type of reasoning as its basic tool (Cf.2.3.1.1.1 above). 3. Fallacy: In line with the two rules violated above, two fallacies are committed: 1. Begging the question is the fallacy which results from violating the sixth rule in the way found in this maneuver. It is reflected by the circular reasoning detected in Shanmugam's argument:
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- First, he talks about the primary justifications of "minimizing the risk of harm to officers executing the warrant; and, second, facilitating the orderly completion of the search. And let me say a word about". Differently put, the justifications which he invokes are about officers who execute the warrant, yet when asked, by the Justice, about the clash between what "his" rule says and the justifications he makes use of, he soon suggests what the Justice himself is discussing "But they also have the choice not to engage in a detention at all". 2. Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by formulating the standpoint in a way that makes it immune to criticism. This is clearly shown by the use of the word "fundamental" in "And I think the fundamental problem with the court of appeals' rule and with the government's submission to this Court is that…". b. Audience Demand: In this maneuver also, the audience demand is kept to because none of its rules has been violated. c. Presentational Devices: No figure of speech has played a role in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. It is supported by Shanmugam's continual use of propositions which help to advance and prove the standpoint (See the excerpt above).
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2. Approach: Relevance Cube: None of the three components has been at question in this maneuver. C: Argument from analogy is the mode which this maneuver has come up with (Cf. 4.5.2.1, example 1 above). This finding, as well as those found in the first five maneuvers made by Wall below, match the findings given on Tables (35) and (36) and shown in Figures (34) and (35) below. Together, they achieve the eighth aim of this work (that is, Distinguish the modes of strategic maneuvering most frequently yielded in such trials). For the verification or rejection of the associated hypothesis, see below. The following is Shanmugam's fifth maneuver: JUSTICE SOTOMAYOR: Counsel, can I come back to the facts that my colleagues have raised and break it down implicating the Terry question? Here, the officers had a report of something in the house, and they saw the defendant -- two people leaving. I know Terry hasn't been decided, but why do you think -- just the stop, not the detention, not the bringing them back to the house, why do you think that just stopping them was wrong? MR. SHANMUGAM: Under Terry? JUSTICE SOTOMAYOR: Under Terry. MR. SHANMUGAM: Sure. Well, and first of all, I should preface what I'm about to say by noting that the court of appeals itself didn't reach the Terry issue, and the government doesn't advance that issue in its merits brief. JUSTICE SOTOMAYOR: But the court below did.
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MR. SHANMUGAM: So that would be an issue that would be open on remand. And let me say why on remand – JUSTICE SCALIA: Excuse me. Just the stop would be -- but -- but they did more than just stop them. They – MR. SHANMUGAM: Well, that's right. The stop and the – JUSTICE SCALIA: -- they handcuffed them. JUSTICE SOTOMAYOR: Well, it goes back to if a police officer saw an individual leaving the house and was concerned about them tipping someone off, et cetera, what would be the problem with the officer stopping the person around the corner, holding them, making sure people got in and then letting them go. MR. SHANMUGAM: And just to be clear, because there are the two separate issues. There's the question of the stop and the question of the detention. And there would be a separate question about whether under Terry a detention of a particular length might or might not be permissible. But as to the stop, the argument that we would make on remand if we were to prevail before this Court would be that here what you have is insufficient to meet the reasonable suspicion standard. And what I assume that the government would argue is that the combination of the search warrant and the fact that the individual was seen leaving the premises that were about to be searched, and as to which there was probable cause to believe that contraband was present, and the fact that my client met the extremely generic description provided by the confidential informant, would be sufficient to give rise to reasonable suspicion. Now, clearly we don't think -- I was just going to say, clearly we don't think that either of those factors standing on its own would be sufficient.
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The question would be whether that combination of factors under the facts and circumstances of this case would be sufficient, and we would submit that that combination is insufficient as well. A: Reasonableness is kept to in this maneuver as none of its rules has been violated (Cf. 3.2.1 above). Effectiveness, in turn, has to do with: a. Topical Potential: Here there are: 1. ASs: There is a combination of two ASs formulated here. It is instantiated by: 1. Argument from sign (Cf. 2.2.3 above). It is demonstrated mainly by " And what I assume that the government would argue is that the combination of the search warrant and the fact that …". This scheme opens the door for the other AS which is: 2. Argument from position to know (Cf. 2.2.4 above).This is mainly represented by the use of "the generic description provided by the confidential informant". More specifically, the scheme which is at issue here is argument from testimony whose structure of inference is formed as follows: CONCLUSION: Petitioner has contraband in his house. PREMISE: Witness a (i.e. confidential informant) states that the petitioner has contraband in his house. 2. Reasoning: Both of these ASs share the same type of reasoning: presumptive (Cf. 2.3.1.1.3 above). It is necessary to show the relationship between this type of reasoning and the argument from testimony. It might be thought that what the witness says can
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always be taken for granted, but this is not true in all cases. What the witness says becomes at question whenever a new piece of evidence or information appears. Consequently, this ongoing possibility of the emergence of new pieces of evidence is what builds the link between this scheme and the presumptive reasoning. 3. Fallacy: No fallacy is committed as no rule of reasonableness has been violated. This finding, in addition to the fifth and sixth ones made by the petitioner and the third, fifth, sixth and seventh by the respondent are compatible with what is given on Table (30) and Figure (29) below. They, together, fulfill the fourth aim in this study (i.e. Show the various types of fallacies committed in the aforementioned trials). For the verification or rejection of the associated hypothesis, see below. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver.
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C: The mode of SM which this maneuver produces is that of the argument from sign and the other from position to know (Cf. 4.5.2.1, example 2 above). Below is the sixth maneuver that Shanmugam makes: JUSTICE GINSBURG: If they did do -- if they did do a Terry stop, and in the process of that stop the police officer got a call that said, we found lots of contraband, guns in this house, at that point they could have turned the Terry stop into an arrest, couldn't they? MR. SHANMUGAM: They could very well, with one caveat, and that caveat is simply that the circumstances under which the contraband is found might be relevant to the analysis of whether or not there is probable cause, because the question would be whether or not there is probable cause to believe that the individual constructively possessed the contraband at issue. A: Reasonableness is kept to in this maneuver as none of its rules has been violated (Cf. 3.2.1 above). Effectiveness, in turn, has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from verbal classification is the scheme which is detected in this maneuver (Cf. 2.2.5 above). It is represented by "and that caveat is simply that the circumstances under which the contraband is found might be relevant to the analysis of whether or not there is probable cause", whereby there is no watertight limit which specifies the minimum extent to which the
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contraband is regarded relevant to the formation of a probable cause or not. 2. Reasoning: Both of these ASs share the same type of reasoning: deductive (Cf. 2.3.1.1.1 above). 3. Fallacy: No fallacy is committed as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: Argument from verbal classification is the mode which this maneuver comes up with (Cf. 4.5.2.1, example 1 above). Shanmugam's seventh maneuver is the following: JUSTICE ALITO: Could you explain what you mean by the immediate vicinity? Is it based on -- on property line? Is it some absolute distance from the -the entrance to the premises? Is it based on how far you could see from the -- the site of the search?
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MR. SHANMUGAM: I think ordinarily it will be within the physical bounds of the property. So but -- but if, for instance, officers saw an individual coming out of his house and he walked out and he just happened to step -- step off the curb into the road before the officers got to them, we would say that that would satisfy the immediate vicinity standard. JUSTICE SCALIA: Well, physical bounds of the property is -- is too much. I mean, you know, what if it's a farm and it's a 50-acre farm? MR. SHANMUGAM: Well, and the point of – JUSTICE SCALIA: I think you are much better off, I think your submissions sometimes say immediate vicinity. MR. SHANMUGAM: Well, we -- we proposed to this Court the immediate vicinity standard in large part because it really is comparable to similar limits this Court has adopted for other Fourth Amendment -JUSTICE SCALIA: I like that much better than boundaries of the property. A: Rule 2 of the reasonable conduct has been violated here (Cf. 3.2.1 above). It is accomplished through the use of "ordinarily", as will be made clear below when analyzing effectiveness which has to do with: a. Topical Potential: Here there are: 1. ASs: In this maneuver also, two ASs are combined. They are: 1. Argument from verbal classification (Cf. 2.2.5 above). This is found in the phrase “immediate vicinity” which has been discussed earlier ; and
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2. Argument from analogy (Cf. 2.2.1 above). This can be clearly found in the sentence “the immediate vicinity standard in large part because it really is comparable to similar limits this Court has adopted for other Fourth Amendment”. 2. Reasoning: Just like the previous maneuver, deductive reasoning is the type which is found out here (Cf. 2.3.1.1.1 above). 3. Fallacy: Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by axiomatically presenting the standpoint through the use of the word "ordinarily" in “I think ordinarily it will be within the physical bounds of the property”. b. Audience Demand: In this maneuver also, the audience demand is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. It is supported by Shanmugam's continual use of propositions which help to advance and prove the standpoint (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been at question in this maneuver.
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C: The mode which this maneuver yields is that of persuasive definition (Cf. 3.4.1 and 4.5.2.1, example 3 above). This is to be explained as follows: When Justice Alito asks Shanmugam about the latter’s definition of the “immediate vicinity”, Shanmugam first uses “physical bounds” to illustrate his idea. Then a couple of lines later, he uses the word “curb” synonymously with “physical bounds”. By so doing, the analogy-provoking capacity of this word (that is, curb) becomes activated. This is so because ‘curb’ means “something that controls and puts limits on something” (Hornby, s.v. curb), that is to say, it means limit in the general sense not necessarily physical. This gives Shanmugam the space to extend his “immediate” vicinity outside the physical bounds, and here exactly where the analogyprovoking capacity resides. It is as such because it is ambiguous to which category “curb” belongs, i.e. whether physical or not and consequently the arguer (Shanmugam) can interchange the two terms in a way implying that there is a similarity between the two terms. What is next is Shanmugam's eighth maneuver: CHIEF JUSTICE ROBERTS: We talked about -we talked about officer safety. What about the safety of others? Suppose the place being searched is adjacent to a playground and there are, you know, dozens of children playing in the playground. The police are worried there would be a shootout and they want to detain the person, so they say: Well, let's wait until he gets a block down the street and detain him there for the safety of the kids. That has -- they can't do that? MR. SHANMUGAM: Officers will naturally take
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precautions in situations like that. They will go in with-CHIEF JUSTICE ROBERTS: Yes, the precaution is let's wait until he's a block down the street because it will be a lot safer. Can they do that and be covered by Summers or not? MR. SHANMUGAM: They cannot be covered by Summers, but what they can do is either follow the individual for the period of time during which they are executing the warrant, or they can detain that individual if he returns to the scene. And again, all of the examples that the government cites -- and there aren't that many of them -- but the examples that the government cites are examples of individuals who arrive at the scene and when they realize that their place of residence is being searched, they become obstreperous; and to the extent that there is a concern about the threat posed to the safety of officers in those circumstances, we would submit that the obvious solution is to make clear that Summers permits the detention of individuals who arrive at the scene; and officers routinely do establish perimeters when they are executing search warrants. And so when they – A: Reasonableness is not stuck to in this maneuver owing to violating Rule 2 of the reasonable conduct (Cf. 3.2.1 above). It is accomplished through the axiomatic presentation of the standpoint, as will be made clear below when analyzing effectiveness which has to do with: a. Topical Potential: Here there are: 1. ASs: A combination of two ASs is formed here. It is represented by:
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1. Argument from an established rule which is employed at the beginning and end of this example (Cf. 2.2.2 above).This is found in “They cannot be covered by Summers” which is employed at the beginning, and “we would submit that the obvious solution is to make clear that Summers permits the detention of individuals who arrive at the scene” which is employed at the end of this maneuver. 2. Argument from verbal classification (Cf. 2.2.5 above). It is manifested by the sentence "to the extent that there is a concern about the threat posed to the safety of officers in those circumstances" where that “extent” is fuzzy, i.e. the vague nature of this scheme has been taken advantage of here. 2. Reasoning: Both of these ASs share the same type of reasoning: deductive (Cf. 2.3.1.1.1 above). 3. Fallacy: Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by axiomatically presenting the standpoint through the use of the word "naturally" in “Officers will naturally take precautions in situations like that”. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of probatively
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relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: Praeteritio is the mode which this maneuver comes up with (Cf. 3.4.3 and 4.5.2.1, example 3 above). It is demonstrated by Shanmugam's denial of committing himself to a certain proposition via the use of ‘but’. The proposition whose commitment is denied is found in the following sentence “all of the examples that the government cites -- and there aren't that many of them -- but the examples that the government cites are examples of individuals who arrive at the scene …”. In other words, what is intended to be stated here is that the examples which the government cites are not exhaustive and, as a result, they can neither be invoked nor can they be applied to this case. The ninth maneuver which Shanmugam makes in this stage is: JUSTICE ALITO: Well, what if the person comes out the door and walks -- and has walked 50 feet down the block within sight of the entrance at the time when the police are entering to make the arrest? Would that person be in the immediate vicinity? MR. SHANMUGAM: Well, I think that the natural limit on the immediate vicinity rule is imposed by the underlying justification, namely, that officers should have the authority to encounter individuals -- to detain individuals they encounter while they are in the course of executing the warrant.
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And so if in your hypothetical, Justice Alito, the search team is marching up to the house, and they encounter the individual 50 feet away from the door or the property line while they are in the course of doing so, the justifications of Summers kick in at that point. That individual is aware of the fact that the police are about to search his house, and, as such, that individual poses a threat to the safe and efficient completion of the search. A: Reasonableness is violated through violating Rule 2 here (Cf. 3.2.1 above). It is embodied by the axiomatic presentation of the standpoint as will be clarified below within the domain of effectiveness that has to do with: a. Topical Potential: Here there are: 1. ASs: A combination of two ASs is formulated here. It is instantiated by: 1. Argument from an established rule (Cf. 2.2.2 above). It is found in "the immediate vicinity rule is imposed by the underlying justification …"; and 2. Argument from sign (Cf. 2.2.3 above).This is mainly represented by the use of " And so if in your hypothetical, Justice Alito, the search team is marching up to the house, and they encounter the individual 50 feet away from the door or the property line while they are in the course of doing so, the justifications of Summers kick in at that point. That individual is aware of the fact that the police are about to search his house, and, as such, that individual poses a threat to the safe and efficient completion of the search”.
