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CRITICAL LEGAL THINKINGINTRODUCTION: WHAT IS AN ARGUMENT?Conditional Sentences “if___, then ___”: Antecedent: if___ Consequent: then___ If p, then q Form of an Argument(1) If p, then q (premise 1: a conditional sentence) (2) p (premise 2: affirms the antecedent of premise (1)) Therefore (from (1) an...

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CRITICAL LEGAL THINKING INTRODUCTION: WHAT IS AN ARGUMENT? Conditional Sentences • “if___, then ___”: • Antecedent: if___ • Consequent: then___ • If p, then q Form of an Argument (1) If p, then q

(premise 1: a conditional sentence)

(2) p

(premise 2: affirms the antecedent of premise (1))

Therefore (from (1) and (2)), (3) q

(conclusion: the consequent of premise (1))

Definitions • Argument: a group of at least two claims arranged in a particular way A group of claims is arranged as an argument when (a) one of the claims (the ‘conclusion’) is treated as controversial (a claim to be defended, established argued for); and (b) the other claim(s) (the ‘premises’) are put forth as claims meant to support or establish the conclusion. • An argument is valid when the conclusion follows from the premises (when the premises imply the conclusion) • A valid argument is sound when all the premises are actually true EXAMPLE 1: “Prisoners should be allowed to vote, because criminal sanctions should aim at the rehabilitation of offenders.” “First-order” claim: • prisoners should be allowed to vote + criminal sanctions should aim at rehabilitation 1.

Claim being argued

2. Claim given in support of the first claim “Second-order” claim: • (implicit claim): a claim about the two other claims and how they relate • the claim that the first claim is supported by the second • “because": indication of implicit third claim EXAMPLE 2: “Prisoners should be allowed to vote, because the sky is blue.” • It is simultaneously possible that (a) the premise is true, and (b) the conclusion is false: i.e. the conclusion does not follow from the premise • The premises of the argument do not entail / imply the conclusion (the conclusion is not entailed by the premises)

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Implicit Premises • The single premise of Example 1 fails to establish its conclusion • Arguments are enthymematic: an enthymeme is an incompletely stated argument • We must consider the claims that are reasonable to attribute to the arguer as claims which (a) she believes to be true, or (b) she is implicitly appealing to or relying on as she argues for her conclusion Conditional Sentences • A conditional sentence embeds both the antecedent sentence and the consequent sentence, but does not assert itself • Someone may assert the conditional claim itself Validity and the Form of an Argument • All conditional sentences are instances of the same structure Valid argument form: modus ponens (1) If p, then q. (2) p, Therefore (from (1) and (2)), (3) q. (1) a conditional sentence, and (2) the assertion of the antecedent of that conditional sentence, in order to derive, as a conclusion (3) the consequent of that conditional sentence If all premises are true, the conclusion must be true Validity and Deduction • Deductive arguments: arguments that purport to be such that, if its premises are true, its conclusion will certainly be true (set to be valid arguments, therefore can fail by being invalid) • Inductive arguments: a non-deductive argument • Enumerative induction: an argument that purports to ground, by generalisation, a universal claim, on the basis of a number of premises about particular items Introduction to Arguments (Salmon, Merrilee H) Recognising Arguments • Identify the conclusion • Ask what assertions, if any, are intended as support or evidence (premisses) • To determine whether an argument is present: 1. What point is the speaker or writer trying to make? 2. Is the speaker or writer presenting evidence to support the truth of some assertion?

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A. W. Sparkes, Talking Philosophy: A Wordbook (Routledge 1991), Sections 4.1 to 4.8 (pages 75-84)

IFF

Infer, Inference

• ‘If and only if’

1.

Inferring: done by arguers

2.

