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legal - court of law - focuses on "past fact"
method: accusation / defense
one of Aristotle's two types of arguments |
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an actuative argument regarding a policy or legislative stance - one of Aristotle's 2 types of arguments
focuses on a future fact
primary methodology is weighing advantages against disadvantages |
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A question for which we are seeking an answer
yes or no |
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points when the argumentative process is brought to a halt (or impasse) by the collision of thesis and antithesis. there are 4 major points of stasis for criminal law |
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| 4 points of stasis in criminal law |
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Definition
1. An sit - question of fact/conjecture
2. quid sit - question of definition or legal interpretation
3. quale sit - question of justification - absolute justification or partial justification
absolute - weighing having done vs not having done, ex self-defense or euthanasia
partial - applies more to sentencing - ex, person was not in their right mind
4. procedure - getting off on a technicality - ex mirandizing
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1. probability- motive can help to show this but is not enough on its own
2. comparison - comparing the accused's motives to others who could have done it
3. circumstantial evidence - indirect evidence that raises the probability of guilt
4. proof - in this application, can be past proof, contemporary or subsequent
a. past- things that occured prior to the deed
b. contemporary - ex witnesses
c. subsequent - ex fingerprints
5. consequence - behavior of suspect after deed, ex OJ running away, reaction of defendant to evidence
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| 1. scriptum et sententia - "letter vs the meaning or spirit of the law" - should it be taken literally |
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| an existing institution, policy or practice whose preoccupation of ground suggests that it remain until sufficient reasons are presented |
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| preponderance of evidence |
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| present in the French judicial system, instead of proof "beyond a shadow of a doubt," must prove only "more likely than not" |
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| Why do we use concepts like presumption and burden of proof? |
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Definition
1. risk of change
2. humans are conservative (more comfortable with familiarity)
3. things exist for a reason - if we assume that things exist for a reason, we must also have a good reason to change them
4. inertia - no to act is to act |
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| The Steps of Hypothesis Testing in Science |
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1. Review literature - find what is known
2. gap/problem - find what is not known
3. hypothesis - an educated guess
5. testing - confirming the hypothesis |
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| "face value" - idea that your argument must stand on its own, regardless of what your opposition did |
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| Steps in Meeting the Burden of Proof |
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1. significance - affirmative advocate must make indictment of status quo and show what is harmful about status quo
a. quantitative vs qualitative evidence
2. inherency - not only does the problem exist, but it will not go away because the status quo cannot change it
3. Plan - what will the new structure be?
4. showing what needs the plan will meet - goes back to things discussed at level of significance
a. circumvention
b. counter causality
5. Disadvantage argument - the liabilities/costs of this plan outweigh its possible benefits |
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| 3 words used to measure harm of status quo |
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Definition
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| What are the "need issues"? |
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| significance and inherency, because they explain why the status quo "needs" to change |
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| presenting a "minor repairs" argument |
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| suggesting slight alterations to the status quo instead of a complete overhaul - car analogy |
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| the assumption that the audience has the power to change the status quo |
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| Plan Meet Need Arguments - a negative strategy |
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1. Circumvention - methods or ideas of how people may try to bypass the new structure - where there's a will, there's a way - can you legislate attitudes?
a. affirmative might say they will fix loopholes
b. negative will just say
2. Counter-causality - we agree that there is an inherent and significant problem, but we do not think that your plan will change the status quo |
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