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2. Reasoning: Two types of reasoning are employed in this maneuver: deductive and presumptive respectively (Cf. 2.3.1.1.1 and 2.3.1.1.3 above). The first is linked to the first AS used, i.e. argument from an established rule; the second, in turn, is connected to the argument from sign. 3. Fallacy: Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by axiomatically presenting the standpoint through the use of the word "natural" in “I think that the natural limit on the immediate vicinity rule is imposed by the underlying justification”. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode of SM which this maneuver yields is engendered by the simultaneous employment of argument from an established rule and argument from sign (Cf. 4.5.2.1, example 2 above).
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The last maneuver which Shanmugam's makes is the one when he is given three minutes to rebuttal what has been presented by the respondent. However, to avoid confusion, this maneuver is analyzed below owing to the fact that the position where any maneuver the petitioner makes is out of place in this study; what is panted for are the strategies which realize any maneuver wherever it takes place: MR. SHANMUGAM: First of all, having suggested in its brief that the police may detain any individual with a connection to the place to be searched under Summers, the government today falls back to the view that the police may detain any individual with an observed connection, suggesting that this Court can leave for another day the question of whether to detain people with a certain but non-observed connection. Leaving that aside, the government suggests on at least five occasions today that that observed connection is sufficient to give rise to reasonable suspicion. That was not the basis on which this Court adopted its categorical rule in Summers. If it had been, the discussion of the special law enforcement interests supporting the rule would have been entirely superfluous. And it's for that reason we would respectfully submit that the Court made clear in footnote 19 that Summers permits officers to detain individuals regardless of the quantum of proof justifying the detention of specific individuals. And this Court's subsequent cases applying Summers have made clear that Summers permits the detention of individuals with no apparent connection to the criminal activity being investigated.
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And that leads into my second point, which is that Terry will serve as a fallback in many of these cases to permit detentions of individuals who are seen leaving the premises, where there is a sufficient additional basis to give rise to reasonable suspicion. In fact, it may very well be the exception to the rule that you have a case in which there aren't sufficient additional articulable facts to give rise to reasonable suspicion. We would respectfully submit that this case falls within that exceptional category, but it really underscores why the expansion of Summers that the government is seeking is really unnecessary. I would just note, in response to a point that Justice Scalia made, that the fundamental flaw with the government's position is that it really can't be reconciled with any original understanding of the Fourth Amendment. There's no historical evidence suggesting that officers at the time of the founding or thereafter, when executing search warrants, detained the occupants of the premises. And the problem with the government's approach is that it really would convert any search warrant into a search and seizure warrant. It would really would suggest that there is a freestanding right to detain anyone with a connection or an observed connection to the place to be searched that operates alongside the warrant-conferred right to conduct the search. A: Two rules of reasonableness are violated here (Cf. 3.2.1 above): 1. Rule 7: By means of suggesting that a bad course of action will occur in case the government’s position is held; and
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2. Rule 2: Through presenting the standpoint in a way that makes I immune to criticism. Both of these rules will be clarified more within the domain of effectiveness that has to do with: a. Topical Potential: Here there are: 1. ASs: There is a combination of two ASs formulated here. It is represented by: 1. The slippery slope argument which is employed twice here (Cf. 2.2.9 above).This is mainly engendered by the use of: a. “the government today falls back to the view that the police may detain any individual with an observed connection, suggesting that this Court can leave for another day the question of whether to detain people with a certain but non-observed connection”, which is employed at the beginning of the maneuver; and b. "And the problem with the government's approach is that it really would convert any search warrant into a search and seizure warrant. It would really would suggest that there is a freestanding right to detain anyone with a connection or an observed connection to the place to be searched that operates alongside the warrantconferred right to conduct the search.”, which is employed at the end of the maneuver. 2. Argument from an established rule (Cf. 2.2.2 above). It is found in "we would respectfully submit that the Court made clear in footnote 19 that Summers permits officers to detain individuals regardless of the quantum of proof justifying the detention of specific individuals. And this Court's subsequent cases applying Summers
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have made clear that Summers permits the detention of individuals with no apparent connection to the criminal activity being investigated." 2. Reasoning: Two types of reasoning are employed in this maneuver: inductive and deductive respectively (Cf. 2.3.1.1.2 and 2.3.1.1.1 above). The first is linked to the first AS used, i.e. the slippery slope argument; the second, in turn, is connected to the argument from an established rule. 3. Fallacy: In line with violating two rules of reasonableness, two fallacies are committed in this maneuver: 1. The slippery slope is the fallacy which results from violating Rule 7 in the way done in this example. It is chiefly instantiated by the same arguments cited in the ASs discussed above. 2. Evading the burden of proof is the fallacy which results from violating Rule 2 of the reasonable conduct. It is implemented by presenting the standpoint in a way that makes it immune to criticism owing to its inability to be tested or evaluated which is mainly built through the use of the word "fundamental" in “that the fundamental flaw with the government's position is that it really can't be reconciled with any original understanding of the Fourth Amendment”. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above).
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B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Shanmugam's use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: We have a combinatory mode of SM in this example. It consists of the slippery slope argument and that from an established rule. This is as such on the basis of what is found out in the ASs analyzed above (cf. 4.5.2.1, example 2 above). The following is the first maneuver which Wall, the respondent, makes: MR. WALL: Justice Alito, your hypothetical is anything but. It comes very close to the facts of the Cochran case out of the Sixth Circuit. Police arrive at the scene. The occupant is known to carry a gun, and he has a guard dog. So, rather than walk up to the door, they wait for him to leave; but, by the time they can catch up to him, he's off of the bounds of the property, but he's still very close to the residence. They stop him. They take him back to the residence. He lets the officers in. He secures the dog, and they complete the search. I think that is a model law enforcement practice, and it is indistinguishable in any important respect from what went on in Summers. The justifications for detention apply equally to departing occupants when they are seen by officers leaving in the process of executing the
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warrant. But no, Justice Sotomayor, the government is not contending that other connections to the residence, other than that kind of observed connection by the officers, could justify a detention under Summers. CHIEF JUSTICE ROBERTS: Well, we don't have anything like that in this case. We have them getting into a car, driving almost a mile away and being stopped at that point. MR. WALL: Well, we do have, though, the officers seeing him departing the residence as they're executing the warrant. It's a no-knock warrant for a gun. And rather than stop him right outside the house because they don't know who else would be inside -CHIEF JUSTICE ROBERTS: As they're executing the warrant, I don't remember, was the -- did the individual know that they were executing the warrant in this case? MR. WALL: No. CHIEF JUSTICE ROBERTS: Oh, okay. MR. WALL: They had obtained the warrant. They had -- the team had – CHIEF JUSTICE ROBERTS: So the danger to them is not at all like the situation with the dog and the armed guy just off the property. MR. WALL: Mr. Chief Justice, I respectfully disagree. And the government would be happy to have this case decided by having the Court look at the Federal and state cases, look at the risks that are present in those cases, and deciding whether the interests of Summers are served in those cases. What we see in the cases is that -- take this very case, for instance. Petitioner is driving his friend home to meet a court-imposed probation curfew, and he is then returning to the house. I think the reasonable inference in the record is that he'll be back in a matter of minutes. So he –
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JUSTICE GINSBURG: And then Mr. Shanmugam says they could stop him. They could stop anybody. The search is ongoing. Somebody approaches the house; the police can stop that person. MR. WALL: But think how formalistic and odd that is, Justice Ginsburg, that the police see someone leaving, but, if they can't catch up to them on the bounds of the property, which has no reasonable relationship to the warrant here, which was for the premises, not for the -- for that property – JUSTICE GINSBURG: But – JUSTICE SCALIA: The threat is from anybody coming back to the house, not just the person who just left. MR. WALL: Oh, assuming – JUSTICE SCALIA: And surely the police, when they're conducting a search, post guards to prevent people from coming in. MR. WALL: They often do, Justice Scalia, but -JUSTICE SCALIA: I assume they always do. It seems to me there's no special threat from the person who -- who left the house. There's always a threat of somebody else coming into the house. MR. WALL: Justice Scalia, certainly in urban areas they do. I think it's more difficult where you have smaller police departments in rural areas. But the government's not disputing that posting sentries is a good idea. That doesn't begin to take care of the most serious cases, where people outside of the area of the search fire on or assault officers. So, for instance, in 2008 JUSTICE SOTOMAYOR: You're missing the point, which is that's going to happen regardless, meaning that risk exists whether the person left the minute you got there or a minute before or an hour before or two hours before. That's the whole point, which is the risk is extant no matter what.
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A: Reasonableness is not kept to by means of violating Rule 4 here (Cf. 3.2.1 above). It is embodied by making irrelevant argumentation as will be clarified below within the domain of effectiveness that has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from analogy is the scheme which is taken advantage of in this maneuver (Cf. 2.2.1 above). It is employed thrice: - “It comes very close to the facts of the Cochran case out of the Sixth Circuit”. - “I think that is a model law enforcement practice, and it is indistinguishable in any important respect from what went on in Summers”; and - “And the government would be happy to have this case decided by having the Court look at the Federal and state cases, look at the risks that are present in those cases, and deciding whether the interests of Summers are served in those cases”. 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above). 3. Fallacy: The fallacy of irrelevant argumentation is that which results from violating Rule 4 in the way Wall does. It is formulated in the exchange between Justice Scalia and Wall where the former asserts that the threat to the police always comes from the ones who are coming into the house and not those who come out. The latter, in his turn, specifies such a threat to urban areas which has
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nothing to do with the standpoint which the Justice advances: The threat is from the persons who come into, not out of, the house. The issue of urban or rural areas is not raised by the Justice. As mentioned before, this rule is to be analyzed on the basis of the notion of dialectical relevance with respect to the type and approach. However, to avoid repetition, this cube will be discussed in detail in its due component. b. Audience Demand: In this maneuver, the audience orientation is violated by violating Rule 6. By violating this rule, the speech act performed does not fulfill the right role it has to do, in this maneuver to show agreement/disagreement with the standpoint advanced by Justice Scalia. c. Presentational Devices: No presentational devices have been used here (Cf. 4.2.3 above). B: Here we have: 1. Type: Topical relevance is the kind which is employed in this maneuver. This is shown by Wall’s presenting the idea that there is a difference between the threat in urban and rural areas which is only topically relevant to the idea that the threat comes from people who come into the house. In other words, the point of contact between the two exchanges the topic of ‘threat’ only. What Wall advances is used neither to prove nor to disapprove what is advanced by the Justice. 2. Approach: Relevance Cube: Relational relevance is what has been at issue in this maneuver. More specifically, it is the
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supporting sequel to an argument that has been activated in this part. This is basically represented by Justice Sotomayor’s reaction to what Wall has said: “You’re missing the point, …”. C: The mode of SM which this maneuver yields is that of dissociation (Cf. 3.4.4 and 4.5.2.1, example 3 above). It is crystallized by distinguishing two types of threat: that in urban areas and its counterpart in the rural ones. It means that dissociation here is activated by means of distinction only and not definition, as the original notion of threat has not been commented on or redefined; it has only been distinguished into two different types. Below is Wall's second maneuver in this stage: JUSTICE KAGAN: And that's not an outlier case. It seems to me that the hypothetical I just gave you might very well be the more common case than the hypothetical that you gave me. So, you know, why isn't this just too broad a categorical rule? MR. WALL: Well, Justice Kagan, let me break that up into both parts. First, you know, as far as detaining people who have other connections to the home, I think you're right that some of the arguments that the Court adopted in Summers and that the government is making here could translate. And I think when those cases come to the Court, the Court will have to decide whether to recognize doctrines analogous to Summers or Terry in those contexts. But that's not what Summers is about. The connection that Summers discusses and approves is seeing someone leaving a home subject to a valid warrant for contraband. That's the only connection at issue here.
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A: Reasonableness is violated here through violating Rule 6 (Cf. 3.2.1 above). It is embodied by employing presupposition. This will be clearer within the domain of effectiveness that has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from analogy is the scheme which is heavily relied on in this maneuver (Cf. 2.2.1 above). It is made use of twice: - “I think you're right that some of the arguments that the Court adopted in Summers and that the government is making here could translate”; and - “The connection that Summers discusses and approves is seeing someone leaving a home subject to a valid warrant for contraband. That's the only connection at issue here.” 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above). 3. Fallacy: Erroneously mentioning a proposition as part of the already agreed upon starting points is the fallacy which results from violating Rule 6 of the reasonable conduct. It is implemented by using existential presupposition through the use of the verb "know" in “First, you know, as far as detaining people who have other connections to the home,…”. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: Metaphor is the figure of speech which is employed in this maneuver. It is crystallized in the use of the verb
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"translate" to describe "some of the arguments that the Court adopted in Summers and that the government is making here”. It is mainly used, instead of the verb “apply”, to indicate the improbable similarity between the two resembled things (that is, the arguments of Summers and those which the government is making now). It is used as a starting point to advance the partial analogy which Wall shows at the end of his maneuver (See the excerpt above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode which results from this maneuver is that of analogy in line with the scheme detected (Cf. 4.5.2.1, example 1 above). Wall's third maneuver is as follows: JUSTICE SCALIA: It doesn't give you a where. You need more than a who. You need a who and a where. MR. WALL: Well, the who is categorical. People you find on the premises or you see leaving the premises at a time when a magistrate has determined there's probable cause to believe a crime is being committed inside. The where, the location. Just like duration, just like use of force in the Muehler and Rotelli cases, those are subject to
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the general requirement of reasonableness under the Fourth Amendment. A: Reasonableness is kept to as none of its rules has been violated here (Cf. 3.2.1 above). Effectiveness, in its turn, has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from analogy is the scheme which is heavily relied on in this maneuver (Cf. 2.2.1 above). It is made use of in “Just like duration, just like use of force in the Muehler and Rotelli cases, those are subject to the general requirement of reasonableness under the Fourth Amendment”. 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above). 3. Fallacy: No fallacy has been committed as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No figure of speech has been employed in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively relevant propositions throughout his maneuver (See the excerpt above).
