Our varied communities of discourse face a rhetorical future shaped by juridical styles reminiscent of the "adversary culture" postulated by post-war American critic Lionel Trilling. Itself the subject of litigious debate. the adversarial spirit today shows few signs of weakening, but its influence can be better understood and guided along certain tracks. To influence this adversarial style in coming decades, we need to explore the difference between evidencebased reasoning, which draws on the sensationalist logic ofinduction. and (...) class='Hi'>reflexive reasoning, which draws on the second-order logic of presumption. Understanding the structures and dynamics of this reflexive style forces us to address our responsibilities as speakers, as we seek to shape our rhetorical future. Close examination of adversarial contlict may lead us toward useful consensus on how the new game should be played. (shrink)

The notion of burden of proof and its companion notion of presumption are central to argumentation studies. This book argues that we can learn a lot from how the courts have developed procedures over the years for allocating and reasoning with presumptions and burdens of proof, and from how artificial intelligence has built precise formal and computational systems to represent this kind of reasoning. The book provides a model of reasoning with burden of proof and (...) presumption, based on analyses of many clearly explained legal and non-legal examples. The model is shown to fit cases of everyday conversational argumentation as well as argumentation in legal cases. Burden of proof determines under what conditions an arguer is obliged to support a claim with an argument that backs it up and how strong that argument needs to be to prove the claim in question. (shrink)

The notions of burden of proof and presumption are central to law, but as noted in McCormick on Evidence, they are also the slipperiest of any of the family of legal terms employed in legal reasoning. However, recent studies of burden of proof and presumption (Prakken et al. 2005; Prakken and Sartor 2006). Gordon et al. (2007) offer formal models that can render them into precise tools useful for legal reasoning. In this paper, the various (...) theories and formal models are comparatively evaluated with the aim of working out a more comprehensive theory that can integrate the components of the argumentation structure on which they are based. It is shown that the notion of presumption has both a logical component and a dialectical component, and the new theory of presumption developed in the paper, called the dialogical theory, combines these two components. (shrink)

Presumption is a complex concept in law, affecting the dialogue setting. However, it is not clear how presumptions work in everyday argumentation, in which the concept of “plausible argumentation” seems to encompass all kinds of inferences. By analyzing the legal notion of presumption, it appears that this type of reasoning combines argument schemes with reasoning from ignorance. Presumptive reasoning can be considered a particular form of reasoning, which needs positive or negative evidence to carry a (...) probative weight on the conclusion. For this reason, presumptions shift the burden of providing evidence or explanations onto the interlocutor. The latter can provide new information or fail to do so: whereas in the first case the new information rebuts the presumption, in the second case, the absence of information that the interlocutor could reasonably provide strengthen the conclusion of the presumptive reasoning. In both cases the result of the presumption is to strengthen the conclusion of the reasoning from lack of evidence. As shown in the legal cases, the effect of presumption is to shift the burden of proof to the interlocutor; however, the shift a presumption effects is only the shift of the evidential burden, or the burden of completing the incomplete knowledge from which the conclusion was drawn. The burden of persuasion remains on the proponent of the presumption. On the contrary, reasoning from definition in law is a conclusive proof, and shifts to the other party the burden to prove the contrary. This crucial difference can be applied to everyday argumentation: natural arguments can be divided into dialectical and presumptive arguments, leading to conclusions materially different in strength. -/- . (shrink)

In this paper, a solution to the problem of analyzing burden of proof in argumentation is developed by building on the pioneering work of Erik C. W. Krabbe on metadialogues. Three classic cases of burden of proof disputes are analyzed, showing how metadialogue theory can solve the problems they pose. The solution is based on five dialectical requirements: (1) global burden of proof needs to be set at the confrontation stage of a dialogue, (2) there need (...) to be special mechanisms for resolving disputes about burden of proof at all four stages of the dialogue, (3) they are especially significant during the argumentation stage, where burden of proof often shifts back and forth at each move, (4) such local shifts need to be partly regulated by the global burden of proof already set, and (5) the connection between burden of proof and the speech act of making a presumption in a dialogue needs to be clarified. (shrink)

In their paper ‘Responsibility, second opinions and peer-disagreement: ethical and epistemological challenges of using AI in clinical diagnostic contexts’, Kempt and Nagel discuss the use of medical AI systems and the resulting need for second opinions by human physicians, when physicians and AI disagree, which they call the rule of disagreement.1 The authors defend RoD based on three premises: First, they argue that in cases of disagreement in medical practice, there is an increased burden of proof for the (...) physician in charge, to defend why the opposing view is adopted or overridden. This burden for justification can be understood as an increased responsibility. In contrast, such burden does allegedly not arise, when physicians agree in their judgement. Second, in those medical contexts where humans collaborate with humans such justification can be provided, since human experts can discuss the evidence and reasons that have led them to their judgement, through which the sources of disagreement can be found and a justified decision can be made by the physician in charge. Third, unlike human-to-human collaboration, such communicative exchange is not possible with an AI system. Due to AI’s opacity, the physician in charge has no means of illuminating why the AI disagrees. Conclusively, the authors propose RoD as a solution. RoD suggests that a second human expert should be consulted for advise in cases of human–AI disagreement. Once AI systems become more widespread in clinical practice, it can be expected that such type of disagreement occurs more frequently. AI, after all, is being implemented, because it promises, among others, higher accuracy, which implies that some abnormalities will be detected that the physician would have missed.2 Hence, it is laudable to discuss the moral implications of …. (shrink)

