Making Arguments: Reason in Context. Edmond H. Weiss
of argumentation. In argumentation one side, and only one side, has the assigned responsibility of making a strong (and in the case of a trial, a compelling) case. In a criminal trial, the responsibility is assigned to the prosecution; if the prosecution fails to make its case, the defendant is acquitted.
This central concept, the first rule of rational discourse, is called the burden of proof, and it underpins the argumentative ground. If argumentation is to proceed meaningfully, then, in every disputed claim or proposition, there must be a determinable burden of proof. This is not just an arbitrary rule or position about who must begin the argument (like a coin flip before a football game), but rather a principle derived from the most fundamental notions about how rational people should behave.
To illustrate, consider:
Harry takes a medicine for hypertension and the medicine has the desired effect of lowering his blood pressure. But it also makes him tired, and he doesn’t like feeling tired all the time. He has tried other medications, each either less effective at lowering his blood pressure, or with significant side effects of their own. He has actually considered ceasing all medication, but understands that not taking medication would significantly increase his risk of stroke, heart attack, or kidney failure. Harry is otherwise healthy—he eats sensibly, exercises, and maintains a good body weight. He does not smoke. He has worked it out, rationally, that being tired is preferable to a significant increase in the risk of premature death.
For Harry to cease his medication, it would have to be in response to a compelling case to change what he is doing, while not significantly increasing his risk of dire consequences. Harry’s physician proposes that he stay on his medication while undergoing a radical transformation in his lifestyle. He wants Harry to stop consuming sugar, salt, caffeine, alcohol, and refined carbohydrates. He has Harry do 45 minutes of aerobic exercise daily, and reduce the fat in his diet to the lowest possible levels. He has him eat the smallest amounts of animal protein possible, and consume mass quantities of fresh fruits and vegetables. Harry must get a good night’s sleep every night, and take measures to control whatever stress he experiences in his life.
After 30 days on this regimen, Harry is able to go off his blood pressure medicine and maintain a healthy blood pressure. His cholesterol has dropped, and he is leaving his chronic fatigue behind him. So invigorated is he by his new regimen that he actually begins to exercise more, magnifying the positive effects of the transformation.
What we left out of this story is what the doctor told Harry. He showed Harry the results of over three decades worth of clinical studies, hundreds of reports. He was even able to show Harry subsets of participants in the studies who were virtually matches for Harry—sex, age, weight, height, even on the same blood pressure medication. They had been able to get off their medications following the plan. Harry listened to the doctor present the case and, even though he himself was not a physician, was able to discern the degree to which a strong case had been made. The only question (not an issue in argumentation theory per se) was whether he had the motivation, willpower, and discipline to stick the program. Harry was persuaded to try it. But that did not change the compelling nature of the argumentative data. As we learned in chapter 1, there is often a disconnection between persuasion (getting people to believe something) and argumentation (presenting a sound case, upon which one may or may not act). Harry’s acceptance of the conclusion did not entail his acting on it. He could have just stuck with the medication.
Implicit in the doctor’s interaction with Harry was an expected threshold for proof. “If I’m going to do this, which would take a Herculean effort, I want to see a powerful case in support of changing my whole life.” Harry is asking the physician to meet a burden of proof, to overcome human psychological inertia, which resists change and movement.
Again, it is the theory of argument that tells us why we would be unlikely to change without someone meeting a burden of proof, one that guarantees our assent, and then perhaps (but not necessarily) moves us to action. The theory of argument tells us that we need a case for change because we presume that not changing is desirable, or at very least benign. In other words, most of the time and in most situations, we can pretty much continue to do things the way we have traditionally done them, without deleterious effect. People tend to take the same route to work, eat the same foods, buy the same brand of toothpaste, drink the same beverage, and buy the same brand of automobile. We make the same suppositions day after day, based upon the regularity and predictability of the systems we operate in. It’s OK to cross on green, it’s safe to fly, you can’t put metal in a microwave, and so on.
Staying with the status quo, insisting that any new plan must exceed a high threshold of proof, is so common and ordinary a way of thinking that we often overlook the powerful logic it represents. Although we all try new foods, take alternate routes, or change brands of pop (another brand might be cheaper, and that’s enough justification when money is short), we still tend to stick with what we have and do because we hold the current version of our world basically harmless, or benign. If the world isn’t a danger to us, we can proceed on the notion that today, except for the novelty that keeps us interested, will be a lot like yesterday. When we turn on our computer in the morning, our programs and files—we hope—are still there. When returning home at night, the key still opens the door. Tomorrow morning our alarm clock will awaken us, we presume.
The predictability, safeness, and continuity in our lives, the safeness of presumption, are complementary to the burden of proof. Presumption is the notion that things ought to be perceived as alright so long as no compelling reasons are offered to change that perception. In an earlier example, we talked about John being accused of a crime, and that his attorney was not in any way required to respond to the prosecution’s case. Why? Presumption says that John should be viewed as alright (not a criminal) until such a time as the prosecutor has made a compelling case against him. John’s attorney’s position is that the prosecution has not made the compelling case, and that the trial should not proceed. In other words, the attorney wants the case dismissed (or his client found not guilty) for lack of a compelling case that met the prosecutor’s burden of proof. In doing so the prosecutor would have had to overcome the defense’s presumption (in this case a presumption of innocence), and gain the adherence of the judge and/or jury.
We pointed out before how dangerous it would be for a defense attorney not to present a defense, no matter how weak the prosecution’s case. But we did this to point out that the argumentative burden stays with the prosecutor throughout the entire course of the trial. This notion carries through to all forms of argument. The advocate whose assigned position is to argue against an existing presumption about anything takes on the burden of proving that position, and does so until the argument has been adjudicated.
The presumption attached to the other side of an argument, and which goes well beyond just a presumption of innocence, resides in all existing institutions and states of affairs. Debaters call this the status quo (the way things are), which, with its all-inclusive presumption, is set in opposition to the stance of the advocate carrying the burden of proof. In debate, this stance, the position with the burden, is called the affirmative side of an issue, the side that is attempting to overcome presumption with a compelling case against the status quo. The side in an argument that defends the status quo is called the negative.
In a criminal trial, the prosecutor is in fact the advocate for the affirmative. She is arguing that John, presumed innocent by the status quo, is guilty, by virtue of a compelling case she offers in support of his guilt, a case that, if successful, will overcome the presumption of innocence that our justice system guarantees. Conversely, the defense is the negative, carrying presumption, and will usually argue that the prosecution has not overcome this presumption (calling for a dismissal). In effect, every criminal trial is a living illustration of the principle of burden and presumption, a rule so important that it affects questions of life and liberty.
Every argument has discernible sides. But the sides are not like those at a football game. The playing field is not level. Advocates with the burden of proof have more argumentative work to do; they will be judged by more exacting standards. Although some responsibilities in argument are shared equally