Valid inference: conclusion is implied by premises

Infer, Inference (i)

Imply and Implication; Entail and Entailment

To infer is to draw a conclusion:

A. Implication:

(ii) The word ‘inference’ is used to refer to both the

a synonym for 'give reason to assert’

process of drawing a conclusion and to the product,

B. Entail, entailment:

the conclusion itself

Synonymous with ‘imply'

Innuendo; Suggestio Falsi, Suppresio Veri

Argue, Argument

A. Innuendo: “to intimate”: e.g. to imply

(i)

untrustworthiness

A piece of discourse consisting of one proposition (the conclusion) and one or more other propositions

B. Suggestio falsi: “suggestion of the false”

(the premiss or premisses) which are put forward as

C. Suppressio veri: “suppression of the true”

reasons for assenting to the conclusion (ii) A dialectical argument

Transition-markers

Premise, premises

• Words that indicate an argumentative transition is

• Statements used to support a conclusion

being made, i.e. indications that the speaker is putting forward some propositions as support for another proposition • Not all arguments contain marker-words (a) Three little words: ‘because’, ‘because’ and ‘because’ (b) ‘therefore’: usually argumentative, but may be explanatory (c) ‘because’ and ‘therefore’: ‘because’ in its argumentative sense is related to ‘therefore’ (d) ‘since’: may be argumentative, state a reason for action (virtually synonymous with ‘because’) (e) ‘hence’: argumentative ‘hence’ is virtually synonymous with ‘therefore’ (f) ‘so’: argumentative marker (g) ‘it follows that…’: this statement is shown to be true by the statements I have just made

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FUNDAMENTAL LEGAL CONCEPTS Legal Positions EXAMPLE 1: Audrey has, towards Benedict, a duty to pay Benedict £50. = Benedict has, against Audrey, a right that Audrey pay him £50. • This describes a “right” in the sense of the correlative of a duty: this is a right in the strict sense (a “claim-right”) • Rights in the strict sense (claim-rights) always refer to someone else’s action: they refer to the duty holder’s action EXAMPLE 2: Audrey has, towards Benedict, a duty to pay Benedict £50. It is not the case that Audrey has, towards Benedict, a duty to pay Benedict £50. • The second sentence is the negation of the first: they are contradictory sentences • If the negative sentence is true, it also tells us about Audrey’s position relative to (a) Benedict and (b) her action of paying Benedict £50: She does not have a duty to pay Benedict £50. • The negation of a legal position is itself a legal position: to refer in positive terms to the position that corresponds to the absence of a duty, we use the term “liberty” • The negation of a duty to do something is a liberty not to do it • The negation of a duty not to do something is a liberty EXAMPLE 3: It is not the case that Audrey has, towards Benedict, a duty to pay Benedict £50. = Audrey has, towards Benedict, a liberty not to pay Benedict £50. • “right” can therefore be used to refer to someone’s liberty to do (or not to do) something • Liberties always refer to the liberty-holder’s own action

Duty

No-right

Right

Liberty not

• It is not the case that Audrey has, towards Benedict, a duty to pay Benedict £50 = Audrey has, against Benedict, a liberty not to pay Benedict £50. (positive content) • It is not the case that Audrey has, towards Benedict, a duty to not assault Benedict = Audrey has, against Benedict, a liberty not not to assault Benedict. (negative content) The negation of a duty to do something is a liberty not to do it The negation of a duty not to do something is a liberty to do it • To say “Audrey has, against Benedict, a liberty not to pay Benedict £50.” Is the same as saying that “Benedict has, against Audrey, a no-right that she pay him £50.” • Duty and right are correlative positions: they entail each other with respect to (a) the same action, and (b) the other person in the relation

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• Duty and liberty not are contradictory positions: they exclude each other with respect to (a) the same action, and (b) the same person in the relation • Liberty not and no-right are correlative positions • No-right and right are contradictory positions Rights and Liberties A’s positions

B’s positions

A has, towards B, a duty not to hit below the belt.

B has, against A, a right not to be hit by A below the belt.

A has, against B, a right not to be hit below the belt.

B has, towards A, a duty not to hit A below the belt.

A has, against B, a liberty to hit B according to the rules.

B has, against A, a no-right not to be hit by A according to the rules.

A has, against B, a no-right not to be hit by B according to the rules.

B has, against A, a liberty to hit A according to the rules.