An anthology of the most important historical sources, classical and modern, on the subjects of presumptions and burdens of proof In the last fifty years, the study of argumentation has become one of the most exciting intellectual crossroads in the modern academy. Two of the most central concepts of argumentation theory are presumptions and burdens of proof. Their functions have been explicitly recognized in legal theory since the middle ages, but their pervasive presence in all forms of argumentation and in (...) inquiries beyond the law--including politics, science, religion, philosophy, and interpersonal communication--have been the object of study since the nineteenth century. However, the documents and essays central to any discussion of presumptions and burdens of proof as devices of argumentation are scattered across a variety of remote sources in rhetoric, law, and philosophy. Presumptions and Burdens of Proof: An Anthology of Argumentation and the Law brings together for the first time key texts relating to the history of the theory of presumptions along with contemporary studies that identify and give insight into the issues facing students and scholars today. The collection's first half contains historical sources and begins with excerpts from Aristotle's Topics and goes on to include the locus classicus chapter from Bishop Whately's crucial Elements of Rhetoric as well as later reactions to Whately's views. The second half of the collection contains contemporary essays by contributors from the fields of law, philosophy, rhetoric, and argumentation and communication theory. These essays explore contemporary understandings of presumptions and burdens of proof and their role in numerous contexts today. This anthology is the definitive resource on the subject of these crucial rhetorical modes and will be a vital resource to all scholars of communication and rhetoric, as well as legal scholars and practicing jurists. (shrink)

On the standard view, all presumptions share the same deontic function: they asymmetrically allocate the burden of proof. But what, exactly, does this function amount to? Once presumptions are rejected, do they place the burden of arguing, the burden of explanation, or the most general burden of reasoning on their opponents? In this paper, I take into account the differences between cognitive and practical presumptions and argue that the standard accounts of deontic function are at (...) least ambiguous, and likely implausible. As a result, they require qualifications. (shrink)

Human Research Ethics Committee (HREC) reviewers often provide similar feedback across applications, which suggests that the problem lies in researcher awareness of key issues rather than novel, unsolvable challenges. If common problems can be addressed before lodgement by applicants referencing clear evidence-based supports (e.g., FAQs on common application shortcomings), it would improve efficiency for HREC members and expedite approvals. We aim to inform such supports by analysing the patterns in the most frequent feedback made by HREC members during (...) review processes. We collected every instance (_N_ = 4,195) of feedback made on _N_ = 197 ‘low-risk’ protocols by all HREC staff (_N_ = 16) at one institution over the course of a full year (2019). Reflexive thematic analysis to identify themes (and content analysis to determine relative frequency) revealed that the top three themes are consistent with existing literature: Consent, Administrative, and Methodological concerns. However, we identified important new themes that are not captured in previous research, including ‘Risk to Researchers’, ‘Commercial benefit, scope and scale’, ‘Diversity’ (covering issues of cultural sensitivity, language and accessibility), as well as fair right to a complaints process. Our thorough exploration of information-rich primary data marks an important methodological improvement over previous studies and offers a theoretical contribution to understanding themes that have heretofore been overlooked in the ethics review process. By identifying the common challenges experienced in HREC review we can better inform tailored supports to applicants (by extension reducing workload burdens on HREC systems) and reduce their perceived barriers to engaging in challenging but meaningful research. (shrink)

In criminal cases at common law, juries are permitted to convict on wholly circumstantial evidence even in the face of a reasonable case for acquittal. This generates the highly counterintuitive—if not absurd—consequence that there being reason to think that the accused didn’t do it is not reason to doubt that he did. This is the no-reason-to-doubt problem. It has a technical solution provided that the evidence on which it is reasonable to think that the accused didn’t do it (...) is a different subset of the total evidence from that on which there is no reason to doubt that he did do it. It lies in the adversarial nature of criminal proceedings in the common law tradition that the subsets of the total evidence on which counsel base their opposing arguments are themselves different from and often incompatible with one another. While this solves the no-reason-to-doubt problem, it does so at the cost of triggering a second problem just as bad. It is the no-rival problem, according to which incompatible theories of the case based on incompatible subsets of the evidence cannot be rivals of one another. If neither party’s case contradicts the other’s then, by the burden of proof requirement, criminal convictions are impossible. Once having generated the dilemma, the object of the paper is to determine how it might be escaped. (shrink)

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases (...) suggests standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

The article discusses burden of proof rules in social criticism. By social criticism I mean an argumentative situation in which an opponent publicly argues against certain social practices; the examples I consider are discrimination on the basis of species and discrimination on the basis of one's nationality. I argue that burden of proof rules assumed by those who defend discrimination are somewhat dubious. In social criticism, there are no shared values which would uncontroversially determine what is the reasonable (...) presumption and who has the burden of proof, nor are there formal rules which would end the debate and determine the winner at a specific point. (shrink)

The paper considers contemporary models of presumption in terms of their ability to contribute to a working theory of presumption for argumentation. Beginning with the Whatelian model, we consider its contemporary developments and alternatives, as proposed by Sidgwick, Kauffeld, Cronkhite, Rescher, Walton, Freeman, Ullmann-Margalit, and Hansen. Based on these accounts, we present a picture of presumptions characterized by their nature, function, foundation and force. On our account, presumption is a modal status that is attached to a claim and has (...) the effect of shifting, in a dialogue, a burden of proof set at a local level. Presumptions can be analysed and evaluated inferentially as components of rule-based structures. Presumptions are defeasible, and the force of a presumption is a function of its normative foundation. This picture seeks to provide a framework to guide the development of specific theories of presumption. (shrink)

The burden of proof (BOP) fallacy is an informal fallacy involving the failure to recognize or properly assign the BOP in a persuasive reasoned dialogue, that is, an interchange between two or more parties whose aim is to prove or defend a position and, in doing so, persuade the other side of its truth or plausibility. In some such dialogues, the amount or strength of evidence required in order to accomplish this goal reasonably may differ for one of (...) the parties involved. The BOP fallacy can occur in two ways. The first is when one side of the dialogue fails to recognize that its opponent incurs the BOP. The second way the BOP fallacy can occur is when one side of the dialogue assigns the BOP incorrectly. There are still some factors that play a role in determining which side of a dialogue incurs the BOP and this chapter discusses these factors. (shrink)