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2. Relevance Cube: None of the three components has been employed in this maneuver. C: The mode which results from this maneuver is that of analogy (Cf. 4.5.2.1, example 1 above). The fourth maneuver which Wall makes in this stage is: JUSTICE KAGAN: But what you're now saying is: Well, there's another class of people, they're going to work in the morning. And we've -there's -- there is no indication that they've seen the police officers; they're going to work. But we get to detain them, too, just because we have a warrant to search the house. And the question is why? MR. WALL: Justice Kagan, as far as we know, George Summers was going to work. I mean, George Summers was detainable, as was Petitioner here, on his view if we had caught him within the physical bounds of the property. The question is not, you know, how to apply it in that circumstance. It's does something meaningfully -meaningful change when he hits the sidewalk or the neighbor's yard? JUSTICE KAGAN: I mean, something meaningful very -- very much changes. Before, you're dealing with a problem of a person on the premises while you're trying to search the premises. And now you're talking about a person who is going to work, leaving the premises, letting you search the premises without any interference. MR. WALL: Justice Kagan, I don't think that explains why you couldn't let George Summers go on his way, and it doesn't explain why the Court in Summers didn't say, look, rather than roam the house, if it really is true that once we let you outside the front door or the front gate, you are no
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longer a danger and are likely only to be a hindrance, why not give you the option to leave. Turn them out, because on Petitioner's view, they're safe to go. And what the Court in Summers recognized is, no, important interests are served by detaining people in that circumstance. A: Reasonableness is violated here through violating Rule 6 (Cf. 3.2.1 above). It is embodied by employing presupposition. This will be clearer within the domain of effectiveness that has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from analogy is the scheme which is heavily relied on in this maneuver (Cf. 2.2.1 above). It is made use of twice: -
“George Summers was going to work. I mean, George
Summers was detainable, as was Petitioner here, on his view if we had caught him within the physical bounds of the property”; and - “I don't think that explains why you couldn't let George Summers go on his way, and it doesn't explain why the Court in Summers didn't say, look, rather than roam the house, if it really is true that once we let you outside the front door or the front gate, you are no longer a danger and are likely only to be a hindrance, why not give you the option to leave. Turn them out, because on Petitioner's view, they're safe to go. And what the Court in Summers recognized is, no, important interests are served by detaining people in that circumstance.” 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above).
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3. Fallacy: Erroneously mentioning a proposition as part of the already agreed upon starting points is the fallacy which results from violating Rule 6 of the reasonable conduct. It is implemented by using existential presupposition through the use of the verb "know" in “The question is not, you know, how to apply it in that circumstance”. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No figure of speech has been employed in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: Argument from analogy is the mode which this maneuver comes up with (Cf. 4.5.2.1, example 1 above). Wall's fifth maneuver in this stage is: JUSTICE SCALIA: -- what threat to the policemen can possibly exist? MR. WALL: I think the Texas officers in the Valdez case, which we cite in our briefs, would find it surprising, where they did let someone go
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from the scene, and she came back with an individual and started fighting with police. Look, I take Petitioner's point – JUSTICE SCALIA: Very unusual. MR. WALL: Justice Scalia – JUSTICE SCALIA: Very unusual. MR. WALL: -- it is true that only a foolhardy person would do it, but, unfortunately, that is a perfect description of many criminals who do not tend to be level-headed, rational actors. A: Reasonableness is kept to as none of its rules has been violated here (Cf. 3.2.1 above). Effectiveness, in its turn, has to do with: a. Topical Potential: Here there are: 1. ASs: Argument from analogy is the scheme which is heavily relied on in this maneuver (Cf. 2.2.1 above). It is manifested in “I think the Texas officers in the Valdez case, which we cite in our briefs, would find it surprising, where they did let someone go from the scene, and she came back with an individual and started fighting with police”. 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above). 3. Fallacy: No fallacy has been committed as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No figure of speech has been employed in this maneuver (Cf. 4.2.3 above).
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B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode which results from this maneuver is that of analogy (Cf. 4.5.2.1, example 1 above). The following is the sixth maneuver made by Wall in this stage: CHIEF JUSTICE ROBERTS: That's an argument in Summers I just don't understand. The argument is you can detain the people because they might want to give the officers assistance. Well, if they want to give them assistance, they don't have to be detained. MR. WALL: Well – CHIEF JUSTICE ROBERTS: It seems odd, you know, we're going to tie -- we're not going to tie you up -- we're going to keep you here, you can't leave because we think you might tell us where the drugs are. MR. WALL: Mr. Chief Justice, I mean, I think it is one of three legitimate law enforcement interests where you have someone for whom there is articulable and individualized suspicion to believe that they are connected to criminal activity handing over contraband rather than endanger officers.
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CHIEF JUSTICE ROBERTS: If they want to do that, they can. The question is whether you can detain them in the hope that they will decide to help you -MR. WALL: Well, and CHIEF JUSTICE ROBERTS: -- to give you the key to the cabinet. MR. WALL: -- and the argument in Summers is you can detain them because you've got reasonable suspicion. The question is, what are the interests served by the detention? And that is an interest served by detention. Now, we're not saying it's an independent basis to support it. These are people for whom, as a class, there's reasonable suspicion, which is why Summers carved out the rule that it did. Now, this -- the situation in this case and the Federal cases that we're seeing are not meaningfully distinguishable from Summers. You've got the same reasonable suspicion, same law enforcement interests, same minimal intrusion. There is no -- along no dimension is there a meaningful difference between this case and Summers. A: Reasonableness is kept to as none of its rules has been violated here (Cf. 3.2.1 above). Effectiveness, in its turn, has to do with: a. Topical Potential: Here there are: 1. ASs: A combination of two ASs is developed in this maneuver. It is made up of the following: 1. Argument from an established rule (Cf. 2.2.2 above). It is represented by “the argument in Summers is you can detain them because you've got reasonable suspicion”.
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2. Argument from analogy (Cf. 2.2.1 above). It is demonstrated by “the situation in this case and the Federal cases that we're seeing are not meaningfully distinguishable from Summers. You've got the same reasonable suspicion, same law enforcement interests, same minimal intrusion. There is no -- along no dimension is there a meaningful difference between this case and Summers”. 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above). 3. Fallacy: No fallacy has been committed as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: No figure of speech has been employed in this maneuver (Cf. 4.2.3 above). B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode which results from this maneuver consists of the two ASs investigated (Cf. 4.5.2.1, example 2 above).They are argument from the established rule and that of analogy.
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The seventh maneuver made by Wall is: JUSTICE SOTOMAYOR: So your -- your view is that Summers gave you -- entitled you to hold people merely for purposes of investigation MR. WALL: I – JUSTICE SOTOMAYOR: -- without any reasonable suspicion? That's really what your rule is saying. MR. WALL: My view is with the Court's on Summers. It's appropriate to consider the nature of the articulable and individualized suspicion on which the police based the detention of the occupant of a home subject to a search warrant. And what the Court said is, whether you're inside or whether you're on the front steps or the sidewalk, like George Summers, that reasonable suspicion exists. The police have placed you in the home at a time when a neutral magistrate has determined there's probable cause. And to be clear, we're not trying to blow the doors off of this exception. This is a very narrow exception. What we see time and again in the Federal cases is the same fact pattern: Someone leaves the house; the police catch up to them within a mile, but usually just within a few blocks; and, they return them to the scene. The police are not treating this as a sort of entitlement. This is not Gant, where the results are outstripping the rationale. A: Reasonableness is kept to as none of its rules has been violated here (Cf. 3.2.1 above). Effectiveness, in its turn, has to do with: a. Topical Potential: Here there are: 1. ASs: A combination of two ASs is developed in this maneuver. It is made up of the following:
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1. Argument from an established rule (Cf. 2.2.2 above). It is found in “My view is with the Court's on Summers…And what the Court said is, whether you're inside or whether you're on the front steps or the sidewalk, like George Summers, that reasonable suspicion exists. The police have placed you in the home at a time when a neutral magistrate has determined there's probable cause”. 2. Argument from analogy (Cf. 2.2.1 above). It resides in: - “whether you're inside or whether you're on the front steps or the sidewalk, like George Summers, that reasonable suspicion exists”; and -
“This is not Gant, where the results are outstripping the
rationale”. 2. Reasoning: Deductive reasoning is the type which is found in this example (Cf. 2.3.1.1.1 above). 3. Fallacy: No fallacy has been committed as no rule of reasonableness has been violated. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: Metaphor is the figure of speech which is employed in this maneuver. It is symbolized by the use of the “blow the doors off” to describe the process of invoking a particular exception to be applied to this case. B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively
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relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: The mode which results from this maneuver consists of the two ASs investigated (Cf. 4.5.2.1, example 2 above).They are argument from the established rule and that of analogy. Below is the last maneuver which Wall makes in his turn: JUSTICE GINSBURG: In this case, you couldn't think of a reason why they took him back to the scene. JUSTICE BREYER: Maybe he had a key to the -- to the place where they keep the drugs, the basement or something. JUSTICE SCALIA: He might have wanted to help in the search. JUSTICE BREYER: Is that fanciful? Is it fanciful that people who are searched open doors or – MR. WALL: It's far from being fanciful. The Sherrill case out of the Eighth Circuit, the Sears case out of the Eleventh Circuit, they came back and they unlocked doors so the police wouldn't have to make forcible entry. In Montieth out of the Fourth Circuit -CHIEF JUSTICE ROBERTS: Yes, but the question is whether you have to detain them to do something you're saying they'd want to do. MR. WALL: Mr. Chief Justice, we're not here saying that every time somebody could be helpful in a search you could go out and detain them. It is an exception to the normal probable cause requirement, but it's an exception analogous to Terry because you've got reasonable suspicion. And the question is there, okay, as a categorical
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rule, you know you've got reasonable suspicion for this entire group of people, current and recent occupants; what reasons do police have to detain them? And there are really good reasons. One, they tend to flee. And we see that in Cavazos out of the Fifth Circuit. Two, they provide assistance in the search; and three, they are often violent or aggressive individuals. I don't think it's irrelevant that the vast majority of search warrants for contraband are for guns and drugs, and you see a number of amici states in here saying: Look, this is a legitimate and important law enforcement practice for officers in a very dangerous and volatile situation in executing these warrants. And I think Petitioner takes those risks way too lightly, and will not -steadfastly refuses to engage the realities on the ground that we see in the cases. Judges and the Federal and state courts are grappling with this every day, and what these opinions reveal is that these risks cannot be so easily dismissed. They are serious and they are real, and we see them play themselves out across this entire set of cases. And what we don't see noticeably is the kinds of things that the Court tends to be worried about in Fourth Amendment cases: Abuse and police entitlement. Again and again, you see police detaining departing occupants a very short distance from a residence, returning them, not prolonging the detention, not engaging in exploitative questioning, and actually serving the three interests that the Court identified in Summers. And to be clear, Petitioner's solution is more than just a solution in search of a problem; it carries its own problem. It is severely underinclusive. It will not capture any number of cases where there are valuable law enforcement
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interests to be served. And it will produce very silly results in a number of cases where police can't catch up to a departing occupant for one reason or another until after he's crossed some magical gate, and they will have to sit on their hands until he returns so that they can do exactly what they would have done minutes or hours earlier if they'd been able to detain him. JUSTICE GINSBURG: They can follow him. MR. WALL: They can, but, Justice Ginsburg, tailing is a risky proposition, particularly in an urban area. And that doesn't even arguably begin to serve the interest in avoiding flight or facilitating efficient and orderly – JUSTICE SCALIA: All law enforcement would be a lot easier if we didn't have the doggone Fourth Amendment. I mean, the Fourth Amendment is an impediment to law enforcement. Of course it is. There -- there's no doubt about that. MR. WALL: Justice Scalia, if you start from the premise that the Fourth Amendment doesn't permit this, then I lose. But I think what the Court said in Summers is, what we -- this Court has already drawn a number of exceptions to the probable cause requirement in reasonable suspicion cases. This is another, and it serves very valuable interests in this case and others. CHIEF JUSTICE ROBERTS: Thank you, counsel. A: Rule 6 of the reasonable conduct is violated in this maneuver (Cf. 3.2.1 above). This is achieved by means of using arguments which are synonymous with the standpoint being debated. This will be clearer when analyzing effectiveness that has to do with: a. Topical Potential: Here there are:
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1. ASs: Two ASs are developed in this maneuver. They are: 1. Argument from analogy (Cf. 2.2.1 above). It is employed thrice: - “The Sherrill case out of the Eighth Circuit, the Sears case out of the Eleventh Circuit, they came back and they unlocked doors so the police wouldn't have to make forcible entry. In Montieth out of the Fourth Circuit -”. - “It is an exception to the normal probable cause requirement, but it's an exception analogous to Terry because you've got reasonable suspicion.”; and - “And there are really good reasons. One, they tend to flee. And we see that in Cavazos out of the Fifth Circuit”. 2. The slippery slope argument (Cf. 2.2.9 above). This is instantiated by the following argument: “And to be clear, Petitioner's solution is more than just a solution in search of a problem; it carries its own problem. It is severely under-inclusive. It will not capture any number of cases where there are valuable law enforcement interests to be served. And it will produce very silly results in a number of cases where police can't catch up to a departing occupant for one reason or another until after he's crossed some magical gate, and they will have to sit on their hands until he returns so that they can do exactly what they would have done minutes or hours earlier if they'd been able to detain him”. 2. Reasoning: Two types of reasoning interact in this maneuver: deductive and inductive reasoning respectively (Cf. 2.3.1.1.1 and 2.3.1.1.2 above).
