Burden Of Argument Research Articles

For values in science: Assessing recent arguments for the ideal of value-free science

There is a near consensus among philosophers of science whose research focuses on science and values that the ideal of value-free science is untenable, and that science not only is, but normatively must be, value-laden in some respect. The consensus is far from complete; with some regularity, defenses of the value-free ideal (VFI) as well as critiques of major arguments against the VFI surface in the literature. I review and respond to many of the recent defenses of the VFI and show that they generally fail to meet the mark. In the process, I articulate what the current burden of argument for a defense of the VFI ought to be, given the state of the literature.

The significance of skepticism

AbstractThere is a recurrent sort of skeptical character in philosophical debates who believes that some social practice must be abolished because it involves a false presupposition about how things ‘really’ are. I examine this style of skeptical argument, using the moral responsibility skeptic as my main illustration. I excavate two unstated and un‐argued for premises that it requires (which I call Undistorted Truth and Privileged Conception). This exposes the full extent of the argumentative burdens that such a skeptic must discharge. I aim to make progress by offering skeptics and anti‐skeptics alike a way forward: the skeptic is provided a clear agenda, while the anti‐skeptic is provided a diagnostic tool to assess this style of skeptical arguments at key junctures.

The versatility of the Kleinian model. Melanie Klein’s theory and formulations of morality and forgiveness

The purpose of this article is to outline Melanie Klein’s basic concepts through a detailed investigation of her viewpoints on the nature and origins of “objects.” Above all, it will be the burden of argument to document and chronicle how Klein gives powerful insights into notions of morality, forgiveness and love, which are particularly illuminating for ethical or philosophical studies. Famous for having given the death instinct a prominent, centre-stage position, Klein’s real achievement, however, in Emilia Steuerman’s opinion, “is her understanding of love as reparation (caritas),” (The Bounds of Reason 27) intrinsically linked to the reality of the death instinct. The elaboration on the two basic positions of Melanie Klein’s theory will show them to be related to two distinct formulations of morality. The concept of reparation, which represents one of the most interesting nodal points of her theoretical writings, will be construed to overlap, psychoanalytically, the concept of forgiveness put forth by philosophers such as Hannah Arendt or Jacques Derrida. Klein’s astute inclusion of an intolerance towards appreciation and admiration in her theorization of envy will be shown to have rendered the counterbalancing concept of gratitude equally impressive. Closely related to reparation, gratitude possesses the same redemptive quality, serving to mitigate the burden of aggression. It is a measure of the versatility of the Kleinian model that it enables her readers to extrapolate from her theorization of key psychoanalytical concepts to the dynamics of notions pertaining to fields such as ethics or philosophy

Janus‐Faced Coherentism and the Forgotten Role of Formal Principles

AbstractCoherentists fail to distinguish between the individual revision of a conviction and the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, according to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that controls a case and is protected by the formal principles of competence, certainty, and equality. A revision of a rule is the invalidation or modification such a judicially ascribed norm, provided that the judge meets the burden of argumentation of formal principles. Thus, judges can revise their convictions without changing the law.

Should Moral Machines be Banned? A Commentary on van Wynsberghe and Robbins “Critiquing the Reasons for Making Artificial Moral Agents”

In a stimulating recent article for this journal (van Wynsberghe and Robbins in Sci Eng Ethics 25(3):719-735. https://doi.org/10.1007/s11948-018-0030-8 , 2019), Aimee van Wynsberghe and Scott Robbins (hereafter, vW&R) mount a serious critique of a number of reasons advanced in favor of building artificial moral agents (AMAs). In light of their critique, vW&R make two recommendations: they advocate a moratorium on the commercialization of AMAs and suggest that the argumentative burden is now shifted onto the proponents of AMAs to come up with new reasons for building them. This commentary aims to explore the implications vW&R draw from their critique. In particular, it will raise objections to the moratorium argument and propose a presumptive case for commercializing AMAs.

A posição preferencial da liberdade de expressão e o Conselho Nacional do Ministério Público

O presente texto estuda o posicionamento do Conselho Nacional do Ministério Público relacionado à liberdade de expressão dos membros do Parquet nas mídias sociais. Adotando a posição preferencial, aponta os fundamentos dessa liberdade e as consequências dessa posição. Três assuntos são analisados: a conduta ilibada, a extensão à vida privada e o uso de presunções. Verificada a incompatibilidade entre a postura do Conselho e a posição preferencial, chega-se à necessidade do mesmo mais bem se desincumbir do seu ônus argumentativo. Ao final, são apresentadas proposições que se adéquam à posição preferencial. O estudo constitui-se de uma pesquisa do tipo qualitativa, com objetivos descritivo-explicativos sobre o tema, utilizando para tal o procedimento de pesquisa bibliográfico.