A common strategy in bioethics is to posit a prima facie case in favour of one policy, and to then claim that the burden of proof falls on those with opposing views. If the burden of proof is not met, it is claimed, then the policy in question should be accepted. This article illustrates, and critically evaluates, examples of this strategy in debates about the sale of organs by living donors, human enhancement, and the precautionary principle. We highlight (...) general problems with this style of argument, and particular problems with its use in specific cases. We conclude that the burden ultimately falls on decision-makers to choose the policy supported by the best reasons. (shrink)

How is the burden of proof to be distributed among individuals who are involved in resolving a particular issue? Under what conditions should the burden of proof be distributed unevenly? We distinguish attitudinal from dialectical burdens and argue that these questions should be answered differently, depending on which is in play. One has an attitudinal burden with respect to some proposition when one is required to possess sufficient evidence for it. One has a dialectical burden (...) with respect to some proposition when one is required to provide supporting arguments for it as part of a deliberative process. We show that the attitudinal burden with respect to certain propositions is unevenly distributed in some deliberative contexts, but in all of these contexts, establishing the degree of support for the proposition is merely a means to some other deliberative end, such as action guidance, or persuasion. By contrast, uneven distributions of the dialectical burden regularly further the aims of deliberation, even in contexts where the quest for truth is the sole deliberative aim, rather than merely a means to some different deliberative end. We argue that our distinction between these two burdens resolves puzzles about unevenness that have been raised in the literature. (shrink)

Public and professional debates have come to rely heavily on a special type of reasoning: the argument-from-ignorance, in which conclusions depend on the _lack_ of compelling information. "I win my argument," says the skillful advocate, "unless you can prove that I am wrong." This extraordinary gambit has been largely ignored in modern rhetorical and philosophical studies. Yet its broad force can be demonstrated by analogy with the modern legal system, where courts have long manipulated burdens of proof with skill (...) and subtlety. This legal, philosophical, and rhetorical study by Richard H. Gaskins provides the first systematic treatment of arguments-from-ignorance across a wide range of modern discourse—from constitutional law, scientific inquiry, and moral philosophy to organizational behavior, computer operation, and personal interaction. Gaskins reviews the historic shifts in constitutional proof burdens that have shaped public debate on fundamental rights and, by analogy, on the fundamental status of intellectual and cultural authority. He shows how similar shifts have dominated polemical battles between scientific and ethical modes of authority, affecting both academic and popular discussion. Finally, he discovers the philosophical roots of default reasoning strategies in the arguments of Kant and nineteenth-century Kantian schools. Concluding that shifting proof burdens are inescapable in a world of scientific and moral uncertainty, Gaskins emphasizes the common strategic ground shared by dogmatic and skeptical reasoning. Using Hegelian strategies, he describes a more pluralistic temper that can move critical thinking beyond polemics and strengthen our capacities for common discourse. (shrink)

To have the burden of proof is to be rationally required to argue for or provide evidence for your position. To have a heavier burden than an opponent is to be rationally required to provide better evidence or better arguments than they are required to provide. Many commentators suggest that differential or uneven distribution of the burden of proof is ubiquitous. In reasoned discourse, the idea goes, it is almost always the case that one party (...) must prove the claim at issue to prevent the opposing view winning by default. The following passage is typical of the sort of thing one finds in critical thinking textbooks. (shrink)

When we use a word, we face a crucial epistemic gap: we ground our move on the fact that our interlocutor knows the meaning of the word we used, and therefore he can interpret our dialogical intention. However, how is it possible to know the other’s mind? Hamblin explained this dialogical problem advancing the idea of dialectical meaning: on his view, the use of a word is based on a set of presumptions. Building on this approach, the use of (...) a word in a dialogue can be analyzed in terms of presumptive reasoning, while the manipulative strategies based on slanted or loaded terms or redefinitions can be conceived as forms of conflicts of presumptions. A presumptive approach to meaning can also ground different dialectical strategies to solve misunderstanding or definitional disagreements, or tactics to undermine the interlocutor’s arguments by advancing charges of equivocation. (shrink)

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive (...) regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted. (shrink)

The question of who has the burden of proof is often important in practice. We must frequently make decisions and act on the basis not of conclusive evidence but of what is reasonable to presume true. Consequently, it happens that a given practical question must be solved by referring to principles that explicitly or implicitly determine, at least partly, where the burden of proof should rest. In this essay, I consider the role of the logic of the (...) burden of proof in a debate on global justice. In particular, I ask how the logic of the burden of proof is seen by those who defend conservative positions in a debate and deny our obligations to reduce poverty beyond borders. I argue that defenders of conservative positions tend to shift the burden of proof in an unjustified way. (shrink)

This paper presents an analysis of the concept of burden of proof in argument. Relationship of burden of proof to three traditional informal fallacies is considered: (i) argumentum ad hominem, (ii) petitio principii, and (iii) argumentum ad ignorantiam. Other topics discussed include persuasive dialoque, pragmatic reasoning, legal burden of proof, plausible reasoning in regulated disputes, rules of dialogue, and the value of reasoned dialogue.