Complete Statements of a Legal Position • The statement will specify: (b) The person holding the position; (c) the actual position; (d) the action that is the content of the position, and (e) the other person relative to whom the position is held • Note: when we deny that someone has a certain position, we assert that they have the contradictory position • If I have a right, all that means is that someone else has a duty: my right is a right that they do something, which means that they have the duty to do it • If I have a liberty, all that means is that I do not have a duty: my liberty is a liberty to do something, which means that I do not have a duty not to do it Complete Diagram of Legal Positions

Duty

No-right

Liability

Disability

Right

Liberty not

Power

Immunity

• A power is the ability to change someone else’s legal positions • e.g. J has, against D, the power to impose a duty on D to pay damages to C. D is liable, towards J, to having a duty to pay damages to C imposed on him by J. D has a liability, towards J, to having a duty to pay damages to C imposed on him by J. • The contradictory of a liability is an immunity • The correlative of an immunity is a disability • The contradictory of a power is a disability

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Fundamental Legal Positions • There are eight fundamental legal positions • There are four different understandings of what “right” may mean • There are four pairs of correlatives • There are four pairs of contradictories • There are two independent families of legal positions: rights and powers Luís Duarte d’Almeida, “Fundamental Legal Concepts” 1. Introduction • Wesley Newcomb Hohfeld: analytical scheme presented in 1913 and 1917 essays on “Some Fundamental Legal Conceptions as Applied Judicial Reasoning”: Hohfeldian analysis is used to avoid some fallacious ways of arguing 2. Legal (Or “Jural”) Relations EXAMPLE Audrey has, towards Benedict, a duty to pay Benedict £50. • The statement tells us something about one particular relation: a legal relation between Audrey and Benedict (also known as “jural” relations) • Content is a positive action (Audrey’s action of paying Benedict £50): “positive content” EXAMPLE Audrey has, towards Benedict, a duty to not assault Benedict. (completely clear about the content of Audrey’s duty) • Content of the duty: an omission: “negative content” 3. Legal Positions, The Notion of a Jural Correlative, And the Duty/ Right Contrast EXAMPLE Audrey has, towards Benedict, a duty to pay Benedict £50. = Benedict has, as against Audrey, a right that Audrey pay him £50. • Every legal relation involves two positions: one for each of the parties to the relation: each of the two positions correlates with the other: correlatives • Correlative positions entail each other with regard to: (a) the same action (performed by the same person) and (b) the other party in the relation EXAMPLE Benedict has a right to vote: incorrect • Claim-rights always concern an action or omission by someone else: the correlative duty-holder There can be no such thing as a right to do or refrain from doing anything • Conclusion: when we speak of someone’s “right” to vote (or “right” to do or refrain from doing something), what we mean by “right” must be something other than claim-right

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4. Negation, The Notion of a Contradictory, And The “Duty”/ “Liberty Not” Contrast EXAMPLE (1) Audrey has, towards Benedict, a duty to pay Benedict £50. (2) It is not the case that Audrey has, towards Benedict, a duty to pay Benedict £50. • statement (2) is a negation of statement (1): the two statements contradict each other • Second sense of the term “right”: a sense of not having a duty to do (or refrain from doing) something (“rights” in this sense are not having a duty: “liberty”) • Liberty: introduced to enable us to state in positive terms the legal position which can also be stated in negative terms as the position of not having a duty to do something EXAMPLE It is not the case that Audrey has, towards Benedict, a duty to pay Benedict £50. Audrey has, towards Benedict, a liberty not to pay Benedict £50. • Both mean the same thing (one is cast in negative terms) • The contradictory of Audrey’s duty to pay Benedict £50 is a liberty not to pay Benedict £50 • Two contradictory positions deny each other with regard to (a) the same action by (b) the same person in the relation EXAMPLE Audrey has, towards Benedict, a duty not to assault Benedict. • The content of this duty is a negative action (an “omission”) • Contradictory: Audrey has, towards Benedict, a liberty not not to assault Benedict.= Audrey has, against Benedict, a liberty to assault Benedict. The first “not” is part of the name of the position and the second “not” is part of the content Summary • The contradictory of a duty is a liberty not • The contradictory of a duty to do something (a duty with positive content) is a liberty not to do it (a liberty not with positive content) • The contradictory of a duty not to do something (a duty with negative content) is a liberty not not to do it (a liberty not with negative content) • We can “cross out” the double negation whenever we are speaking of a liberty not not to do something: we can also say that the content of a duty not to do something (a duty with negative content) is a liberty to do it: it is a liberty not not to do it (a) The contradictory of a duty to do something is a liberty not to do it. (b) The contradictory of a duty not to do something is a liberty to do it. • Given that the assertion of any legal position is equivalent to the negation of its contradictory: Liberty to… = no duty not to … Liberty not to… = no duty to … Duty to … = no liberty not to … Duty not to … = no liberty to …

