Making Arguments: Reason in Context. Edmond H. Weiss
both sides adding new evidence, additional sub-arguments, nuanced changes in propositions. The claims, evidence, and responses of the arguers must grow, in order to accomplish more detailed justifications of the claims among disputants. An argument that does not advance, that sits on its original claims and evidence, that fails to extend beyond its initial form and support, risks failing in light of an opposing case that is being extended and developed beyond its initial state.
Responsibility V—Consistency
The logical and rational characteristics of argumentation oblige arguers to be consistent. The boundaries of argumentation are such that an advocate cannot “have it both ways,” arguing P at one point and NOT P at another. Because of the burden of proof (whether assigned or natural to the situation), one party to an argument has a particular obligation to advance a consistent case.
One softening of the requirement for consistency benefits advocates opposed to the resolution (the negative, or the side with presumption). Because such advocates needn’t meet a burden of proof, they can, essentially, “have it both ways,” without compromising the integrity (or consistency) of an argument. A defense attorney might argue: “There is little evidence that my client committed this crime, but you can see that if he did commit this, he was totally justified in his actions, and that his actions should not even be construed as a crime by those standards.”
The prosecution, which has the burden of proof, cannot be this flexible or capricious. The required consistency inherent in the burden of proof would not allow an advocate to advance what are ostensibly incompatible claims. The prosecutor will not argue: “Even though this defendant was justified in his actions, he still needs to be punished.”
The requirement for consistency, a responsibility for all arguers, extends to the smallest level of argument, where each sub-argument needs to be advanced in the context of such exacting standards as non-contradiction. More broadly, however, one side in an argument (the affirmative) appears to need to adhere to a more rigorous standard of consistency; this suggests a certain imbalance, an inevitable consequence of dividing issues along the lines of those who must prove, and those who must defend against that proof. Advocates with a presumption in favor of their position (the defenders) need not be so consistent in their overall position; they may fend off the position of the affirmative in several ways, with independent lines of reasoning, and not worry as much about the internal consistency of their defense.
Responsibility VI—Resolution
Argument is purposive activity. Arguments take place for a reason. Argument is undertaken in anticipation of judgment. How an argumentative situation resolves itself is as important as the entire process. In a courtroom an argument is resolved by presentation of a verdict (or some other outcome). Advocates seek judgment: a deliberative assembly takes a vote; debaters hear the decision of a judge; a community of scholars weighs in on a scientific or interpretive finding. The idea that arguments resolve, that they are judged, drives human beings to continue to make them. Even the most sportive disputes—like games of skill with final scores—adhere to this standard. Every debater seeks a particular outcome—and it is rarely compromise or negotiation.
Responsibility VII—Behavior
All the responsibilities presented this far all lead to a final set of responsibilities that cluster under the heading of behavior: namely, how arguers ought to act, the things arguers ought to do as they argue and present cases.
•Arguers need to ask questions and follow up on the answers they receive. Part of argumentation is the process of silent inquiry. For arguments to extend, develop, and be resolved, all relevant information for judgment must be ascertained and evaluated.
•Arguers should be able to crystallize their arguments. By the end of a dispute, debate, trial, or deliberation, an advocate should be able to define clearly all the key issues and arguments that he or she wants to have the decision-maker examine in rendering judgment.
•Arguers must enlarge the scope of argumentation as a controversy progresses. Argument is vital, alive, dynamic, and fluid. The arguers respond by keeping the argument alive, keeping it growing, and feeding it. They offer new evidence, new arguments, new lines of reasoning. They are creative and adaptive to the demands of the unfolding argument.
•Arguers recognize their role in the debate. They are always mindful of their responsibilities. An arguer asks, “What do I need to be doing now? What do I need to learn so as to advance my side of the case?” On the affirmative side of the case, an advocate needs to ask: “Am I meeting my burden of proof? Have I presented a prima facie case for change, and am I continuing to uphold my burden?” On the negative side the advocate needs to find out if he or she is exploiting the power of presumption, and the inherent flexibility that exists within it.
•Arguers must improvise and adapt to the situation. Argument can be a bit of a dance, but the steps are not choreographed. At some junctures in an argument, advocates can go in an entirely unplanned direction. So long as parties to one’s position are on board with these adaptations, they can be effective alterations to argumentative strategy with often astonishing results. Indeed, sticking stubbornly to a rigid argumentative road map may severely hamper one’s advocacy.
•Arguers exhibit intellectual humility. They know when an argument is not succeeding, and when to jettison it. A strong argument can be salvaged by relinquishing a weak one that is along for the ride, but which is not helping the overall cause of the argument. Realistic expectations help an arguer decide what arguments to jettison, and which to strengthen.
•Arguers don’t seek perfection. Argumentation operates in the area of the contingent, embracing uncertainty at every turn. There is no perfect argument, no slam-dunk case that proves something with mathematical certainty. Argument is about probabilities, likelihoods, and controversial courses of action.
All these responsibilities demand the ability to listen carefully to what everyone else is saying and, when appropriate, respond or adapt. Although listening is hard to do, especially when one is under pressure and planning what to say next, it is the only way to keep the argument moving forward and expanding. And it is the only way to win.
Projects and Thought Experiments
1.What is your most formal experience as an advocate? What were the circumstances and where did the rules of argument and procedure come from? How did it go? Did the formal “technicalities” ever prevent true facts and good ideas from being appreciated?
2.What aspects of your daily life involves argumentative activity? With whom do you argue regularly and in what settings? How can studying argumentation improve those? If it cannot help, why not?
3.Have you ever observed a trial? Were you surprised by the way arguments were presented and refuted? Was the outcome just? If not, why not?
4.Do you argue with yourself? Why do you think people do this?
5.The philosopher Schopenhauer said that people can “do what they will, but they cannot will what they will.” Are free will and independent decision-making an illusion? If not, why not?
Chapter 3: Judging Arguments
Types of Judges
The judgment of an argument cannot be separated from its creation. When we create arguments, we inevitably anticipate and adapt to the eventual judging of those arguments. Arguers argue with the judge in mind. Making an argument means not just outlining, diagramming, writing, planning, and evidencing it. It also means preparing it and laying it out for someone’s consideration. In argumentation, the judge is the essential component that connects every strategy, device, and tactic of advocacy. For the arguer, it ought to be who is judging that determines how arguments are assembled. For the advocate, not paying attention to the centrality of judgment