In the recent literature a number of free will skeptics, skeptics who believe that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that (...) level of evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine. (shrink)

Peter van Inwagen's influential Direct Argument (DA) for the incompatibility of moral responsibility and causal determinism makes use of an inference rule he calls "Rule B." Michael McKenna has argued that van Inwagen's defense of this rule is dialectically inappropriate because it is based entirely on alleged “confirming” cases that are not of the right kind to justify the use of Rule B in DA. Here I argue that McKenna’s objection is on the right track but more must be (...) said if we are to see why. To fill in the gaps I consider a recent attempt by Ira M. Schnall and David Widerker to defend DA against McKenna’s objection. I argue that neither prong of their attack is successful against a variation on McKenna’s basic argument. In the course of responding to Schnall and Widerker’s objections to McKenna, I identify what is, as I argue, the real reason DA fails in its purpose to shift the burden of proof. (shrink)

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions—in particular, the disciplinary assumptions—implicit in influential contributions to debates on the (...) presumption of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers routinely treat the presumption of innocence as epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts. (shrink)

We review the definition of the Full Bayesian Significance Test (FBST), and summarize its main statistical and epistemological characteristics. We review also the Abstract Belief Calculus (ABC) of Darwiche and Ginsberg, and use it to analyze the FBST’s value of evidence. This analysis helps us understand the FBST properties and interpretation. The definition of value of evidence against a sharp hypothesis, in the FBST setup, was motivated by applications of Bayesian statistical reasoning to legal matters where the (...) sharp hypotheses were defendants statements, to be judged according to the Onus Probandi juridical principle. (shrink)

I discuss two types of evidential problems with the most widely touted experiments in evolutionary psychology, those performed by Leda Cosmides and interpreted by Cosmides and John Tooby. First, and despite Cosmides and Tooby's claims to the contrary, these experiments don't fulfil the standards of evidence of evolutionary biology. Second Cosmides and Tooby claim to have performed a crucial experiment, and to have eliminated rival approaches. Though they claim that their results are consistent with their theory but contradictory to (...) the leading non-evolutionary alternative, Pragmatic Reasoning Schemas theory, I argue that this claim is unsupported. In addition, some of Cosmides and Tooby's interpretations arise from misguided and simplistic understandings of evolutionary biology. While I endorse the incorporation of evolutionary approaches into psychology, I reject the claims of Cosmides and Tooby that a modular approach is the only one supported by evolutionary biology. Lewontin's critical examinations of the applications of adaptationist thinking provide a background of evidentiary standards against which to view the currently fashionable claims of evolutionary psychology. (shrink)

The problem of establishing the best interpretation of a speech act is of fundamental importance in argumentation and communication in general. A party in a dialogue can interpret another’s or his own speech acts in the most convenient ways to achieve his dialogical goals. In defamation law this phenomenon becomes particularly important, as the dialogical effects of a communicative move may result in legal consequences. The purpose of this paper is to combine the instruments provided by argumentation theory with the (...) advances in pragmatics in order to propose an argumentative approach to meaning reconstruction. This theoretical proposal will be applied to and tested against defamation cases at common law. Interpretation is represented as based on a hierarchy of interpretative presumptions. On this view, the development of the logical form of an utterance is regarded as the result of an abductive pattern of reasoning in which various types of presumptions are confronted and the weakest ones are excluded. Conflicts of interpretations and equivocation become essentially interwoven with the dialectical problem of fulfilling the burden of defeating a presumption. The interpreter has a burden of explaining why a given presumption is subject to default, assuming that the speaker is reasonable and acting based on a set of shared expectations. (shrink)

Song in oscine birds (as in human speech and song) relies upon the rare capacity of vocal learning. Transmission can be vertical, horizontal, or oblique. As a rule, memorization and production by a naïve bird are not simultaneous: the long-term storage of song phrases precedes their first vocal rehearsal by months. While a wealth of detail regarding songbird enculturation has been uncovered by focusing on the apprentice, whether observational learning can fully account for the ontogeny of birdsong, or whether there (...) could also be an element of active teaching involved, has remained an open question. Given the paucity of knowledge on animal cultures, I argue for the utility of an inclusive definition of teaching that encourages data be collected across a wide range of taxa. Borrowing insights from musicology, I introduce the Australian pied butcherbird (Cracticus nigrogularis) into the debate surrounding mechanisms of cultural transmission. I probe the relevance and utility of mentalistic, culture-based, and functionalist approaches to teaching in this species. Sonographic analysis of birdsong recordings and observational data (including photographs) of pied butcherbird behavior at one field site provide evidence that I assess based on criteria laid down by Caro and Hauser, along with later refinements to their functionalist definition. The candidate case of teaching reviewed here adds to a limited but growing body of reports supporting the notion that teaching may be more widespread than is currently realized. Nonetheless, I describe the challenges of confirming that learning has occurred in songbird pupils, given the delay between vocal instruction and production, as well as the low status accorded to anecdote and other observational evidence commonly mustered in instances of purported teaching. As a corrective, I press for an emphasis on biodiversity that will guide the study of teaching beyond human accounts and intractable discipline-specific burdens of proof. (shrink)

According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge state that (...) a person knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)

Using a data set of 30 authentic institutional emails written by Chinese college students to their native English teacher, this article investigates the frequency and combinations of apology strategies used by English as a Foreign Language learners in natural contexts. Drawing on the coding framework adapted from previous studies, this article carries out a fine-grained analysis of apology behaviors of Chinese EFL learners when they offended their teacher for various reasons. Results revealed that the most frequently used strategy was illustrative (...) force indicating devices, and “IFIDs + taking on responsibility” ranked the most frequent combination. Among IFID sub-strategies, an expression of regret had the highest frequency. In addition, a new strategy—request for a chance to repair—was identified, which was used by Chinese learners to show their respectful and pious attitude when a more serious offense was made to their teacher. Findings from the study indicate that Chinese EFL learners tend to use culture-specific apology strategies in academic contexts. This study has pedagogical implications for EFL pragmatics instruction in Chinese contexts and also second language pragmatics instruction tailored for native Chinese learners in English-speaking countries. (shrink)