Are the folk historicists about moral responsibility?

ABSTRACTManipulation cases have figured prominently in philosophical debates about whether moral responsibility is in some sense deeply historical. Meanwhile, some philosophers have thought that folk thinking about manipulated agents may shed some light on the various argumentative burdens facing participants in that debate. This paper argues that folk thinking is, to some extent, historical. Across three experiments, a substantial number of participants did not attribute moral responsibility to agents with manipulation in their histories. The results of these experiments challenge previous research indicating that folk thinking is not historicist. Furthermore, perceptions of reduced free will, but not of a change in personal identity of the agent, account for the attenuation of moral responsibility when the agent was manipulated. To the extent that folk thinking is relevant to philosophical debates about the nature of moral responsibility, the results helpfully illuminate the dialectical burdens facing competing conceptions of responsible agency.

Institutions of International Law: How International Law Secures Orderliness in International Affairs

This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex vii tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.

Institutions of International Law. How International Law Secures Orderliness of International Affairs

This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex VII tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.

Testing Original Public Meaning

Within legal scholarship and practice, among the most pervasive tasks is the interpretation of texts. And within legal interpretation, perhaps the most pervasive inquiry is the search for “ordinary meaning.” Jurists often treat ordinary meaning analysis as an empirical inquiry, aiming to discover a fact about how people understand language. When evaluating ordinary meaning, interpreters rely on dictionary definitions or patterns of common usage, increasingly via “legal corpus linguistics” approaches. However, the most central question about these popular methods remains open: Do they reliably reflect ordinary meaning? This Article presents a series of experiments that assess whether (a) dictionary definitions and (b) common usage data reflect (c) how people actually understand language today. The Article elaborates the implications of two main experimental results. First, neither the dictionary nor legal corpus linguistics methods reliably track ordinary people’s judgments about meaning. This shifts the argumentative burden to jurists who rely on these tools to identify “ordinary meaning” or “original public meaning”: these views must articulate and demonstrate a reliable method of analysis. Moreover, this divergence illuminates several interpretive fallacies. For example, advocates of legal corpus linguistics often contend that the nonappearance of a specific use in a corpus indicates that the use is not part of the relevant term’s ordinary meaning. The experiments reveal this claim to be a “Nonappearance Fallacy.” Ordinary meaning exceeds datasets of common usage — even very large ones. Second, dictionary and legal corpus linguistics verdicts diverge dramatically from each other. Part of that divergence is explained by the finding that broad dictionary definitions tend to direct interpreters to extensive interpretations, while data of common usage tends to point interpreters to more prototypical cases. This suggests two different criteria that are often relevant in interpretation: a more extensive criterion and a more narrow, prototypical criterion. Although dictionaries and corpus linguistics might, in some cases, help us identify these criteria, a hard legal-philosophical question remains: Which of these two criteria should guide the interpretation of terms and phrases in legal texts? Insofar as there is no compelling case to prefer one, the results suggest that dictionary definitions, legal corpus linguistics, or even other more scientific measures of meaning may not be equipped in principle to deliver simple and unequivocal answers to inquiries about the so-called “ordinary meaning” of legal texts.

Exploring the Background: puzzles, afterthoughts, and replies

In this paper I review the comments, and reply to the objections, put forward in the commentaries to my essay “Pre-conventions. A fragment of the Background”, published in issues n. 30 and 33 of Revus – Journal for Constitutional Theory and Philosophy of Law. My remarks fall under the following headings: 1. The social dimension of pre-conventions; 2. Pre-conventions and ordinary habits and dispositions; 3. Whether my examples are mistaken; 4. Reasons and causes; 5. Normative facts; 6. Whether abstract entities can be causes; 7. Are pre-conventions conditions of Lewis-conventions? 8. What can pre-conventions do for legal theory? 9. Whether I discharged my argumentative burdens.