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3. Fallacy: The fallacy of circular reasoning is committed in this example. It is embodied by the exchange between Justice Roberts and Wall whereby the former inquires about the reason of detaining individuals who can be helpful in a search warrant. The latter, in his turn, first denies this proposition (we're not here saying that every time somebody could be helpful in a search you could go out and detain them). Later on when Wall lists the reasons for detaining a particular group of people, he asserts in his second reason that “Two, they provide assistance in the search”. By so claiming, he actually affirms what the Justice is inquiring about, that is to say, people have to be detained because they provide assistance in the search. b. Audience Demand: In this maneuver, the audience orientation is kept to because none of its rules has been violated. c. Presentational Devices: Two figures of speech are used here: 1. Metaphor is the first figure of speech which is employed in this maneuver. It is symbolized by the use of the verb “grapple” to describe the seriousness of the issue of risks which Wall posits; and 2. Overstatement is the other presentational device employed in this maneuver. It is represented by the use of "severely" to refer to the under-inclusiveness of the petitioner's solution. B: Here we have: 1. Type: Probative relevance is the kind which is employed in this maneuver. This is supported by Wall’s use of probatively
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relevant propositions throughout his maneuver (See the excerpt above). 2. Approach: Relevance Cube: None of the three components has been employed in this maneuver. C: Praeteritio is the mode which this maneuver concludes (Cf. 3.4.3 and 4.5.2.1, example 3 above). It is demonstrated by Wall’s denial of committing himself to a certain proposition via the use of ‘but’. The proposition whose commitment is denied is found in the following sentence “Justice Scalia, if you start from the premise that the Fourth Amendment doesn't permit this, then I lose. But I think what the Court said in Summers is, what we -- this Court has already drawn a number of exceptions to the probable cause requirement in reasonable suspicion cases. This is another, and it serves very valuable interests in this case and others”. Differently put, the proposition which is implicitly communicated here is (that cannot be what the Fourth Amendment is about) owing to the rationale cited above.
5.3 Statistical Analysis The purpose behind this section is to statistically verify or reject the hypotheses of this work. It presents the results which have been arrived at by means of using Statistical Package of Social Science (SPSS) software, version 19, Chicago, USA. In that program, two types of statistics have been used: 1. Descriptive statistics: This includes frequencies and percentages.
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2. Inferential statistics: This includes applying the Chi- square (referred to as X2) in order to statistically compare between two or more variables. This equation is used because the data under scrutiny are non-parametric (i.e. non-measurable). They are represented by frequencies with different occurrences as clearly shown on the tables below. These results are introduced in tables and figures. The tables, on one hand, are divided into two main groups: those concerned with the first stage of the trial, and those with the second. Whether this or that, the tables are organized in a way which matches that whereby the components listed in the eclectic model are presented. Thus, the following are the elements whose statistics (whether descriptive or inferential) is presented: reasonableness, argumentation schemes, reasoning, fallacies, audience demand, presentational devices, dialectical relevance (type), dialectical relevance (approach), mode (conventional), and mode (non-conventional). Besides, those tables include two types of data which are found concomitantly: frequencies and percentages. The former (abbreviated as Fr.) are mainly utilized in the calculations of the Chi-square; the latter (symbolized as %) in showing the different rates of strategies. Each table concerned with the first stage consists of four columns: 1. The element meant to be calculated: This includes the ones just mentioned. 2. Civil: This refers to the statistics of the civil cases.
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3. Criminal: This involves the statistics of the criminal counterparts; and 4. Comparison: This is sub-divided into three columns: a. X2: This has to do with the result of applying the Chi-square mentioned before. The value given here is not itself included in the discussion of the results; it is mentioned because calculating the pvalue (explained below) depends totally on this element, so it must be pointed out in the tables. b. d.f.: This refers to the degree of freedom found in the statistics. A degree of freedom (abbreviated as d.f.) is equal to the number of observations minus one. So, if the sample size were 20, there would be 20 observations, and the d.f. is 19. In Chi-square (X2), the d.f. = (Row-1)(Column-1). So, if we have, for example, a table with five rows and two columns, d.f. will be (4). It is important to point out that any row with zero values is excluded from calculating the d.f. Furthermore, the value given to this element (i.e. d.f.) has no role to play in the results of the analysis in this study, yet it should be mentioned on a statistical basis. Put differently, the d.f. should be mentioned as an accompanying element with the calculations of the Chi-square (particularly the calculations of the p-value discussed below) but it is not included within the discussion of the results; and c. P-value: This refers to the (non)significance of the differences found between the compared variables. The (p-) indicates the probability (that is, a number) expressing the chances that a specific event will occur. This number can take any value ranging between 01. In the statistical evaluation, there are three levels of significance:
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1. Non-significant (abbreviated as NS) with the following value: P > 0.05. 2. Significant (abbreviated as S) with the following value: 0.05 _ P > 0.01; and 3. Highly significant (abbreviated as HS) with the following value: P ^ 0.01. However, if the symbol (-) is used in the tables instead of giving a specific p-value, it means two things: 1. Either there exists no difference between the frequencies to be compared (i.e. we have the same frequencies), as such no p-value can be obtained; or 2. The comparison is made between a particular frequency and zero, whereby no value can be obtained (See Table (16) below as an example). The tables concerned with the second stage are of two types: the first has to do with the differences between petitioner(s) and respondent(s) in each of the civil and criminal cases. The second, in turn, is concerned with showing the differences between civil and criminal cases with respect to petitioner(s) and respondent(s) separately. As such, the classification in the tables will vary accordingly. The figures, on the other hand, demonstrate the different rates of the frequencies calculated by means of their percentages. There are two points to be mentioned before commenting on the statistics:
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1. Each of the two stages for each of the civil and criminal cases is commented on separately. Then, the comparison between the two types of cases comes later; and 2. The complex and compound maneuvers, as analyzed in the illustrative examples (viz. one complex and one compound in the civil, and only one compound in the criminal), are considered miscellaneous and, thus, excluded from the statistics below. Complex and compound maneuvers have something in common: being composed of more than one part simultaneously. This composition, actually, posits a problem to the statistics because each strategy in the developed model is employed twice (or even thrice), yet it, supposedly, refers to one maneuver. This, in turn, causes a defect because it is neither possible to calculate these strategies as two or three separate ones (as they belong to the same maneuver), nor is it reasonable to treat them as one. As such, it is more logical to exclude them from the statistics altogether.
5.3.1 Civil Cases The statistics presented in this sub-section is distributed on the two stages of the trial formerly discussed. It follows that the statistics of each stage will be introduced separately for the sake of clarity.
5.3.1.1 Establishing Facts of the Case The results shown on the tables below verify the following in this stage which is mainly concerned with the petitioner as the data reveal. As such, no specification to each of the two conflicting parties is referred to:
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A. As regards the first level, its constituent components have the statistics below: - Reasonableness: Violating reasonableness prevails here. This is supported by its percentage (that is, 80%) shown on Table (7) and Figure (6) below. This finding partially verifies the first hypothesis (that is, Reasonableness is frequently violated in both types of trials). Table (7) Statistics of Reasonableness in the First Stage of Civil and Criminal Cases Reasonableness Kept to Violated Total
Civil Criminal Comparison Fr. % Fr. % X2 d.f. p-value 1 (20%) 2 (40%) 0.490 4 (80%) 3 (60%) 0.476 1 (NS) 5 (100%) 5 (100%)
Reasonableness 80% 60% Kept to 40%
Violated
20% 0% Civil
Criminal
Figure (6) Rates of Reasonableness in the First Stage of Civil and Criminal Cases
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- Argumentation Schemes: The dominant AS in the civil cases, as shown on Table (8) and Figure (7) below, is argument from an established rule whose percentage is (40%). This finding partially verifies the second hypothesis in this study (i.e. Argument from an established rule is the most frequent type used in civil trials, whereas argument from analogy is the one used in criminal trials). Table (8) Statistics of ASs in the First Stage of Civil and Criminal Cases Argumentation Schemes Analogy Established rule Sign Expert opinion Testimony Verbal classification Commitment Practical reasoning Ad hominem Slippery slope Popular opinion Correlation to cause Combination of ASs Total
Fr. 1 2 0 0 0 0 0 1 0 0 0 0 1 5
Civil Criminal Comparison % Fr. % X2 d.f. p-value (20%) 1 (20%) (40%) 1 (20%) (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) 0.615 2.667 4 (NS) (20%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) (0%) 1 (20%) (20%) 2 (40%) (100%) 5 (100%)
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Argumentation Schemes 40%
Analogy Established rule
35%
Sign 30%
Expert opinion Testimony
25%
Verbal classification 20%
Commitment Practical reasoning
15%
Ad hominem 10%
Slippery slope Popular opinion
5% Correlation to cause Combination of AS's
0% Civil
Criminal
Figure (7) Rates of ASs in the First Stage of Civil and Criminal Cases - Reasoning: Deductive reasoning has the highest percentage, that is, 60% among the other types. This is what Table (9) and Figure (8) below confirm. This finding rejects the third hypothesis in this work (that is, Inductive reasoning is most commonly relied on in civil trials, whereas criminal trials depend on the presumptive counterpart).
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Table (9) Statistics of Reasoning in the First Stage of Civil and Criminal Cases Civil Criminal Comparison Fr. % Fr. % X2 d.f. p-value Deductive 3 (60%) 3 (60%) Inductive 0 (0%) 1 (20%) Presumptive 0 (0%) 0 (0%) Simple 1 (20%) 0 (0%) 0.572 2 3 Disjunctive (NS) Complex 0 (0%) 0 (0%) E-contrario 1 (20%) 1 (20%) Combination 0 (0%) 0 (0%) Total 5 (100%) 5 (100%) Reasoning
Reasoning Deductive
80%
Inductive
60%
Presumptive
40%
Simple
20%
Complex
0% Civil
Criminal
E-contrario
Figure (8) Rates of Reasoning in the First Stage of Civil and Criminal Cases - Fallacies: No fallacy has been proved to be dominant in this stage in the civil cases. This is warranted by what is found on Table (10) and Figure (9) below whereby all the committed fallacies have the same percentage (that is, 20%). This finding rejects the fourth hypothesis in this study (i.e. Evading the burden of proof by means axiomatically presenting a standpoint is the most frequent fallacy employed in civil cases, and faulty analogy is the one usually used in criminal cases).
322
Table (10) Statistics of Fallacies in the First Stage of Civil and Criminal Cases Fallacies
Fr. 1 1 2 0 3 0 4 0 5 1 6 0 7 0 8 1 10 0 Combination 1 No Fallacy 1 Total 5
Civil Criminal Comparison % Fr. % X2 d.f. p-value (20%) 1 (20%) (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) (20%) 0 (0%) (0%) 0 (0%) 0.649 3.333 5 (NS) (0%) 0 (0%) (20%) 0 (0%) (0%) 1 (20%) (20%) 1 (20%) (20%) 2 (40%) (100%) 5 (100%)
Fallacies 40% 1 35%
2
30%
3 4
25%
5
20%
6
15%
7
8 10%
10
5%
Combination
No Fallacy
0% Civil
Criminal
Figure (9) Rates of Fallacies in the First Stage of Civil and Criminal Cases
323
- Audience Demand: Keeping to this aspect is completely dominant in this stage in the civil cases. It has a 100% as shown on Table (11) and Figure (10) below. This finding verifies the fifth hypothesis in this work (that is, Audience demand is frequently kept to in each of the civil and criminal trials). Table (11) Statistics of Audience Demand in the First Stage of Civil and Criminal Cases Audience Demand Kept to Violated Total
Rf. 5 0 5
Civil Criminal Comparison % Fr. % X2 d.f. p-value (100%) 5 (100%) (0%) 0 (0%) (100%) 5 (100%)
Audience Demand 100% Kept to 50%
Violated
0% Civil
Criminal
Figure (10) Rates of Audience Demand in the First Stage of Civil and Criminal Cases - Presentational Devices: The unemployment of any presentational device is dominant here. The percentage of (80%), as manifested on Table (12) and Figure (11) below, supports this finding. This verifies the sixth hypothesis of this work (i.e. No presentational device prevails in both types of the data under analysis).
324
Table (12) Statistics of Presentational Devices in the First Stage of Civil and Criminal Cases Presentational Devices Metaphor Metonymy Overstatement Understatement Rhetorical question Combination No Total
Fr. 0 0 0 0 0 1 4 5
Civil Criminal Comparison % Fr. % X2 d.f. p-value (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) (0%) 0 (0%) 0.292 1.111 1 (NS) (0%) 0 (0%) (20%) 0 (0%) (80%) 5 (100%) (100%) 5 (100%)
Persentational Devices 100% Metaphor 80%
Metonymy
Overstatement
60%
Understatement 40%
Rhetorical question
Combination
20%
No
0%
Civil
Criminal
Figure (11) Rates of Presentational Devices in the First Stage of Civil and Criminal Cases B. Dialectical Relevance: This is what instantiates the second level of analysis as pointed out before. There are two elements here: - Type: Probative is the dominant type of relevance here. Table (13) and Figure (12) below verify this finding. They show 100% of the employment of this type. This finding verifies the seventh hypothesis
325
with regard to the type (that is, Probative relevance is the type of dialectical relevance frequently utilized in the aforementioned data, and relational is the approach which is frequently relied on in them).
Table (13) Statistics of the Type of Dialectical Relevance in the First Stage of Civil and Criminal Cases Civil Criminal Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Type) Topical 0 (0%) 0 (0%) Probative 5 (100%) 5 (100%) Total 5 (100%) 5 (100%)
Dialectical Relevance 100% 80% 60%
Topical
40%
Probative
20% 0%
Civil
Criminal
Figure (12) Rates of the Type of Dialectical Relevance in the First Stage of Civil and Criminal Cases - Approach: No approach is dominant in this stage in the civil cases. This is supported by the 100% of the unemployment of any approach listed on Table (14) and Figure (13) below. This totally rejects the seventh hypothesis with respect to approach (i.e. Probative relevance is the type of dialectical relevance frequently utilized in the aforementioned data, and relational is the approach which is frequently relied on in them).
326
Table (14) Statistics of the Approach of Dialectical Relevance in the First Stage of Civil and Criminal Cases Civil Criminal Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Approach) Domain 0 (0%) 0 (0%) Component 0 (0%) 0 (0%) Relational 0 (0%) 0 (0%) No 5 (100%) 5 (100%) Total 5 (100%) 5 (100%)
Dialectical Relevance (Approach) 100% 80%
Domain
60%
Component
40%
Relational
20%
No
0% Civil
Criminal
Figure (13) Rates of the Approach of Dialectical Relevance in the First Stage of Civil and Criminal Cases C. Mode of SM: This constitutes the third and last level in the eclectic model. It has two varieties: - Conventional: Whereby the single one prevails with its 80%, as shown on Table (15) and Figure (14) below. This finding verifies the eighth hypothesis in this work (i.e. Conventional modes are frequently produced in civil cases, while non-conventional peers are yielded in the criminal cases).