These two small works are a good supplement to Rescher’s recent trilogy. Whereas the systems-theoretic approach is employed in Methodological Pragmatism in dealing with the problem of the legitimation of claims to factual knowledge or cognitive rationality, Dialectics deals with the argumentation aspect of thesis-introduction rather than the logical aspect of thesis-derivation. Although some key notions such as the idea of burden of proof and presumption have been stated in the former work, what is offered here is a systematic (...) discussion of a disputational model of inquiry. The principal aims are "to exhibit the sociocommunal roots of the foundations of rationality, to provide an instrument for the critique of scepticism implicit in the cognitive solipsism of the Cartesian approach, and to illuminate the communal and controversy-oriented aspects of rational argumentation and inquiry—scientific inquiry in particular." Again, Rescher limits his discussion to "the probative mechanism in the factual domain." This book, if it were not for its price, should be a good supplement to a course in "informal" logic which focuses on argumentation rather than on mere evaluation of arguments. Plausible Reasoning provides the mechanism for evaluation of plausibility claims as distinct from probabilistic ones. The basic differences between these two types of claims are clearly discussed. "Plausibility is essentially a classificatory concept which ranks theses in terms of the standing and solidity of their cognitive basis. Plausibility grades theses by an external or extrinsic standard of the hierarchical nature of their supporting bases. It classifies propositions by the status of the evidential sources or validating principles that vouch for them. Probability weighs alternatives and evaluates theses by this relative contentual weight of the supporting considerations."—A.S.C. (shrink)

This article examines the implicit promises of fairness in evidence based medicine , namely to avoid discrimination through objective processes, and to distribute effective treatments fairly. The relationship between EBM and vulnerable groups is examined. Several aspects of EBM are explored: the way evidence is created , and the way evidence is applied in clinical care and health policy. This analysis suggests that EBM turns our attention away from social and cultural factors that influence health and (...) focuses on a narrow biomedical and individualistic model of health. Those with the greatest burden of ill health are left disenfranchised, as there is little research that is relevant to them, there is poor access to treatments, and attention is diverted away from activities that might have a much greater impact on their health. (shrink)

Appeals to emotion—pity, fear, popular sentiment, and _ad hominem_ attacks—are commonly used in argumentation. Instead of dismissing these appeals as fallacious wherever they occur, as many do, Walton urges that each use be judged on its merits. He distinguished three main categories of evaluation. First, is it reasonable, even if not conclusive, as an argument? Second, is it weak and therefore open to critical questioning for argument? And third, is it fallacious? The third category is a strong charge that incurs (...) a critical burden to back it up by citing evidence from the given text and context of dialogue. Walton uses fifty-six case studies to demonstrate that the problem of emotional fallacies is much subtler than has been previously believed. Ranging over commercial advertisements, political debates, union-management negotiations, and ethical disputes, the case studies reveal that these four types of appeals, while based on presumptive reasoning that are tentative and subject to default, are not always or necessarily fallacious types of argumentation. (shrink)

Douglas Walton has done extensive and valuable work on the concepts of presumption and practical reasoning. However, Walton’s attempt to model practical reasoning as presumptive is misguided. The notions of “inference” and of the burden of proof shifting back and forth between proponent and respondent are misleading and lead to counterintuitive consequences. Because the issue in practical reasoning is a proposal, not a proposition, there are, in the standard case, several perfectly good reasons on both sides (...) simultaneously, which implies that argument appraisal necessarily contains a subjective element—a fact argumentation theory needs to conceptualize. (shrink)

In this essay we contend that traditional theories of argument are consonant with and enrich the project of postmodernity. Reading postmodernity as ‘a rhetoric’ underscores how the process of discursively resolving conflicts is occasionally threatened by politically motivated efforts to misuse the methods of argument; it alerts us to the egregious acts that are and can be performed ‘in the name of,’ but not because of, rationality. Postmodernity is thus an attempt by a new generation of theorists to recast and (...) draw attention to perennial philosophical problems in the context of contemporary political difficulties. (shrink)