L’odio proibito: la repressione giuridica dello hate speech

SOMMARIO: 1. Discorsi odiosi - 2. La repressione giuridica delle idee odiose: vecchie difese, nuovi difesi - 3. Le ragioni del contrasto giuridico ai discorsi d’odio - 4. Due direttrici nella giustificazione della repressione giuridica del discorso d’odio. Forbidden hate: the legal repression of hate speech ABSTRACT: The aim of this article is two-folded. First, it offers a general overview of the legal repression of various categories of expressive behaviours ascribed to the notion of hate speech. Especially in Europe, such repression often passes through criminalization, long since used by law to suppress thoughts or points of view for some reason considered harmful. The social groups nowadays protected by such repressive measures, however, are different from the past: weak and/or minoritarian groups rather than strong and/or majoritarian ones. The second aim of this work is to identify the reasons for the legal repression of expressions, beliefs or doctrines certainly in many cases morally deplorable, yet protected by other high-ranking legal reasons: the principles of freedom of thought and speech. It will be noted that especially for untargeted hate speech not connected to a clear and present danger of unlawful actions, there is no general agreement about those reasons. Furthermore, they tend to be structured in justifications showing some typical flaws of, respectively, deontological and teleological reasoning: the former tend to be superficial as apodictic, generic and vacuous; the latter tend to evade the argumentative burdens of factual order from which their validity depends.

Transformative Unfair Discrimination Jurisprudence: The Need for a Baseline Intensity of Review

ABSTRACTThe Constitutional Court holds that the prohibition of unfair discrimination is aimed at preventing and addressing patterns of group disadvantage. However, there is a striking inconsistency between this transformative aim and the court's decisions in a set of five controversial cases. In Hugo, Harksen, Jordan, Volks, and Union of Refugee Women, slender majorities found discrimination to be fair despite clear indications that it entrenched patterns of group disadvantage. Existing critiques of these judgments have focused on the court's failure to conduct a fully contextualised assessment of the impact of the discrimination. In doing so, commentators have generally overlooked an equally significant flaw in these decisions. In this article, I demonstrate that the majority judgments all adopted an indefensibly weak intensity of review in assessing the state's justifications for the discrimination, leading the court to uphold discrimination on flimsy grounds. The error was that the majority judgments did not satisfy the ‘baseline’ intensity of review, the non-negotiable threshold of review which, I argue, ought to be applied in all unfair discrimination cases. I demonstrate that this baseline has four central requirements which were flouted in these decisions: (a) the discriminator must present a justification for the discrimination; (b) the court must subject this justification to a proportionality analysis; (c) it must apply a full proportionality analysis, exploring the legitimacy, suitability, necessity, and proportionality stricto senso of the discrimination; and (d) the court must place the evidential and argumentative burden squarely on the discriminator in assessing its justifications. These baseline requirements would have left the court with little option but to find the discrimination to be unfair in these five cases. In this light, I argue that consistent application of this baseline can help to make the court better at addressing patterns of group disadvantage in future decisions.

On Attempts to Gerrymander “Positive” and “Normative” Political Theory:

AbstractWe aim to cast doubt on the now conventional distinction between “positive” and “normative political theory by shifting the burden of argument. We do not claim it is impossible to categorically differentiate political theory into “positive” and “normative” varieties. We do suggest the most familiar, extant strategies for approaching that task are implausible. We hope in the process to show that there are perfectly good reasons to set the task aside as counterproductive.

Über „Funktion“

Abstract The determination of specific limitations of biological descriptions, explanations and structuralisations presupposes a proper understanding of the methodical status of “function”. This is particularly relevant if biological knowledge is supposed to play a crucial argumentative role even beyond the limits of the empirical science. In such cases it is not easily determinable at which point purely empirical knowledge enters into the argument and where additional methodical and methodological aspects must be considered. This paper provides a methodological reconstruction of the functional form of biological knowledge itself, which is unfolded in three consecutive steps. The reconstruction starts with the determination of model-theoretical prerequisites of functional structuralisation of biotic entities as organisms. The second step explicates the logical grammar of functional and dysfunctional characters. Based upon this reconstruction, the systematic relation between the form of functional and evolutionary arguments is reconsidered. Finally some of the argumentative burdens are developed, which result from the use of biological language- and theory-particles being applied beyond the scope of validity that is and can be claimed for their proper use within their original life-scientific language game.