327
Table (15) Statistics of the Conventional Mode of SM in the First Stage of Civil and Criminal Cases Civil Criminal Comparison Mode (Conventional) Fr. % Fr. % X2 d.f. p-value Single 4 (80%) 2 (50%) 0.343 Combinatory 1 (20%) 2 (50%) 0.9 1 (NS) Total 5 (100%) 4 (100%)
Mode (Conventional) 80%
60% Single 40%
Combinatory
20% 0% Civil
Criminal
Figure (14) Rates of the Conventional Mode of SM in the First Stage of Civil and Criminal Cases - Non-Conventional: Whereby no mode prevails as none of its strategies has been employed here. This is what Table (16) and Figure (15) below assert:
Table (16) Statistics of the Non-Conventional Mode of SM in the First Stage of Civil and Criminal Cases Civil Mode % (Non-Conventional) Fr. Persuasive definition 0 (25%) Rhetorical question 0 (25%) Praeteritio 0 (25%) Dissociation 0 (25%)
328
Criminal Comparison Fr. % X2 d.f. p-value 1 (100%) 0 (0%) 0 (0%) 0 (0%)
Total
0
(100%)
1
(100%)
Mode (Non-Conventional) 100% 80% Persuasive definition 60%
Rhetorical question
40%
Praeteritio Dissociation
20% 0% Civil
Criminal
Figure (15) Rates of the Non-Conventional Mode of SM in the First Stage of Civil and Criminal Cases
5.3.1.2 Arguing the Case Discussing this stage differs from the previous one. This is justified by the fact that the two conflicting parties (that is to say, the roles of petitioner and respondent) come to the scene in this very stage. Accordingly, the discussion of the three analytical levels will be done twice: one with the petitioner and the other with the respondent. Yet, the tables and figures will be listed for once with whom (i.e. the conflicting party) is introduced first; reference will be made, nevertheless, to the same tables and figures with the second party. The petitioner will be started with first in order to be consistent with what has been done in the illustrative analysis. Needless to remind that the three levels will be commented on in the same way performed with the first stage:
329
5.3.1.2.1 Petitioner A. - Reasonableness: Violating reasonableness by the petitioner(s) prevails in the second stage in the civil cases. This is supported by its percentage (that is, 66%) shown on Table (17) and Figure (16) below. This partially verifies the first hypothesis mentioned above.
Table (17) Statistics of Reasonableness in the Second Stage by Petitioner and Respondent in Civil Cases Reasonableness Kept to Violated Total
Petitioner Fr. % 17 (34%) 33 (66%) 50 (100%)
Respondent Comparison Fr. % X2 d.f. p-value 24 (55.81%) 0.035 19 (44.19%) 4.463 1 (S) 43 (100%)
Reasonableness 100% Kept to 50%
Violated
0% Petitioner
Respondent
Figure (16) Rates of Reasonableness in the Second Stage by Petitioner and Respondent in Civil Cases - Argumentation Schemes: The dominant AS on the part of the petitioner, as shown on Table (18) and Figure (17) below, is argument from analogy whose percentage is (28%). This partially rejects the second hypothesis referred to above.
330
Table (18) Statistics of ASs in the Second Stage by Petitioner and Respondent in Civil Cases Argumentation Schemes Analogy Established rule Sign Expert opinion Testimony Verbal classification Commitment Practical reasoning Ad hominem Slippery slope Popular opinion Correlation to cause Combination of ASs Total
Petitioner Respondent Comparison Fr. % Fr. % X2 d.f. p-value 14 (28%) 9 (20.93%) 10 (20%) 8 (18.60%) 5 (10%) 3 (6.98%) 8 (16%) 7 (16.28%) 0 (0%) 0 (0%) 1 (2%) 1 (2.33%) 0 (0%) 2 (4.65%) 0.685 7.424 10 (NS) 5 (10%) 3 (6.98%) 0 (0%) 0 (0%) 3 (6%) 2 (4.65%) 1 (2%) 2 (4.65%) 1 (2%) 0 (0%) 2 (4%) 6 (13.95%) 50 (100%) 43 (100%)
Argumentation Schemes 30%
Analogy Established rule
25% Sign Expert opinion
20%
Testimony Verbal classification
15%
Commitment Practical reasoning
10%
Ad hominem Slippery slope
5%
Popular opinion 0%
Correlation to cause Petitioner
Respondent
Figure (17) Rates of ASs in the Second Stage by Petitioner and Respondent in Civil Cases
331
- Reasoning: Deductive reasoning is the dominant type with the highest percentage of employment: 42%. This is what Table (19) and Figure (18) below confirm. Table (19) Statistics of Reasoning in the Second Stage by Petitioner and Respondent in Civil Cases Petitioner Fr. % Deductive 21 (42%) Inductive 16 (32%) Presumptive 5 (10%) Simple 4 (8%) Disjunctive Complex 1 (2%) E-contrario 3 (6%) Combination 0 (0%) Total 50 (100%) Reasoning
Respondent Comparison Fr. % X2 d.f. p-value 23 (53.49%) 10 (23.26%) 4 (9.30%) 3 (6.98%) 0.754 3.422 6 (NS) 0 (0%) 2 (4.65%) 1 (2.33%) 43 (100%)
Reasoning Deductive
60% 50%
Inductive
40%
Presumptive
30%
Simple
20%
Complex
10%
E-contrario
0% Petitioner
Respondent
Combination
Figure (18) Rates of Reasoning in the Second Stage by Petitioner and Respondent in Civil Cases - Fallacies: Committing no fallacy is dominant in this category. This is supported by what is found on Table (20) and Figure (19) below in which the (No Fallacy) entry has a 34% out of the total number of all the other peers. This rejects the fourth hypothesis mentioned above.
332
Table (20) Statistics of Fallacies in the Second Stage by Petitioner and Respondent in Civil Cases Petitioner Respondent Comparison Fr. % Fr. % X2 d.f. p-value 1 1 (2%) 0 (0%) 2 9 (18%) 8 (18.60%) 3 1 (2%) 1 (2.33%) 4 1 (2%) 3 (6.98%) 5 1 (2%) 0 (0%) 6 8 (16%) 2 (4.65%) 0.164 12.972 9 (NS) 7 1 (2%) 1 (2.33%) 8 0 (0%) 1 (2.33%) 10 0 (0%) 0 (0%) Combination 11 (22%) 3 (6.98%) No Fallacy 17 (34%) 24 (55.81%) Total 50 (100%) 43 (100%) Fallacies
Fallacies 60%
1 2
50%
3 40%
4 5
30%
6 7
20%
8
10%
10
0%
Combination Petitioner
Respondent
Figure (19) Rates of Fallacies in the Second Stage by Petitioner and Respondent in Civil Cases - Audience Demand: Keeping to this aspect is dominant here. It has a 90% as shown on Table (21) and Figure (20) below:
333
Table (21) Statistics of Audience Demand in the Second Stage by Petitioner and Respondent in Civil Cases Audience Demand Kept to Violated Total
Petitioner Respondent Comparison Fr. % Fr. % X2 d.f. p-value 45 (90%) 39 (90.70%) 0.909 5 (10%) 4 (9.30%) 0.013 1 (NS) 50 (100%) 43 (100%)
Audience Demand 100% 80% 60%
Kept to
40%
Violated
20% 0% Petitioner
Respondent
Figure (20) Rates of Audience Demand in the Second Stage by Petitioner and Respondent in Civil Cases - Presentational Devices: The unemployment of any presentational device is dominant here. It has a percentage of (76%), as manifested on Table (22) and Figure (21) below:
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Table (22) Statistics of Presentational Devices in the Second Stage by Petitioner and Respondent in Civil Cases Petitioner
Presentational Devices
Fr.
Metaphor Metonymy Overstatement Understatement Rhetorical question Combination No Total
Respondent Fr. %
%
11
(22%)
6
0 0 0 1 0 38 50
(0%) (0%) (0%) (2%) (0%) (76%) (100%)
1 0 0 0 0 36 43
(13.95%) (2.33%) (0%) (0%) (0%) (0%) (83.72%) (100%)
Comparison pX d.f. value 2
3.015
3
0.389 (NS)
Presentational Devices 90% 80%
Metaphor
70%
Metonymy
60% Overstatement
50%
Understatement
40%
Rhetorical question
30% 20%
Combination
10%
No
0% Petitioner
Respondent
Figure (21) Rates of Presentational Devices in the Second Stage by Petitioner and Respondent in Civil Cases B. - Dialectical Relevance: There are two elements here: - Type: Probative is the dominant type of relevance here. Table (23) and Figure (22) below verify this finding. They show 88% of the employment of this type:
335
Table (23) Statistics of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Civil Cases Petitioner Respondent Comparison Dialectical Relevance (Type) Fr. % Fr. % X2 d.f. p-value Topical 6 (12%) 6 (13.95%) 0.779 Probative 44 (88%) 37 (86.05%) 0.079 1 (NS) Total 50 (100%) 43 (100%)
Dialectical Relevance (Type) 100% 80%
Topical
60%
Probative
40% 20% 0% Petitioner
Respondent
Figure (22) Rates of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Civil Cases - Approach: No approach is dominant in this stage in the civil cases. This is supported by the 76% of the unemployment of any approach listed on Table (24) and Figure (23) below: Table (24) Statistics of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Civil Cases Dialectical Relevance (Approach) Domain Component Relational No Total
Petitioner Fr. 1 5 6 38 50
% (1%) (10%) (3%) (76%) (100%)
Respondent Fr. 0 3 4 36 43
336
% (0%) (6.98%) (9.30%) (83.72%) (100%)
Comparison pX d.f. value 2
1.435
3
0.697 (NS)
Dialectical Relevance (Approach) 90% 80% 70% 60%
Domain
50%
Component
40%
Relational
30%
No
20% 10% 0% Petitioner
Respondent
Figure (23) Rates of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Civil Cases C. - Mode of SM: It has two varieties: - Conventional: Whereby the single prevails with its 95.45%, as shown on Table (25) and Figure (24) below: Table (25) Statistics of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Civil Cases Petitioner Respondent Comparison Mode (Conventional) Fr. % Fr. % X2 d.f. p-value Single 42 (95.45%) 35 (85.37%) 0.111 Combinatory 2 (4.55%) 6 (14.63%) 2.534 1 (NS) Total 44 (100%) 41 (100%)
337
Mode (Conventional) 100.00% 80.00% 60.00%
Single
40.00%
Combinatory
20.00% 0.00% Petitioner
Respondent
Figure (24) Rates of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Civil Cases - Non-Conventional: Dissociation is the dominant non-conventional mode with its 66.66%. This is what Table (26) and Figure (25) below assert: Table (26) Statistics of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Civil Cases Petitioner Respondent Comparison Mode % Fr. % X2 d.f. p-value (Non-Conventional) Fr. Persuasive definition 1 (16.67%) 0 (0%) Rhetorical question 1 (16.67%) 0 (0%) 0.641 Praeteritio 0 (0%) 0 (0%) 0.889 2 (NS) Dissociation 4 (66.66%) 2 (100%) Total 6 (100%) 2 (100%)
338
Mode (Non-Conventional) 100.00% 80.00%
Persuasive definition
60.00%
Rhetorical question
40.00%
Praeteritio
20.00%
Dissociation
0.00% Petitioner
Respondent
Figure (25) Rates of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Civil Cases 5.3.1.2.2 Respondent A. - Reasonableness: Keeping to reasonableness by the respondent(s) prevails in the second stage in the civil cases. This is proved by the 55.81% shown on Table (17) and Figure (16) above. This finding partially rejects the first hypothesis in this work which is mentioned above. - Argumentation Schemes: The dominant AS on the part of the respondent(s), as shown on Table (18) and Figure (17) above, is argument from analogy whose percentage is (20.93%). - Reasoning: Deductive reasoning is the dominant type with the highest percentage of employment: 53.49%. This is what Table (19) and Figure (18) above confirm. - Fallacies: Committing no fallacy is dominant here. This is supported by what is found on Table (20) and Figure (19) above in which the 55.81% verifies this finding.
339
- Audience Demand: Keeping to this aspect is dominant by the respondent(s). It has a 90.70% as shown on Table (21) and Figure (20) above. - Presentational Devices: The unemployment of any presentational device is dominant in this category. It has an 83.72% as manifested on Table (22) and Figure (21) above. B. - Dialectical Relevance: There are two elements here: - Type: Probative is the dominant type of relevance here. Table (23) and Figure (22) above verify this finding. They show an 86.05% of the employment of this type. - Approach: No approach is dominant in this stage by the respondent in the civil cases. This is supported by the 83.72% of the unemployment of any approach listed on Table (24) and Figure (23) above. C. - Mode of SM: It has two varieties: - Conventional: Whereby the single prevails with its 85.37%, as shown on Table (25) and Figure (24) above. - Non-Conventional: Dissociation is totally dominant by the respondent(s) here with its 100%. This is what Table (26) and Figure (25) above assert.
340
5.3.2 Criminal Cases The same procedure followed with the statistical analysis of the civil cases is followed with this type. It follows that reference is made to same tables and figures invoked before to avoid and repetition and/or redundancy.