One of the theological disagreements in Christianity is the legitimacy of infant baptism. It was not discussed in the early period of Christianity. Nevertheless, it is one of the problems that have been debated especially since the post-reform period. Debates about infant baptism create differences in Christianity. Churches accepting infant baptism, espe¬cially the Catholic Church, acknowledge it as a tradition that has been practiced for thou¬sands of years. According to them, children were baptized by Jesus and the Church Fathers kept (...) doing this ritual. However, most of the Protestant Churches, like Anabaptists, criticize infant baptism as it does not happen based on free will. They claim that such people should get baptized again. According to them, Jesus did not baptize infants and the biblical texts, which are shown as a source of infant baptism, indicate that either Jesus blessed babies or baptized adults. Therefore, theological debates about infant baptism have continued in Christianity. The article discusses the historical process of infant baptism and the arguments presented by different groups about this discussion. The main framework of the article is the discussions between groups about biblical texts and religious identification, especially the post-reform period. Infant baptism is an important issue because it includes modern discussions about differences among churches, Bible interpretation, will, and mind. Since there is no specific study on infant baptism in our country, we can say that the article will contribute to the studies of the history of religions.Summary: The sacrament is one of the controversial topics among Christian churches. It has been discussed structure of the sacraments as well as the legitimacy of these practices throughout the history. Infant baptism is another example over legitimacy debate about the sacraments. Infant baptism is a key topic because it involves fundamental doctrines like salvation, faith, and original sin and conflicts among churches.This study addresses the historical process of infant baptism and the arguments presented by different groups regarding the debates of its legitimacy. It aims to shed light on one of the current debates of various groups in the post-reform period, especially among the Protestants. Initially, we discuss the value of baptism in Christian theology, then the histori¬cal process of infant baptism, and finally the arguments of groups that accept and do not accept infant baptism. Although there are various studies about baptism in our country, there is no specific study assessing infant baptism. Therefore, we think that this paper will augment the existing literature in the field.Baptism is the most meaningful sacrament in Christianity as it is an indicator of being a Christian and the first step of the way to salvation for Christians. It is also a unifying sacra¬ment because it is accepted by the Roman Catholic, Eastern Orthodox, and Protestant Churches. Catholics and Orthodox Churches agree on the seven sacraments (baptism, con¬firmation, Eucharist, penance, anointing of the sick, marriage, and holy orders) with a few exceptions. However, since the Protestants adopt an understanding of religion based upon the Bible, they only accept the baptism and Eucharist mentioned in the Bible as a sacrament. Although the Protestants agree on baptism, they have opposing views about infant baptism. The only source between the Protestant Churches about infant baptism is the Bible. These groups accept only Biblical texts as a legitimate source, not the Church fathers. However, the debate on whether the references in the Bible refer to the baptism of babies or the baptism of adults has reached to today. Since adults were baptized during the spread of Christianity, there was no significant debate about infant baptism in the early period. Generally, Church Fathers did not state infant bap¬tism as a systematic sacrament, but rather as a spiritual blessing. Therefore, baptism was accepted as a ritual that involves the infant, adult, and patient baptism in Christian litera¬ture. However, with the emergence of some heretic groups against infant baptism, the meaning of infant baptism and adult baptism has been used differently by Christians. As a result of the first discussions between heretic groups and the Church Fathers, some defense attempts of infant baptism have started in the Christian world. On the one hand, theologians struggled against those who are against infant baptism; on the other hand, the Church de¬cided to support infant baptism in councils. It was accepted that babies should be baptized even if they cannot speak during the sacrament and cannot answer questions about faith. It became widespread after Christianity was accepted as an official religion by Rome, and it was officially accepted by the Catholic church in the 13th century. Infant baptism discus¬sions have increased again after the Reform. While Catholic, Orthodox, Anglican, Lutheran, Methodist, Presbyterian, and Congressional churches accept infant baptism; groups such as Baptists, Pentecostalists, Anabaptists, Seventh-Day Adventists, Jehovah's Witnesses, and Last-Day Saints are against infant baptism.According to churches practicing infant baptism, babies should be baptized as soon as pos¬sible for God's divine grace and salvation. However, the churches that oppose infant baptism claim that this is a meaningless reason. According to them, baptism was only performed at Easter and Pentecost in the early period and even a candidate who wanted to be Christian was tested for a length of time. This practice reveals the connection of baptism with wisdom and faith. They claim that baptism is a meaningful and dogmatic action, not an ordinary practiceç Therefore, infant baptism, which is not based on reason, weakens faith. These churches point out that this ritual is deceptive, and it will lose children's faith over time since it is not supported by faith. They also criticize the idea that this baptism will make the person a member of the public. In this regard, they emphasize that members of the current society no longer live in villages and do not consist of groups recognizing each other. Thereby, It is clear that the membership of the current society has lost its sociological meaning in the modern society.Criticisms of these churches refusing infant baptismhave become more noteworthy in the recent period by the contributions of authors, Karl Barth (b. 1966) and Emil Brunner (d. 1966). All these criticisms focus on the fact that infant baptism is not based on the essential references of religion, but rather on the practices of church fathers. Therefore, they argue that families, who believe but not investigate, baptized babies only for the tradition. In other words, people care about society, not religious beliefs, but according to these groups, this is meaningless anxiety. These discussions reveal infant baptism is not only theological debate, but also socio-cultural.In our opinion, most of the references in the texts shown as evidence for infant baptism point to the inseparable bond between God and children, like in the Old Testament. We think that claim of these groups that faith requires a level of consciousness is a consistent criticism. In this context, it can be stated that the criticisms of the infant baptism in the post-reform period are effective and that groups who believe in this baptism could not respond to these criticisms through sacred texts and rational proofs. (shrink)

Reasoners compare problems to prior cases to draw conclusions about a problem and guide decision making. All Case-Based Reasoning (CBR) employs some methods for generalizing from cases to support indexing and relevance assessment and evidences two basic inference methods: constraining search by tracing a solution from a past case or evaluating a case by comparing it to past cases. Across domains and tasks, however, humans reason with cases in subtly different ways evidencing different mixes of and mechanisms for (...) these components.In recent CBR research in Artificial Intelligence (AI), five paradigmatic approaches have emerged: statistically-oriented, model-based, planning/design-oriented, exemplar-based, and adversarial or precedent-based. The paradigms differ in the assumptions they make about domain models, the extent to which they support symbolic case comparison, and the kinds of inferences for which they employ cases. (shrink)

Evidence-Based Medicine (EBM) and Personalized Medicine (PM) share a common goal: reducing the gap between the results of biomedical research and their clinical application. PM is, however, often presented as a “new paradigm” for medicine, just as EBM was in the 1990s. It covers a wide variety of projects but the core idea that generally unites them is the ambition of better taking account of individual specificities than did EBM with its statistical and population-centred approach. In this article, (...) I concentrate on PM in cancerology, the essence of which is to target treatments based on the molecular profile of the patient. This targeting is made possible by gaining better knowledge about the molecular mechanisms of cancers. The classification of patients as a function of their molecular profile entails the creation of patient sub-groups. This creates a problem for the traditional evaluation of therapeutic treatment promoted by EBM, in particular the use of randomized trials using sizeable cohorts. But a better understanding of the mechanisms and the greater precision of treatments could reduce the need for these trials. Does PM thus represent the revenge of a physio-pathological and mechanistic culture in clinical research against the statistical and empirical one of EBM? My objective is to show how current practices of PM leads to epistemological changes in our estimation of what count as relevant types of information and proof in medicine, in particular in the field of therapeutic evaluation. I defend the idea that PM, far from obviating the need for statistical approaches and the search for correlations, ultimately poses new challenges for EBM. PM drives EBM to strengthen the articulation and the integration of statistical and mechanistic data with a view to providing a better service for each patient. (shrink)