Why deflationary nominalists shouldn’t be agnostics

A feature of agnostic views—views that officially express ignorance about the existence of something (God, mathematical abstracta, theoretical entities)—is that they are widely perceived to be epistemically more cautious than views that are committed to (or against) the entities in question. This is often seen as giving agnostics a debating advantage: all things being equal, fence-sitters have smaller argumentative burdens. Otavio Bueno argues in this way for what he calls “agnostic nominalism,” the view that we don’t know whether ontologically-independent Platonic objects exist. I show that agnostic nominalism, so called, can be sustained only in ways that don’t give agnostic nominalists debating advantages: the position must either be deduced from antecedently-held broader sceptical assumptions or it requires manufacturing potential referents for one’s terms that artificially generate grounds for scepticism. Neither maneuver leads to an agnostic nominalism with a debating advantage over its nominalist opponents.

Realizacja zasady prawdy w postępowaniu cywilnym a ciężar dowodu i ciężar argumentacji

The purpose of the paper is to analyze, how rules of the burden of proof and rules of the burden of argumentation justify a thesis, which is found as a true statement by court. Two concepts of the truth discussed in the Polish civil procedure (the objective/material truth and the judicial truth) are compared in connection with the rules of the burden of proof and the burden of argumentation. The rules of burden of proof and the rules of the burden of argumentation are constitutive rules. They state under what conditions a thesis counts as justified. The justification of a decision of applying law based on the rules of the burden of proof or rules of the burden of argumentation is institutional, not substantial.

Virtue or consequences: The folk against pure evaluational internalism

Evaluational internalism holds that only features internal to agency (e.g., motivation) are relevant to attributions of virtue [Slote, M. (2001). Morals from motives. Oxford: Oxford University Press]. Evaluational externalism holds that only features external to agency (e.g., consequences) are relevant to attributions of virtue [Driver, J. (2001). Uneasy virtue. Cambridge: Cambridge University Press]. Many evaluational externalists and internalists claim that their view best accords with philosophically naïve (i.e., folk) intuitions, and that accordance provides argumentative support for their view. Evaluational internalism and externalism are incompatible views and therefore it is impossible that both views are supported by most folk intuitions. In four experiments, we present evidence that neither pure evaluational internalism nor pure evaluational externalism accurately capture some relevant folk intuitions about virtue. However, our experiments suggest external factors are vastly more important than internal factors for folk attributions of virtue. While these data do not entail that evaluational internalism and externalism about virtue are false, they situate important argumentative burdens, constrain philosophical theory about virtue, and illustrate a valuable method that could foster more efficient progress in ethics.

Desiderata for a Viable Secular Humanism

AbstractPhilip Kitcher has recently worried that the New Atheists, by mounting an attack against religion tout court, risk alienating a large swath of ‘religious’ people whose way of life is, to Kitcher's mind, innocuous. Encouraging a more moderate response, Kitcher thinks certain non‐threatening modes of religious existence should be protected. In this article, I argue that while Kitcher's attempt to provide balance to the secularism debate is a great service, he ultimately fails to distinguish innocuous modes of religious belief from more threatening modes, a failing that allows the debate to return to its previous extremes. In drawing attention to the shortcomings of Kitcher's approach, I make the humanist's argumentative burden explicit: the defender of a ‘moderate’ secular humanism must show that people who arrange their lives around belief in a transcendent being are more likely to do ethical harm than those that don't.

Understanding the Authority of International Courts and Tribunals: On Delegation and Discursive Construction

This Article develops an understanding of authority as the ability to establish content-laden reference points that participants in legal discourse can hardly escape. Situating authority between coercion by force and persuasion through argument, it carves out recognition and constraint as constitutive elements of authority. Delegation - a conditional grant of authority from principals to agents - is typically taken to account for the authority of international courts and tribunals (ICTs). But the Article argues that delegation is at best only the starting point of ICTs’ authority. The dynamics of the legal discourse stabilize authority and account for its further growth. The conception of authority that emerges from the discussion herein is less one of a command that demands blind obedience than a reference point that redistributes argumentative burdens. Communication is authority’s medium. Taking a step back from immediate normative questions, the Article shows what it takes for ICTs to have authority. It presents the communicative dynamics that build up ICTs’ authority and showcases the discursive resources ICTs themselves use to induce deference. The Article suggests in conclusion that a better understanding of what it takes for ICTs to have authority will also advance questions about such authority’s normative legitimacy.