5.3.2.1 Establishing Facts of the Case A. - Reasonableness: Violating reasonableness prevails in criminal cases in this stage. This is supported by the 60% shown on Table (7) and Figure (6) above. This partially verifies the first hypothesis in this work (i.e. Reasonableness is frequently violated in both types of trials). - Argumentation Schemes: No specific AS prevails here; rather, a combination of ASs does. This is clearly shown on Table (8) and Figure (7) above whereby the combination has a 40%. This partially rejects the second hypothesis in this study (that is, Argument from an established rule is the most frequent type used in civil trials, whereas argument from analogy is the one used in criminal trials). - Reasoning: Deductive reasoning is the dominant type with its 60%.This is what Table (9) and Figure (8) above confirm. This rejects the third hypothesis in this work (that is,
Inductive
reasoning is most commonly relied on in civil trials, whereas criminal trials depend on the presumptive counterpart). - Fallacies: Committing no fallacy is dominant with a 40%. This is warranted by what is found on Table (10) and Figure (9) above. This finding rejects the fourth hypothesis (i.e. Evading the burden of proof
341
by means axiomatically presenting a standpoint is the most frequent fallacy employed in civil cases, and faulty analogy is the one usually used in criminal cases). - Audience Demand: Keeping to this aspect is fully dominant in this stage in the criminal cases. It has a 100% as shown on Table (11) and Figure (10) above. This verifies the fifth hypothesis (i.e. Audience demand is frequently kept to in each of the civil and criminal trials). - Presentational Devices: The unemployment of any presentational device is fully dominant here. The 100%, found on Table (12) and Figure (11) above, supports this finding. This verifies the sixth hypothesis of this study (that is, No presentational device prevails in both types of the data under analysis). B. - Dialectical Relevance: There are two elements here: - Type: Probative is the dominant type of relevance here. The 100% demonstrated on Table (13) and Figure (12) above support this finding. This, in turn, verifies the seventh hypothesis with respect to type (i.e. Probative relevance is the type of dialectical relevance frequently utilized in the aforementioned data, and relational is the approach which is frequently relied on in them). - Approach: No approach is totally dominant in this stage in the criminal cases. This is supported by the 100% of the unemployment of any approach listed on Table (14) and Figure (13) above. This rejects the seventh hypothesis, just mentioned, with regard to approach.
342
C. - Mode of SM: It has two varieties: - Conventional: Whereby no type (i.e. single or combinatory) prevails as both have equal percentages: 50%. This is shown on Table (15) and Figure (14) above. - Non-Conventional: Whereby the persuasive definition is fully dominant with its 100%. This is what Table (16) and Figure (15) above verify. This partially verifies the eighth hypothesis (i.e. Conventional modes are frequently produced in civil cases, while non-conventional peers are yielded in the criminal cases).
5.3.2.2 Arguing the Case As done previously, here the discussion will be bipartite: one with the petitioner, the other with the respondent: 5.3.2.2.1 Petitioner A. - Reasonableness: Violating reasonableness by the petitioner(s) prevails in the second stage in the criminal cases. This is supported by the 55.81% shown on Table (27) and Figure (26) below: Table (27) Statistics of Reasonableness in the Second Stage by Petitioner and Respondent in Criminal Cases Reasonableness Kept to Violated Total
Petitioner Fr. % 19 (44.19%) 24 (55.81%) 43 (100%)
Respondent Comparison Fr. % X2 d.f. p-value 24 (64.86%) 0.064 13 (35.14%) 3.421 1 (NS) 37 (100%)
343
Reasonableness 70.00% 60.00% 50.00% 40.00%
Kept to
30.00%
Violated
20.00% 10.00% 0.00% Petitioner
Respondent
Figure (26) Rates of Reasonableness in the Second Stage by Petitioner and Respondent in Criminal Cases - Argumentation Schemes: The dominant AS on the part of the petitioner(s), as shown on Table (28) and Figure (27) below, is argument from analogy whose percentage is (32.56%). This partially verifies the second hypothesis mentioned above.
344
Table (28) Statistics of ASs in the Second Stage by Petitioner and Respondent in Criminal Cases Argumentation Schemes Analogy
Respondent Fr. %
14
15 (32.56%)
5
Established rule Sign
4 2
Expert opinion Testimony Verbal classification Commitment Practical reasoning Ad hominem Slippery slope Popular opinion Correlation to cause Combination of ASs Total
Petitioner Fr. %
1 3 1 0 0 2 0 1 10
(40.54%) 2
(11.63%) (9.30%) (4.65%) (2.33%) (6.98%) (2.33%) (0%) (0%) (4.65%) (0%) (2.33%)
(23.26%) 43 (100%)
Comparison pX d.f. value 2
3 6 0 2 0 0 1 1 0 2 5 37
(5.41%) (8.11%) (16.22%) (0%) (5.41%) (0%) (0%) (2.70%) (2.70%) (0%) (5.41%)
8.595
10
0.571 (NS)
(13.51%) (100%)
Argumentation Schemes 45.00%
Analogy
40.00%
Established rule
35.00%
Sign
30.00% Expert opinion
25.00% 20.00%
Testimony
15.00%
Verbal classification
10.00%
Commitment
5.00%
Practical reasoning
0.00% Petitioner
Respondent
Ad hominem
Figure (27) Rates of ASs in the Second Stage by Petitioner and Respondent in Criminal Cases
345
- Reasoning: Deductive reasoning is the dominant here with the highest percentage: 48.84%. This is what Table (29) and Figure (28) below confirm: Table (29) Statistics of Reasoning in the Second Stage by Petitioner and Respondent in Criminal Cases Petitioner Fr. % Deductive 21 (48.84%) Inductive 11 (25.58%) Presumptive 6 (13.95%) Simple 1 (2.33%) Disjunctive Complex 0 (0%) E-contrario 2 (4.65%) Combination 2 (4.65%) Total 43 (100%)
Respondent Comparison Fr. % X2 d.f. p-value 18 (48.65%) 11 (29.73%) 3 (8.11%) 0 (0%) 0.850 1.992 5 (NS) 0 (0%) 3 (8.11%) 2 (5.41%) 37 (100%)
Reasoning
Reasoning 50.00% Deductive 40.00%
Inductive
30.00%
Presumptive Simple
20.00%
Complex
10.00%
E-contrario Combination
0.00% Petitioner
Respondent
Figure (28) Rates of Reasoning in the Second Stage by Petitioner and Respondent in Criminal Cases - Fallacies: Committing no fallacy is dominant in this category. This is supported by what is found on Table (30) and Figure (29) below in which the (No Fallacy) entry has a 44.19%:
346
Table (30) Statistics of Fallacies in the Second Stage by Petitioner and Respondent in Criminal Cases Petitioner Respondent Comparison Fr. % Fr. % X2 d.f. p-value 1 4 (9.30%) 2 (5.41%) 2 10 (23.26%) 4 (10.81%) 3 2 (4.65%) 0 (0%) 4 0 (0%) 2 (5.41%) 5 0 (0%) 0 (0%) 6 3 (6.98%) 4 (10.81%) 0.158 10.572 7 (NS) 7 0 (0%) 0 (0%) 8 0 (0%) 0 (0%) 10 0 (0%) 0 (0%) Combination 3 (6.98%) 1 (2.70%) No Fallacy 19 (44.19%) 24 (64.86%) Total 43 (100%) 37 (100%) Fallacies
Fallacies 70.00%
1
60.00%
2 3
50.00%
4
40.00%
5 6
30.00%
7 8
20.00%
10
10.00%
Combination 0.00%
No Fallacy Petitioner
Respondent
Figure (29) Rates of Fallacies in the Second Stage by Petitioner and Respondent in Criminal Cases
347
- Audience Demand: Keeping to this aspect is fully dominant here. It has a 100% as shown on Table (31) and Figure (30) below: Table (31) Statistics of Audience Demand in the Second Stage by Petitioner and Respondent in Criminal Cases Audience Demand Kept to Violated Total
Petitioner Respondent Comparison Fr. % Fr. % X2 d.f. p-value 43 (100%) 34 (91.89%) 0.057 0 (0%) 3 (8.11%) 3.622 1 (NS) 43 (100%) 37 (100%)
Audience Demand 100% 80% 60%
Kept to
40%
Violated
20% 0%
Petitioner
Respondent
Figure (30) Rates of Audience Demand in the Second Stage by Petitioner and Respondent in Criminal Cases - Presentational Devices: The unemployment of any presentational device has the highest percentage here: 83.72%. This is manifested on Table (32) and Figure (31) below:
348
Table (32) Statistics of Presentational Devices in the Second Stage by Petitioner and Respondent in Criminal Cases Presentational Devices Metaphor Metonymy Overstatement Understatement Rhetorical question Combination No Total
Petitioner Respondent Comparison Fr. % Fr. % X2 d.f. p-value 3 (6.98%) 6 (16.22%) 1 (2.33%) 0 (0%) 1 (2.33%) 0 (0%) 1 (2.33%) 0 (0%) 0.290 7.345 6 (NS) 1 (2.33%) 0 (0%) 0 (0%) 2 (5.41%) 36 (83.72%) 29 (78.38%) 43 (100%) 37 (100%)
Presentational Devices 90.00% 80.00%
Metaphor
70.00%
Metonymy
60.00%
Overstatement
50.00%
Understatement
40.00% 30.00%
Rhetorical question
20.00%
Combination
10.00%
No
0.00% Petitioner
Respondent
Figure (31) Rates of Presentational Devices in the Second Stage by Petitioner and Respondent in Criminal Cases
349
B. - Dialectical Relevance: There are two elements here: - Type: Probative is the fully dominant type of relevance here. Table (33) and Figure (32) below verify this finding with the 100% of employment: Table (33) Statistics of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Criminal Cases Petitioner Respondent Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Type) Topical 0 (0%) 3 (8.11%) 0.057 Probative 43 (100%) 34 (91.89%) 3.622 1 (NS) Total 43 (100%) 37 (100%)
Dialectical Relevance (Type) 100% 80% 60%
Topical
40%
Probative
20% 0% Petitioner
Respondent
Figure (32) Rates of the Type of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Criminal Cases - Approach: No approach is dominant here. This is supported by the 100% of the unemployment listed on Table (34) and Figure (33) below: Table (34) Statistics of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Criminal Cases
350
Petitioner Respondent Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Approach) Domain 0 (0%) 0 (0%) Component 0 (0%) 1 (2.70%) 0.163 Relational 0 (0%) 2 (5.41%) 3.622 2 (NS) No 43 (100%) 34 (91.89%) Total 43 (100%) 37 (100%)
Dialectical Relevance (Approach) 100% 90% 80% 70% Domain
60%
Component
50%
Relational
40%
No 30% 20% 10% 0% Petitioner
Respondent
Figure (33) Rates of the Approach of Dialectical Relevance in the Second Stage by Petitioner and Respondent in Criminal Cases C. - Mode of SM: It has two varieties: - Conventional: Whereby the single prevails with its 80%, as shown on Table (35) and Figure (34) below. This partially rejects the eighth hypothesis mentioned before.
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Table (35) Statistics of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Criminal Cases Petitioner Respondent Comparison Mode (Conventional) Fr. % Fr. % X2 d.f. p-value Single 32 (80%) 30 (88.24%) 0.338 Combinatory 8 (20%) 4 (11.76%) 0.917 1 (NS) Total 40 (100%) 34 (100%)
Mode (Conventional) 90% 80% 70% 60% 50%
Single
40%
Combinatory
30% 20% 10% 0% Petitioner
Respondent
Figure (34) Rates of the Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Criminal Cases - Non-Conventional: There is no strategy which has been proved to be dominant in this category. This is so because three strategies have equal percentages: 33.33 %. This is what Table (36) and Figure (35) below assert:
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Table (36) Statistics of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Criminal Cases Petitioner Respondent Comparison Mode (Non-Conventional) Fr. % Fr. % X2 d.f. p-value Persuasive definition 1 (33.33%) 0 (0%) Rhetorical question 1 (33.33%) 0 (0%) 0.261 Praeteritio 1 (33.34%) 1 (33.33%) 4 3 (NS) Dissociation 0 (0%) 2 (66.67%) Total 3 (100%) 3 (100%)
Mode (Non-Conventional) 70.00% 60.00% 50.00%
Persuasive definition
40.00%
Rhetorical question
30.00%
Praeteritio
20.00%
Dissociation
10.00% 0.00% Petitioner
Respondent
Figure (35) Rates of the Non-Conventional Mode of SM in the Second Stage by Petitioner and Respondent in Criminal Cases 5.3.2.2.2 Respondent A. - Reasonableness: Keeping to reasonableness by the respondent(s) prevails in the second stage in the criminal cases. This is proved by the 64.86% shown on Table (27) and Figure (26) above. This, in turn, partially rejects the first hypothesis previously mentioned.
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- Argumentation Schemes: Argument from analogy is the dominant AS on the part of the respondent(s) here, as shown on Table (28) and Figure (27) above. It has the highest percentage: 40.54%. - Reasoning: Deductive reasoning is the dominant type with the highest percentage of employment: 48.65%. This is what Table (29) and Figure (28) above confirm. - Fallacies: Committing no fallacy is dominant here. This is supported by what is found on Table (30) and Figure (29) above in which the 64.86% verifies this finding. - Audience Demand: Keeping to this aspect is dominant by the respondent(s). It has a 91.89% as shown on Table (31) and Figure (30) above. - Presentational Devices: The unemployment of any presentational device is dominant in this category. It has a 78.38% as manifested on Table (32) and Figure (31) above. B. - Dialectical Relevance: There are two elements here: - Type: Probative is the dominant type of relevance here. Table (33) and Figure (32) above verify this finding. They show a 91.89% of the employment of this type. - Approach: No approach is dominant in this stage by the respondent(s) in the criminal cases. This is supported by the 91.89% of the unemployment listed on Table (34) and Figure (33) above. C. - Mode of SM: It has two varieties:
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- Conventional: Whereby the single prevails with its 88.24%, as shown on Table (35) and Figure (34) above. - Non-Conventional: Dissociation is the dominant non-conventional mode by the respondent(s) here with its 66.67%. This is what Table (36) and Figure (35) above assert.
5.3.3 Statistical Contrast The aim behind this section is to statistically contrast, by means of the results delivered by the aforementioned Chi-square, between all the various components discussed so far. This, in turn, will fulfill the ninth aim of this work (that is, Find out the differences and similarities between American civil and criminal court trials.), and verify or reject the last hypothesis (i.e. There are no differences between American civil and criminal court trials with regard to the aforementioned aspects). Such a contrast, however, will move on the following track: 1. Owing to the fact that SM in trails in the developed model has been analyzed in two stages only, it follows that each of these stages will be contrasted individually at the three well-known analytical levels. 2. As regards the second stage, it will be contrasted (at the three levels) from two angles: a. The petitioner(s) and respondent(s) within each of the two types of civil and criminal. This represents the intra-contrast in this study. b. Each of the two conflicting parties in each of the two types. That is, the petitioner(s) in the civil and criminal cases will be
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contrasted, and the same will be done with the respondent(s). This, in turn, represents the inter-contrast.