Religion refers to two excuses for the deliberately abandoning of prayers: sleep and forgetting. However, according to some scholars, some other reasons may also allow the deliberately abandoning of prayers. The most important support of these scholars is that the Messenger of Allah performed some prayers outside their own time during the al-Khandaq. However, there is a serious obstacle in front of this approach: The fear prayer. The aim of the article is to reveal the relationship between this application of (...) the Prophet and the fear prayer and investigates whether it is a general rule to leave a prayer due to the fear of war or the enemy. The importance of this issue stems from the fact that the practice in this battle is comparable. If this is accepted as a general rule, the framework of the issues that may cause a prayer to be left can be expanded. Excuses that can be considered force majeure and legitimate in terms of daily life can be added to the unconscious states of harmony and forgetting. Therefore, the article mentions a much smaller dimension of this broad framework, rather than the general aspects of the issue, such as the deliberately abandoning of prayers, whether it is possible or not, and its proofs. In this context, it can be said that it is of great importance to determine the historical sequence between this battle and the prayer of fear. The article comes to a conclusion through the determination of this relationship, which has clues in various hadith, history, and commentary books. (shrink)

Legal reasoning on the requirements and application of law has been studied for centuries, but in this subject area the legal profession maintains predominantly the same stance it did in the time of the Ancient Greeks. There is a gap between the standards of proof, one which has been always demonstrated by percentages and in terms of the evaluation of these standards by percentages by mathematical or statistical methods. One method to fill the gap is Bayes theorem that describes (...) an event’s probability based on conditions that might be related to an event. Bayes theorem can help to establish or confirm a relation between facts and rules if there is sufficient other evidence that connect a party in a procedure with a considered legal action. (shrink)

Background The increase in empirical methods of research in bioethics over the last two decades is typically perceived as a welcomed broadening of the discipline, with increased integration of social and life scientists into the field and ethics consultants into the clinical setting, however it also represents a loss of confidence in the typical normative and analytic methods of bioethics. Discussion The recent incipiency of "Evidence-Based Ethics" attests to this phenomenon and should be rejected as a solution to (...) the current ambivalence toward the normative resolution of moral problems in a pluralistic society. While "evidence-based" is typically read in medicine and other life and social sciences as the empirically-adequate standard of reasonable practice and a means for increasing certainty, I propose that the evidence-based movement in fact gains consensus by displacing normative discourse with aggregate or statistically-derived empirical evidence as the "bottom line". Therefore, along with wavering on the fact/value distinction, evidence-based ethics threatens bioethics' normative mandate. The appeal of the evidence-based approach is that it offers a means of negotiating the demands of moral pluralism. Rather than appealing to explicit values that are likely not shared by all, "the evidence" is proposed to adjudicate between competing claims. Quantified measures are notably more "neutral" and democratic than liberal markers like "species normal functioning". Yet the positivist notion that claims stand or fall in light of the evidence is untenable; furthermore, the legacy of positivism entails the quieting of empirically non-verifiable considerations like moral claims and judgments. As a result, evidence-based ethics proposes to operate with the implicit normativity that accompanies the production and presentation of all biomedical and scientific facts unchecked. Summary The "empirical turn" in bioethics signals a need for reconsideration of the methods used for moral evaluation and resolution, however the options should not include obscuring normative content by seemingly neutral technical measure. (shrink)

The purpose of this paper is to improve on the logical and measure-theoretic foundations for the notion of probability in the law of evidence, which were given in my contributions Åqvist [ (1990) Logical analysis of epistemic modality: an explication of the Bolding–Ekelöf degrees of evidential strength. In: Klami HT (ed) Rätt och Sanning (Law and Truth. A symposium on legal proof-theory in Uppsala May 1989). Iustus Förlag, Uppsala, pp 43–54; (1992) Towards a logical theory of legal evidence: (...) semantic analysis of the Bolding–Ekelöf degrees of evidential strength. In: Martino AA (ed) Expert systems in law. Elsevier Science Publishers BV, Amsterdam, North-Holland, pp 67–86]. The present approach agrees with the one adopted in those contributions in taking its main task to be that of providing a semantic analysis, or explication, of the so called Bolding–Ekelöf degrees of evidential strength (“proof-strength”) as applied to the establishment of matters of fact in law-courts. However, it differs from the one advocated in our earlier work on the subject in explicitly appealing to what is known as “Pro-et-Contra Argumentation”, after the famous Norwegian philosopher Arne Naess. It tries to bring out the logical form of that interesting kind of reasoning, at least in the context of the law of evidence. The formal techniques used here will be seen to be largely inspired by the important work done by Patrick Suppes, notably Suppes [(1957) Introduction to logic. van Nostrand, Princeton and (1972) Finite equal-interval measurement structures. Theoria 38:45–63]. (shrink)

This paper joins the voices warning against hasty transference of legal concepts of presumption to other kinds of argumentation, especially to deliberation about future acts and policies. Comparison of the pragmatics which respectively constitute the illocutionary acts of accusing and proposing reveals important differences in the ways presumptions prompt accusers and proposers to undertake probative responsibilities and, also, points to corresponding differences in their probative duties. This comparison has theoretically important implication regarding the norms governing persuasive argumentation. The paper is (...) based on a broadly Gricean account of speech acts. (shrink)

In this paper, a case study is conducted to test the capability of the Carneades Argumentation System to model the argumentation in a case where forensic evidence was collected in an investigation triggered by a conflict among art experts on the attribution of a painting to Leonardo da Vinci. A claim that a portrait of a young woman in a Renaissance dress could be attributed to da Vinci was initially dismissed by art experts. Forensic investigations were carried out, and (...) evidence was collected by art history experts and scientific experts. The expert opinions were initially in conflict, but new evidence shifted the burden of proof onto the side of the skeptics. This paper presents an analysis of the structure of the interlocking argumentation in the case using argument mapping tools to track the accumulation of evidence pro and con. (shrink)