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• Right: an entitlement to some action (or omission) by someone else, and as such it involves the idea of something that the right-holder is in a position to demand or claim • Liberty: a negative idea: the absence of a duty (to have a liberty to do a certain action does not involve the idea of being in a position to claim anything from anyone: it involves solely the idea of the libertyholder not having a duty not to do that action) 5. Liberties and “No-Rights” EXAMPLE Audrey has, towards Benedict, a liberty not to pay Benedict £50. • Audrey has no duty to pay Benedict £50: it is not the case that Audrey has a duty to pay Benedict £50. • Every legal relation involves two correlative positions: Benedict occupies a position which is the correlative of Audrey’s “liberty not”: “no-right” In negative terms: Benedict has, as against Audrey, no right that Audrey pay Benedict £50. = It is not the case that Audrey has, towards Benedict, a duty to pay Benedict £50. = Audrey has, towards Benedict, no duty to pay Benedict £50. • The correlative of a duty is a claim right: so if it is asserted that it is not the case that Audrey has a duty to pay Benedict £50m then it cannot be the case that Benedict has the correlative right that Audrey pay him £50 It is not the case that Benedict has, against Audrey, a right that Audrey pay him £50. Benedict has, as against Audrey, no right that Audrey pay Benedict £50. Audrey has, towards Benedict, a liberty not to pay Benedict £50. EXAMPLE Audrey has, as against Benedict, a liberty not not to play the piano (double negation can be “crossed out” to mean: Audrey has, as against Benedict, a liberty to play the piano) • Correlative of liberty not: Benedict has, as against Audrey, a no-right that she will not play the piano (a no-right with negative content) • Generally: (c) The correlative of X’s liberty, relative to Y, to do something, is Y’s no-right that X not do it. (d) The correlative of X’s liberty, relative to Y, not to do something, is Y’s no-right that X do it. 6. Single Liberties and Paired Liberties COMPARE: Audrey has, towards Benedict, a liberty not to pay Benedict £50. Audrey has, towards Benedict, a liberty to pay Benedict £50. • Audrey could have both these liberties • A duty to do something is the contradictory of a liberty not to do it • Would it be possible for Audrey to have only one of these two liberties, but not the other? Suppose Audrey enters into a contract with Benedict, as a result of which she is now under a duty to pay Benedict £50 (a duty to do something is the contradictory of a liberty not to do it) If she is under a duty to pay Benedict £50, she does not have the liberty not described

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She still has the liberty to pay Benedict £50: she is under no duty not to pay Benedict £50 (If she does pay Benedict £50, she will be breaking no duty owed to Benedict) She could simultaneously have the liberty to pay Benedict £50, but not have the liberty not to pay Benedict £50; or vice versa. • One often has both a duty and a liberty to do the same thing: a liberty to do something is compatible with a duty to do it 7. Rights and Liberties: Why the Distinction Matters • Generally when we refer to the things we “may” legally do: we have no duty not to perform it: we have a liberty EXAMPLE: Lord Lindley’s opinion in Quinn v Leathem: Premise: Leathem had, as against any other individual, including Quinn, a right to earn his living in his own way, including the right to deal with other persons willing to deal with him. Conclusion: Therefore, every other individual, including Quinn, was under the correlative duty not to prevent him from earning his living in his own way and from dealing with other persons willing to deal with him. • The premise does not support the conclusion • Premise: “right” is used incorrectly (premise should be in terms of liberties) Restructured: Premise: Leathem had, as against any other individual, including Quinn, a liberty to earn his living in his own way, including the liberty to deal with other persons willing to deal with him. • Conclusion does not follow: the correlative of a liberty is a no-right: therefore what follows is Quinn’s correlative no-right that Leathem not earn his living in his own way. 8. Rights and the “Protection” of Liberties • A liberty to do (or refrain from doing) something does not imply a right not to be interfered with in doing it • My doing something and your not interfering with my doing it are two different actions, which therefore must form the object of two different, independent legal relations • A has no right that B prevent them from performing their liberties 9. Constructing a Table of Correlatives and Contradictories

CONTRADICTORIES Duty

Liberty not

Right

No-right

CORRELATIVES

OR

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POSITIVE CONTENT

NEGATIVE CONTENT

CONTRADICTORIES CORRELATIVES

Duty to do something

Liberty not to do something

Right that someone do something

No-right that someone do something

CONTRADICTORIES Duty not to do s...