5.3.3.1 Establishing Facts of the Case As mentioned before, this stage is petitioner-specific as such the contrast will be made directly between the civil and criminal cases. A. - Reasonableness: Despite the difference between violating the reasonable conduct in the civil and criminal cases, yet the p-value yielded (that is, 0.490), as shown on Table (7) above, is nonsignificant. - Argumentation Schemes: In spite of the fact that there are two different strategies which are dominant in the civil and criminal cases (viz. argument from an established rule and a combination of ASs respectively); this difference is considered non-significant, as demonstrated on Table (8) above. This is justified by the equal frequency each exhibits, that is, 2. In other words, it is the frequency of employment which determines whether a particular difference is (non)significant and not the type of strategy. - Reasoning: The difference between employing the different types of reasoning within this category has been shown to be nonsignificant. This is what the p-value, i.e. 0.572, listed on Table (9) above, assures. - Fallacies: As is the case with the previous components, the difference between committing fallacies (or not) has been shown to
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be non-significant. This is clearly manifested on Table (10) above whereby the p-value there is 0.649. - Audience Demand: There is no p-value given here because there is no difference between the frequencies representing the employment of this aspect in the civil and criminal cases (each has a frequency of 5). This is what is found on Table (11) above. As such, no difference is found in this aspect with respect to the two types of cases. - Presentational Devices: Although the difference between the frequencies of the unemployment of any presentational device in the civil and criminal cases is right there (that is, 4 and 5 respectively), yet this is considered non-significant. The p-value of 0.292 shown on Table (12) above confirms this claim. B. - Dialectical Relevance: There are two elements here: - Type: As with audience demand formerly discussed, no p-value is obtained here because there are equal frequencies in the two types of cases. This is listed on Table (13) above. It follows that no difference is found in this element between the two types of cases. - Approach: A similar case is found in this element whereby no pvalue is given. This is what Table (14) above exhibits. So, again, no difference is obtained here. C. - Mode of SM: It has two varieties: - Conventional: The difference between civil and criminal cases in this element is proved to be non-significant. The p-value of 0.343, listed on Table (15) above, supports this result.
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- Non-Conventional: No specific p-value is found here because the comparison is made between 1 and zero, as shown on Table (16) above,
which is statistically not possible. Consequently, no
difference is highlighted here. To conclude, the contrast between the first stages in the two types of cases partially verifies the last hypothesis mentioned above.
5.3.3.2 Arguing the Case Here, there are two varieties of contrast in this stage: intra and inter respectively, as mentioned above. The civil will be started with first as a matter of consistency:
5.3.3.2.1 Civil Cases: Petitioner vs. Respondent A. - Reasonableness: There does exist a significant difference between violating this element by the petitioner(s) and keeping to it by the respondent(s) in the civil cases. It is proved by the p-value of 0.035, as listed on Table (17) above. - Argumentation Schemes: A non-significant difference is highlighted between employing argument from analogy as the dominant AS by both the petitioner(s) and respondent(s). The p-value of 0.685, listed on Table (18) above, supports this result. - Reasoning: The difference between employing deductive reasoning as the dominant type by both the petitioner(s) and respondent(s) is considered non-significant. The 0.754 as a p-value, found on Table (19) above, confirms this non-significance.
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- Fallacies: There is a non-significant difference between the noncommitting of fallacies by the conflicting parties. The p-value listed on Table (20) above, that is 0.164, verifies this. - Audience Demand: The difference obtained between keeping to this aspect by both parties is deemed to be non-significant. This is justified by its p-value found on Table (21) above: 0.909. - Presentational Devices: The difference between the unemployment of any presentational device by both parties is considered nonsignificant. This is what the p-value (that is, 0.389) listed on Table (22) above shows. B. - Dialectical Relevance: There are two elements here: - Type: In spite of the fact that there is a difference between using 'probative' as the dominant type of relevance by the petitioner(s) and respondent(s), yet it is non-significant. The 0.779, as the p-value, demonstrated on Table (23) above supports this claim. - Approach: Again, the difference between the unemployment of any approach of relevance is regarded non-significant. The p-value of 0.697, shown on Table (24) above, proves this. C. - Mode of SM: It has two varieties: - Conventional: The difference between the petitioner(s) and respondent(s) in this element is proved to be non-significant. The pvalue of 0.111, listed on Table (25) above, supports this result. - Non-Conventional: The difference between employing dissociation as the dominant strategy by both parties here is considered non-
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significant. The p-value of 0.641, found on Table (26) above, verifies this.
5.3.3.2.2 Criminal Cases: Petitioner vs. Respondent A. - Reasonableness: The difference found between violating this element by the petitioner(s) and keeping to it by the respondent(s) in the criminal cases is considered non-significant. This is what Table (27) above assures by providing the 0.064 as the p-value here. - Argumentation Schemes: The difference between employing argument from analogy as the dominant AS, by both parties, is shown to be non-significant. The p-value of 0.571, listed on Table (28) above, verifies this. - Reasoning: There is a non-significant difference between employing deductive reasoning by both parties in the criminal cases. The p-value of 0.850, listed on Table (29) above, approves this. - Fallacies: There is a non-significant difference between the noncommitting of fallacies by the conflicting parties. The p-value listed on Table (30) above, that is 0.158, verifies this. - Audience Demand: The difference obtained between keeping to this aspect by both parties is deemed to be non-significant. This is justified by its p-value found on Table (31) above: 0.057. - Presentational Devices: The difference between the unemployment of any presentational device by both parties is considered nonsignificant. This is what the p-value (that is, 0.290) listed on Table (32) above shows. B.
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- Dialectical Relevance: There are two elements here: - Type: The difference between employing 'probative' as the dominant type of relevance by the petitioner(s) and respondent(s) in the criminal cases is deemed to be non-significant. This is clearly manifested on Table (33) above whereby the p-value is 0.057. - Approach: Again, the difference between the unemployment of any approach of relevance is regarded non-significant. The p-value of 0.163, shown on Table (34) above, proves this. C. - Mode of SM: It has two varieties: - Conventional: The difference between the petitioner(s) and respondent(s) in this element is proved to be non-significant. The pvalue of 0.338, listed on Table (35) above, supports this result. - Non-Conventional: The difference found out between employing various strategies here by both parties is regarded non-significant. The 0.261, as the p-value, listed on Table (36) above, confirms this.
5.3.3.2.3 Civil vs. Criminal Cases: Petitioner A. - Reasonableness: The difference between violating this element by the petitioners in both of the civil and criminal cases has been shown to be non-significant. This is clearly manifested on Table (37) below whereby the p-value is 0.315. This finding partially verifies the last hypothesis indicated above.
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Table (37) Statistics of Reasonableness by Petitioners in Civil and Criminal Cases Reasonableness Kept to Violated Total
Fr. 17 33 50
Civil % (34%) (66%) (100%)
Fr. 19 24 43
Criminal Comparison % X2 d.f. p-value (44.19%) 0.315 (55.81%) 1.011 1 (NS) (100%)
- Argumentation Schemes: The difference between employing argument from analogy as the dominant AS is shown to be nonsignificant. The p-value of 0.053, listed on Table (38) below, supports this. This finding partially verifies the last hypothesis.
Table (38) Statistics of ASs by Petitioners in Civil and Criminal Cases Argumentation Schemes Analogy Established rule Sign Expert opinion Testimony Verbal classification Commitment Practical reasoning Ad hominem Slippery slope Popular opinion Correlation to cause Combination of ASs Total
Civil Fr. 14 10 5 8 0 1 0 5 0 3 1 1 2 50
Criminal Fr.
% (28%) (20%) (10%) (16%) (0%) (2%) (0%) (10%) (0%) (6%) (2%) (2%) (4%) (100%)
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%
Comparison 2
X
d.f.
pvalue
11
0.053 (NS)
14 (32.56%) 5 4 2 1 3 1 0 0 2 0 1 10 43
(11.63%) (9.30%) (4.65%) (2.33%) (6.98%) (2.33%) 19.495 (0%) (0%) (4.65%) (0%) (2.33%) (23.26%) (100%)
- Reasoning: There is a non-significant difference between employing deductive reasoning by the petitioners here. The p-value of 0.347, listed on Table (39) below, approves this. This, in turn, verifies the last hypothesis previously referred to. Table (39) Statistics of Reasoning by Petitioners in Civil and Criminal Cases Reasoning
Fr. Deductive 21 Inductive 16 Presumptive 5 Simple 4 Disjunctive Complex 1 E-contrario 3 Combination 0 Total 50
Civil % (42%) (32%) (10%) (8%) (2%) (6%) (0%) (100%)
Fr. 21 11 6 0 1 2 2 43
Criminal Comparison % X2 d.f. p-value (48.84%) (25.58%) (13.95%) (0%) 0.347 6.728 6 (NS) (2.33%) (4.65%) (4.65%) (100%)
- Fallacies: There is a non-significant difference between the noncommitting of fallacies here. The p-value listed on Table (40) below, that is 0.201, verifies this. And this partially verifies the last hypothesis. Table (40) Statistics of Fallacies by Petitioners in Civil and Criminal Cases Fallacies
Fr. 1 1 2 9 3 1 4 1 5 1 6 8 7 1 8 0 10 0 Combination 11 No Fallacy 17 Total 50
Civil % (2%) (18%) (2%) (2%) (2%) (16%) (2%) (0%) (0%) (22%) (34%) (100%)
Fr. 4 10 2 0 0 3 2 0 0 3 19 43
Criminal Comparison % X2 d.f. p-value (9.30%) (23.26%) (4.65%) (0%) (0%) (6.98%) 0.201 11.01 8 (NS) (4.65%) (0%) (0%) (6.98%) (44.19%) (100%)
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- Audience Demand: The difference obtained between keeping to this aspect by the petitioner(s) is deemed to be significant. This is justified by its p-value found on Table (41) below: 0.033. This finding partially rejects the last hypothesis formerly referred to. Table (41) Statistics of Audience Demand by Petitioners in Civil and Criminal Cases Audience Demand Kept to Violated Total
Fr. 45 5 50
Civil Criminal Comparison % Fr. % X2 d.f. p-value (90%) 43 (100%) 0.033 (10%) 0 (0%) 4.544 1 (S) (100%) 43 (100%)
- Presentational Devices: The difference between the unemployment of any presentational device is considered non-significant. This is what the p-value (that is, 0.211) listed on Table (42) below shows. As such, the last hypothesis is partially verified here.
Table (42) Statistics of Presentational Devices by Petitioners in Civil and Criminal Cases Presentational Devices Metaphor Metonymy Overstatement Understatement Rhetorical question Combination No Total
Fr. 11 0 0 0 1 0 38 50
Civil Criminal Comparison % Fr. % X2 d.f. p-value (22%) 3 (6.98%) (0%) 1 (2.33%) (0%) 1 (2.33%) (0%) 1 (2.33%) 0.211 7.139 5 (NS) (2%) 1 (2.33%) (0%) 0 (0%) (76%) 36 (83.72%) (100%) 43 (100%)
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B. - Dialectical Relevance: There are two elements here: - Type: The difference between employing 'probative' as the dominant type of relevance by the petitioners is considered significant. This is clearly manifested on Table (43) below whereby the p-value is 0.019. This finding partially rejects the last hypothesis previously mentioned. Table (43) Statistics of the Type of Dialectical Relevance by Petitioners in Civil and Criminal Cases Civil Criminal Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Type) Topical 6 (12%) 0 (0%) 0.019 Probative 44 (88%) 43 (100%) 5.516 1 (S) Total 50 (100%) 43 (100%)
- Approach: The difference between the unemployment of any approach here is regarded highly significant with its p-value, that is, 0.008. This is clearly shown on Table (44) below. This finding also partially rejects the last hypothesis.
Table (44) Statistics of the Approach of Dialectical Relevance by Petitioners in Civil and Criminal Cases Civil Criminal Comparison Dialectical Relevance (Approach) Fr. % Fr. % X2 d.f. p-value Domain 1 (2%) 0 (0%) Component 5 (10%) 0 (0%) 0.008 Relational 6 (12%) 0 (0%) 11.849 3 (HS) No 38 (76%) 43 (100%) Total 50 (100%) 43 (100%)
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C. - Mode of SM: It has two varieties: - Conventional: The difference between petitioners in this element is proved to be significant. The p-value of 0.029, listed on Table (45) below, supports this result. Accordingly, the last hypothesis previously mentioned is partially rejected. Table (45) Statistics of the Conventional Mode of SM by Petitioners in Civil and Criminal Cases Civil Criminal Comparison Mode (Conventional) Fr. % Fr. % X2 d.f. p-value Single 42 (95.45%) 32 (80%) 0.029 Combinatory 2 (4.54%) 8 (20%) 4.772 1 (S) Total 44 (100%) 40 (100%)
- Non-Conventional: The difference found out between employing various strategies here is regarded non-significant. The 0.212, as the p-value, listed on Table (46) below, confirms this. Consequently, the last hypothesis is partially verified.
Table (46) Statistics of the Non-Conventional Mode of SM by Petitioners in Civil and Criminal Cases Civil Criminal Comparison Mode (Non-Conventional) Fr. X2 d.f. p-value % Fr. % Persuasive definition 1 (16.66%) 1 (33.33%) Rhetorical question 1 (16.67%) 1 (33.33%) 0.212 Praeteritio 0 (0%) 1 (33.34%) 4.5 3 (NS) Dissociation 4 (66.67%) 0 (0%) Total 6 (100%) 3 (100%)
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5.3.3.2.4 Civil vs. Criminal Cases: Respondent A. - Reasonableness: The difference between keeping to this element by the respondents in both of the civil and criminal cases has been shown to be non-significant. This is clearly manifested on Table (47) below whereby the p-value is 0.409. As such, the last hypothesis is partially verified. Table (47) Statistics of Reasonableness by Respondents in Civil and Criminal Cases Reasonableness Kept to Violated Total
Fr. 24 19 43
Civil % (55.81%) (44.19%) (100%)
Fr. 24 13 37
Criminal Comparison % X2 d.f. p-value (64.86%) 0.409 (35.14%) 0.679 1 (NS) (100%)
- Argumentation Schemes: The difference between employing argument from analogy as the dominant AS here is proved to be nonsignificant. The p-value of 0.158, listed on Table (48) below, approves this. And this makes the last hypothesis partially verified.
