Law as an argumentative practice: On the pitfalls of confirmatory research, false necessities, and (Kantian) stupidity – Comments on Knut Traisbach

The comment expands the logic of the critique of the ‘judicialisation’ in the global era and suggests that arguments in support of this development often engage in confirmatory research which weighs the ‘evidence’ in light of our wishes and political projects. The talk about ‘learning’ and ‘dialogue’ cannot sustain this form of judicial paternalism (at best) as an instantiation of emancipation or celebrate it as a victory for law by dispensing with politics. It is just a politics by other means. But in this politics some traditional remedies for insuring the accountability of the ‘rulers’ (or rule-handlers) have been weakened. The comment adds several critical observations about the practices of discourse, law, politics and judging which cannot camouflage the problem of power and its legitimisation. Thus we had better consider also a political alternative which relies on a variety of different institutional solutions where courts have to compete with other institutions without fixed hierarchies and where different sources of legitimacy stand in tension with each other.

Habermas, Rorty, and the Problem of Competent Interlocutors

In texts such as “Richard Rorty’s Pragmatic Turn” Jürgen Habermas defends a theory that associates, on the one hand, the truth-claim raised by a speaker for a proposition p with, on the other hand, the requirement that p be “defendable on the basis of good reasons […] at any time and against anybody”. This, as is known, has been the target of criticisms by Rorty, who−in spite of agreeing with Habermas on the central tenet that the way of evaluating our beliefs must be argumentative practice−declares that the only “ideal presupposed by discourse” is “that of being able to justify your beliefs to a competent audience”. We will consider two texts from 1971, -surprisingly neglected in most approaches to the debate-, in which Habermas did include such a “competence condition” to elucidate the notion of truth. We will discuss whether there are good reasons to relinquish such a condition and to refer, instead, only to the formal or procedural properties of argumentative exchanges, as Habermas does in presenting the notion of “ideal speech situation”. As we will try to argue, there are no such good reasons.

The Sceptical Inquirer

This article treats of whether scepticism, in particular Pyrrhonian scepticism, can be said to deploy a method of any kind. I begin by distinguishing various different notions of method, and their relations to the concept of expertise (section 1). I then (section 2) consider Sextus’s account, in the prologue to Outlines of Pyrrhonism, of the Pyrrhonist approach, and how it supposedly differs from those of other groups, sceptical and otherwise. In particular, I consider the central claim that the Pyrrhonist is a continuing investigator (section 3), who in spite of refusing to be satisfied with any answer (or none), none the less still achieves tranquillity, and whether this can avoid being presented as a method for so doing, and hence as compromising the purity of sceptical suspension of commitment (section 4). In doing so, I relate—and contrast—the Pyrrhonists’ account of their practice to the ‘Socratic Method’ (section 5), as well as to the argumentative practice of various Academics (section 6), and assess their claim in so doing to be offering a way of instruction (section 7). I conclude (section 8) that there is a consistent and interesting sense in which Pyrrhonian scepticism can be absolved of the charge that it incoherently, and crypto-dogmatically, presents itself as offering a method for achieving an intrinsically desirable goal.

The Jeweled Jurist

In this article, I argue that the Collatio legum Mosaicarum et Romanarum is a persuasive legal text composed in the late antique aesthetic, “the Jeweled Style.” Though the Collatio has been strongly criticized for its apparent lack of sophistication, it represents a legal, textual practice in which the author created an intricate legal display by compiling quotations from the Pentateuch and from Roman legal material. The Jeweled Style, with its themes of juxtaposition, discontinuity, and referentiality, is a useful lens to view the Collatio because it helps us appreciate the aesthetic priorities of the author of the Collatio. Having acknowledged the Jeweled Style in the Collatio, I employ James Boyd White's notion of law as “constitutive rhetoric” to explain why an artistic aesthetic would appear in legal practice. In White's definition, law is an argumentative practice composed in culturally specific settings. These settings condition the practice of law so much so that, when we analyze legal texts, we should be sensitive to their cultural contexts.

What Feels Right: Ethics, Intuition, and the Experience of Narrative

This chapter demonstrates how literary theory bears the mark of the ethical debates of the nineteenth century. Through a reading of Elizabeth Gaskell's Mary Barton (1848) and Charles Dickens's Hard Times (1854), as well as a discussion of a number of classic narrative theorists, it shows how narrative theory, underwritten by a principle of forward compulsion through the text, reiterates the position of the intuitionist thinkers of the Victorian period. Both novels are examples of what people have come to call the “industrial novel,” or the “social problem novel”: a set of novels that focus on the condition of the working class. There is a strongly felt, if sometimes vague, ethical message in these novels' focus on the human misery inherent in capitalism: a general sense that it is necessary to treat other humans by some other standard than the bottom line. The chapter then considers the philosophical arguments of Bernard Williams—famous for his use of small narratives as philosophical argument—and suggests how narrative form, having subsumed the tenets of intuitionism, itself became an effective argumentative practice.

PRE-SERVICE CHEMISTRY TEACHERS´ BELIEFS ABOUT ARGUMENTATION AND ARGUMENTATIVE PRACTICE

The purpose of this research was to gain an understanding of pre-service chemistry teachers’ beliefs about argumentation and argumentative practice in the context of school after they have participated in intentional argumentation training. A month after completing their training, the researchers conducted interviews with them and analyzed the responses using the content analysis method in which there are a de-contextualisation, re-contextualisation, categorization, and compilation of information. The results show that pre-service chemistry teachers´ beliefs about argumentative practice are in line with the literature of the area. Keywords: argumentative practice, content analysis, pre-service chemistry teachers.

Pyrrhonian Argumentation: Therapy, Dialectic, and Inquiry

The Pyrrhonist’s argumentative practice is characterized by at least four features. First, he makes a therapeutic use of arguments: he employs arguments that differ in their persuasiveness in order to cure his dogmatic patients of the distinct degrees of conceit and rashness that afflict them. Secondly, his arguments are for the most part dialectical: when offering an argument to oppose it to another argument advanced by a given dogmatist, he accepts in propria persona neither the truth of its premises and conclusion nor the validity of its logical form. Thirdly, he avails himself of arguments in his own open-minded inquiry into the truth about a wide range of topics. Fourthly, Pyrrhonian argumentation is oppositional inasmuch as it typically works by producing oppositions among arguments that appear to the Pyrrhonist to be equipollent. In this article, I focus on the first three features with the aim of both shedding some light on them and determining whether they are in tension or coherently relate to each other.

Sources in Interpretation Theories

It is generally recognized that interpretations do not take meanings from norms but give meanings to them. In this way, the practice of interpretation contributes to the process of international law-making. The chapter takes as a starting point the understanding of interpretation in international law as an argumentative practice about the meaning of legal norms. It asks which meaning interpreters should give to a norm and how they should justify their interpretative choices. Turning from the rule of interpretation to the reality of the practice, the chapter further asks, ‘What do interpreters do when they interpret?’ It draws attention to the power that interpreters exercise and to the biases that they maintain. In conclusion, the chapter stresses that it is necessary to keep a keen eye on the role of power and rhetoric in the interpretative practice that makes international law.