The clinical decision is supposed to be based on evidence. In fact, what counts as evidence is far from being established. Some definition of "proof" is needed to distinguish between scientific medicine and charlatanism. My thesis is that unfortunately a clear-cut boundary between evidence and lack of evidence cannot be found, for several reasons that I summarise in the paper. Evidence in medicine very often has fuzzy boundaries, and dichotomising fuzziness and uncertainty can have (...) serious consequences. Physicians and patients should accept the irreducible fuzziness of many of the concepts they use when dealing with health and disease. (shrink)

Slife and Reber ask of psychologists that they recognize their prejudice against theism and the incompatibility between theistic and naturalistic worldviews. Yet, the subtext of their article is that theism and naturalism are equally valid and that psychology’s secularism is a mistake. Given that theism is not beyond reason, the only sufficient ground for charging psychologists with prejudice is if theism has survived serious attempts at conceptual and empirical test, and psychology ignores or disguises this fact. So, the grounds for (...) believing in the reality of a supernatural existent are highly relevant to the authors’ allegation. However, their concept of God affords no such grounds. They disavow the logic involved in the ordinary meaning of the term “incompatible” and they ignore a crucial distinction between conditions of existence and qualities of things or processes. The consequence is that either God is this-worldly, and there is no ontological basis to Slife and Reber’s incompatibility thesis, or God’s mode of existence is quite different from the mode of existence of ordinary things and all the problems of dualism follow. Either way, their charge of prejudice is without foundation. The burden of proof rests with the defender of theism and, for now, psychology’s secularism can be considered a mark of the discipline’s rationality. 2012 APA, all rights reserved). (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Nature of Proof in PsychiatryPaul Lieberman (bio)Keywordspsychotherapy process, knowledge and psychiatry, externalism, WittgensteinThis vivid clinical report illustrates recognizably, and provocatively, a number of routine, but often unexamined, clinical questions. In its few paragraphs, it depicts challenges that each practitioner confronts, and, in the flux of clinical work, addresses, however implicitly and imperfectly, every day: From what data, and by what processes, does a clinical formulation, or way of (...) understanding, come into being? How do we appraise its accuracy and adequacy? Of what value is even a well-substantiated understanding, in the mind of the therapist, to the patient? What is the power of empathy as a treatment tool? How do we assess someone's status as a “good candidate for therapy?” When, typically, only the outlines of a problem are visible, and its origins and implications are largely hidden, by what right do we recommend psychotherapy, and with what conception, at what level of detail, of what its outcome will be? These are among the questions that Dr. Bailey's story challenges us to address.They are clinical questions, of course, because they deal with empirical matters of fact—psychological processes, outcomes studies, and evidence. But they are also philosophical because, as Freud insisted and Dr. Bailey shows, information obtained in the clinical situation often has power and authority that lead us to believe we understand what is going on, understand the other person, even in the absence of scientifically tested hypotheses, or the clear application of research-based evidence. Interactions between people—including clinical interactions—have a life and ability to engage us. Their meanings can seem so transparent and convincing that no doubt or questioning may seem cogent. At their most powerful, such experiences can reawaken us to important realms of experience and feeling which we might, otherwise, forget, ignore, suppress, deny, or in other ways keep out of awareness; they have the potential to arouse us and reconnect us with truths that, once revived, can seem both valid and important—perhaps the kind of experience that we may derive from works of art or literature (in fact, Dr. Bailey's account could be seen as a clinical parable—meant to be neither true nor false, but instructive). But even less dramatic examples are commonplace: we do routinely claim to know and be able to interpret and understand the actions of other people from our everyday interactions with and observations of them.What is less clear is how to account for these convictions and how to appraise their value, because they do not derive from established scientific procedures. Clinical intuition has a role throughout medicine, but we usually expect it to be subjected later to more rigorous tests to establish the correct diagnosis. Yet, as Dr. Bailey's case illustrates, clinical intuition in the psychiatric encounter seems somehow different. When Colin [End Page 225] leads Dr. Bailey to the conclusion that a “painful lack of wounds” has made him depressed, we find this credible. It seems similarly credible that Dr. Bailey might be anxious about his own capacity to defend his young family, because he says he is, that he perceives Colin as testing his manhood or sincerity, because that seems to fit Colin's temperament, that being accurately understood is helpful, because most of us have had that experience and valued it, and that, most generally, an absence of challenge or of activity could be depressing. But suppose a patient believed that a painful lack of wounds produced diabetes instead of depression, or suppose he had developed epilepsy and attributed that to an absence of combat experience. We might see these as ‘pre-scientific’ or ‘hypothesis-generating’ (or worse). By contrast, it seems timid to consider psychiatric formulations to be always and only provisional or hypothetical.In what ways and to what extent should we expect psychiatry to be different, and why? Several considerations suggest that psychiatry's reasons are not, always and everywhere, the same as those of general medicine, nor are its objectives.In general medicine, we distinguish between signs and symptoms, on the one hand, and “underlying” disease processes, on the other. But in psychiatry, this distinction can be... (shrink)

Five errors that fit under the category of jumping to a conclusion are identified: (1) arguing from premises that are insufficient as evidence to prove a conclusion (2) fallacious argument from ignorance, (3) arguing to a wrong conclusion, (4) using defeasible reasoning without being open to exceptions, and (5) overlooking/suppressing evidence. It is shown that jumping to a conclusion is best seen not as a fallacy itself, but as a more general category of faulty argumentation pattern underlying (...) these errors and some related fallacies. (shrink)