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Table (48) Statistics of ASs by Respondents in Civil and Criminal Cases Argumentation Schemes Analogy Established rule Sign Expert opinion Testimony Verbal classification Commitment Practical reasoning Ad hominem Slippery slope Popular opinion Correlation to cause Combination of ASs Total
Civil Fr. 9
Criminal Fr.
% (20.93%)
8 3 7 0 1 2 3 0 2 2 0 6 43
(16.28%) (0%) (2.33%) (4.65%) (6.98%) (0%) (4.65%) (4.65%) (0%) (13.95%) (100%)
X
d.f.
pvalue
15.572
11
0.158 (NS)
15 (40.54%) 2
(18.60%) (6.98%)
%
Comparison 2
3 6 0 2 0 0 1 1 0 2 5 37
(5.41%) (8.11%) (8.11%) 0 (0%) (5.41%) (0%) (0%) (2.70%) (2.70%) (0%) (5.41%) (13.51%) (100%)
- Reasoning: There is a non-significant difference between employing deductive reasoning by the respondents in civil and criminal cases. The p-value of 0.563, listed on Table (49) below, approves this. This finding partially verifies the last hypothesis. Table (49) Statistics of Reasoning by Respondents in Civil and Criminal Cases Reasoning
Fr. Deductive 23 Inductive 10 Presumptive 4 Simple 3 Disjunctive Complex 0 E-contrario 2 Combination 1 Total 43
Civil % (53.49%) (23.26%) (9.30%) (6.98%) (0%) (4.65%) (2.33%) (100%)
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Fr. 18 11 3 0 0 3 2 37
Criminal Comparison % X2 d.f. p-value (48.65%) (29.73%) (8.11%) (0%) 0.563 3.906 5 (NS) (0%) (8.11%) (5.41%) (100%)
- Fallacies: There is a non-significant difference between the noncommitting of fallacies here. The p-value listed on Table (50) below, that is 0.454, supports this. This, in turn, partially verifies the last hypothesis.
Table (50) Statistics of Fallacies by Respondents in Civil and Criminal Cases Civil Criminal Comparison Fr. % Fr. % X2 d.f. p-value 1 0 (0%) 2 (5.41%) 2 8 (18.60%) 4 (10.81%) 3 1 (2.33%) 0 (0%) 4 3 (6.98%) 2 (5.41%) 5 0 (0%) 0 (0%) 6 2 (4.65%) 4 (10.81%) 0.454 7.794 8 (NS) 7 1 (2.33%) 0 (0%) 8 1 (2.33%) 0 (0%) 10 0 (0%) 0 (0%) Combination 3 (6.98%) 1 (2.70%) No Fallacy 24 (55.81%) 24 (64.86%) Total 43 (100%) 37 (100%) Fallacies
- Audience Demand: The difference obtained between keeping to this aspect by the respondents is deemed to be non-significant. Its pvalue, i.e. 0.849, listed on Table (51) below, supports this. Accordingly, the last hypothesis is partially verified. Table (51) Statistics of Audience Demand by Respondents in Civil and Criminal Cases Audience Demand Kept to Violated Total
Civil Fr. % Fr. 39 (90.70%) 34 4 (9.30%) 3 43 (100%) 37
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Criminal Comparison % X2 d.f. p-value (91.89%) 0.849 (8.11%) 0.036 1 (NS) (100%)
- Presentational Devices: The difference between the unemployment of any presentational device is deemed to be non-significant. This is what the p-value (that is, 0.344) listed on Table (52) below shows. Again, the last hypothesis is partially verified here.
Table (52) Statistics of Presentational Devices by Respondents in Civil and Criminal Cases Presentational Devices Metaphor Metonymy Overstatement Understatement Rhetorical question Combination No Total
Civil Fr.
Criminal Fr.
%
6 1 0 0 0 0 36 43
%
Comparison pX d.f. value 2
6 (14.63%) (2.44%) (0%) (0%) (0%) (0%) (87.80%) (100%)
0 0 0 0 2 29 37
(17.65%) (0%) (0%) (0%) (0%) (5.88%)
3.323
3
0.344 (NS)
(85.29%) (100%)
B. - Dialectical Relevance: There are two elements here: - Type: The difference between employing 'probative' as the dominant type of relevance by the respondents is considered nonsignificant. This is clearly manifested on Table (53) below whereby the p-value is 0.409. This partially verifies the last hypothesis. Table (53) Statistics of the Type of Dialectical Relevance by Respondents in Civil and Criminal Cases Civil Criminal Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Type) Topical 6 (13.95%) 3 (8.11%) 0.409 Probative 37 (86.05%) 34 (91.89%) 0.681 1 (NS) Total 43 (100%) 37 (100%)
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- Approach: The difference between the unemployment of any approach here is regarded non-significant with its p-value, that is, 0.527. This is clearly shown on Table (54) below.
Table (54) Statistics of the Approach of Dialectical Relevance by Respondents in Civil and Criminal Cases Civil Criminal Comparison Dialectical Relevance Fr. % Fr. % X2 d.f. p-value (Approach) Domain 0 (0%) 0 (0%) Component 3 (6.98%) 1 (2.70%) 0.527 Relational 4 (9.30%) 2 (5.41%) 1.281 2 (NS) No 36 (83.72%) 34 (91.89%) Total 43 (100%) 37 (100%)
C. - Mode of SM: It has two varieties: - Conventional: The difference between respondents in this element is proved to be non-significant. The p-value of 0.716, listed on Table (55) below, supports this result. This also partially verifies the last hypothesis. Table (55) Statistics of the Conventional Mode of SM by Respondents in Civil and Criminal Cases Civil Criminal Comparison Mode % Fr. % X2 d.f. p-value (Conventional) Fr. Single 35 (85.37%) 30 (88.24%) 0.716 Combinatory 6 (14.63%) 4 (11.76%) 0.132 1 (NS) Total 41 (100%) 34 (100%)
- Non-Conventional: The difference found out between employing dissociation here is regarded non-significant. The 0.361, as the pvalue, listed on Table (56) below, confirms this:
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Table (56) Statistics of the Non-Conventional Mode of SM by Respondents in Civil and Criminal Cases Civil Criminal Comparison Mode (Non-Conventional) Fr. % Fr. % X2 d.f. p-value Persuasive definition 0 (0%) 0 (0%) Rhetorical question 0 (0%) 0 (0%) 0.361 Praeteritio 0 (0%) 1 (33.33%) 0.833 1 (NS) Dissociation 2 (100%) 2 (66.67%) Total 2 (100%) 3 (100%)
To conclude, then, the contrast made between civil and criminal cases partially verifies and partially rejects the last hypothesis mentioned above.
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CHAPTER SIX CONCLUSIONS After investigating American civil and criminal court trials, the study has come up with the following conclusions: 1. Reasonableness can only be partially satisfied. This is quite evident in the percentages divided between violating and keeping to it. In the civil cases, the petitioner frequently violates reasonableness as the percentages show (that is, 80% and 66%), while the respondent in those very cases frequently keeps to it (with 55.81%). Likewise, the criminal cases exhibit the same partiality of satifaction with respect to the petitioner (with 60% and 55.81% of violation) and respondent (with 64.86% of keeping). This partiality is quite justified: a trial is made up of more than one stage , so it is very probable for reasonableness to be violated and kept to at the same time. This means that reasonableness in trials does not behave in a black-or-white manner; it stands in the middle, i.e. in a grey area. 2. The type of AS cannot be easily predicted. What is dominant in one stage, turns out not to be so in the other. As with reasonableness, this component is only partially satisfied owing to the fact that the trial is treated as one whole entity made up of more than one stage in tandem. However, the ASs detected with the highest frequencies (i.e. argument from an established rule with 40%, and argument from analogy with 28% and 20.93% in the civil cases, and 32.56% and 40.54% in the criminal ones) belong to the same category: arguments of bolstering. This makes sense because using any or both of the two
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other types (that is, interrelatedness or defeasibility) does not help arguers get the best out of the strategic maneuvering within which they argue. 3. Deductive reasoning is dominant among the other types. This is clear by the percentages it shows in the two stages in both types of trials: 60%28% and 20.93% for the civil cases, and 60%, 48.84%, and 48.65% for the criminal peers. The strictness which characterizes this type is the reason behind frequently employing it. This very strictness bolsters arguers to get the argumentation to their favour. In other words, by means of deduction, arguers, as it were, pre-shape their addressors' minds to undounbtedly cope with the standpoint being argued and, thus, its (dis)approval is taken for granted. 4. Committing no fallacy is very frequent in the aforementioned trials. This is evident in the percentages calculated in this regard: 34% and 55.81% for the civil, and 40%, 44.19% and 64.86% for the criminal. These percentages strongly confirm the optionality of fallacies offered by the model which this study has developed. 5. Audience demand is frequently satisfied. This is quite clear in its percentages: 100%, 90%, and 90.70% for the civil trials, and 100%, 91.89%, for the criminal. This frequency is expected because if arguers do not abide by this aspect, they will move against the current, thus complicate the task of maneuvering one step further. Getting the maneuvers to their favour will, then, become difficult. 6. Unemploying any presentational device is most frequent in both types of trials. The percentages verify this: 80%, 76%, and 83.72% for the civil cases, and 100%, 83.72, and 78.38 for the criminal.
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Interestingly, this conclusion is interrelated with another conclusion previuosly referred to (viz. 3). This interrelatedness is embodided when noticing that the two types of presentational devices formerly reviewed (that is to say, substitution tropes and destablization tropes), in fact, conflict with the deductive reasoning discussed above. This is so because both types of presentational devices are indeterminate owing to the fact that they are context-dependent, whereas the deductive reasoning, strictly speaking, allows no indeterminacy. As such, the unemployment of any presentational device is a byproduct of employing the deductive reasoning. 7. Probative relevance is the most frequent type in all the trials. The percentages calculated here support this: 100%, 88%, and 86.05% for the civil cases, and 100%, and 91.89% for the criminal. On the other hand, not employing any approach to relevance is the most dominant as the percentages approve: 100%, 76%, and 83.72% for the civil, and 100%, and 91.89% for the criminal. This leads one to confidently conclude that employing relevance cube is optional yet necessary. This optionality is engendered by the fact that any of the three approaches is activated only when the judge inquires about the relevance of some part to the maneuver at hand. Thus, neither the petitioner nor the respondent can initiate this component of relevance. 8. The single conventional mode of SM prevails in all the trials. This is evident in the percentages: 80%, 95.45, and 85.37% for the civil, and 80% and 88.24% for the criminal. This frequency can be justified by the fact that the strategies which realize the conventional mode
375
(i.e. the eleven ASs) are more than those which realize the nonconventional counterpart (i.e. the four ones). It follows that the relationship between AS and the mode, in general, is non-reciprocal: employing any AS sheds no light, whatsoever, on the mode that is to be yielded and vice versa– it is a matter of fact. And this makes the mode, just like the AS, difficult to predict. 9. There do exist some differences between civil and criminal court trials. This is mainly evident in the performance of the petitioners in both types of trials in the following aspects: audience demand, type of relevance, approach of relevance, and the conventional mode of SM. 10. Petitioners, in both types of trials, employ SM in more various ways than do respondents. This becomes very clear when noticing that the differences detected between the trials are with respect to petitioners and not respondents. 11. The analytical model developed by this study has proven its workability in analyzing SM in the aforementioned trials. 12. SM is a multi-layered concept. In spite of the fact that it has been analyzed at apparently three separate levels; those levels are actually interconnected. What occurs in one level paves the way for what happens in the next. Yet, the arrangement of these layers (or levels) is rigorous; it allows no shift. 13. Topical potential in trials is of a kleidoscopic nature. That is, it is triggered by a specific issue, yet in the course of its development so many different issues come to play a role. This nature justifies the realization of this aspect by three various components.
376
14. The type of AS(s) employed in the second stage of the trial is a reflex of what the judge says or inquires about. It is not selected on the basis of what the arguer (be it petitioner or respondent) prefers. 15. The type of AS is no guarantee of the kind of reasoning employed. All the ASs analyzed have included more than just one type of reasoning, which is determined by the context within which a maneuver occurs. This approves the context-sensitivity of reasoning as adopted by this study. 16. Owing to the fact that every AS is a mode of SM by itself, it follows that SM can be treated not only as a process but also as a product. 17. Maneuvers act in a chameleon-like manner. That is, they are variously realized by different strategies to have their own changing identities. That is why we have complex and compound maneuvers, and even a combination of strategies to vary more the maneuvers which are made in acordance with the issue at hand. 18. In accordance with the conclusion just cited above, SM, in general, acts in a chameleon-like manner. It changes with the field in which it is employed. That is why only one parameter (namely, the second), in the genre under investigation, has been found out workable. This means that there cannot be a one-size-fits-all version of the theory; it is very flexible to cover as many fields as it can. 19. The flexibility just referred to above sheds light on the point that the theory of SM, as a whole, is very prone to fastly develop and include more components in addition to those already established. This is also supported by the fact that SM is a skill more than being
377
just a method. Hence, depending on the various skills of arguers and the changing contexts in which maneuvers are made, the inclusion of new components within this theory in future is very probable.
378
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B. Web Sources Web Source 1: http://en.wikipedia.org/wiki/Enthymeme
Web Source 2: http://www.supremecourt.gov/oral_arguments/argument_transcr ipt.aspx
Web Source 3: http://litigation.findlaw.com/filing-a-lawsuit/civil -cases-vscriminal-cases-key-differences.html
Web Source 4: http://en.wikipedia.org/wiki/List_of_United_States_Supreme_C ourt_cases#2010.E2.80.932014
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Appendix (1)
403
404
405
(Eemeren and Grootendorst, 1992a:212-5)
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