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An Epistemological Theory of Argumentation for Adversarial Legal Proceedings

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Abstract

The rhetorical view (R) suggests that the goal of factual ar-gumentation in legal proceedings is to persuade the fact-finder about the facts under litigation. However, R does not capture our social expectations: we want fact-finders to know the facts justifying their decisions, and persuasion does not necessarily lead to knowledge. I want to present an epistemic theory of argumenta-tion honoring our expectations. Under my account, factual argumenta-tion aims to transmit knowledge to the fact-finder. Résumé: La vue rhétorique (R) sug-gère que l'objectif de l'argumentation factuelle dans une procédure judi-ciaire est de convaincre l'enquêteur sur les faits en litige. Cependant R ne saisit pas nos attentes sociales: nous voulons que les enquêteurs sachent les faits qui justifient leurs décisions, et la persuasion ne conduit pas nécessairement à la connais-sance. Je veux présenter une théorie épistémique de l'argumentation qui répond à nos attentes. Selon mon compte rendu, l'argumentation fac-tuelle vise à transmettre des connais-sances à l'enquêteur.
© Danny Marrero. Informal Logic, Vol. 36, No. 3 (2016), pp. 288-308.
An Epistemological Theory
of Argumentation for Adversarial
Legal Proceedings
DANNY MARRERO
Office of the Attorney General
Department of Advanced Studies
Carrera 13 # 73-50
Bogotá, Colombia
danny.marrero@fiscalia.gov.co
Abstract: The rhetorical view (R)
suggests that the goal of factual ar-
gumentation in legal proceedings is
to persuade the fact-finder about the
facts under litigation. However, R
does not capture our social expecta-
tions: we want fact-finders to know
the facts justifying their decisions,
and persuasion does not necessarily
lead to knowledge. I want to present
an epistemic theory of argumenta-
tion honoring our expectations. Un-
der my account, factual argumenta-
tion aims to transmit knowledge to
the fact-finder.
Résumé: La vue rhétorique (R) sug-
gère que l'objectif de l'argumentation
factuelle dans une procédure judi-
ciaire est de convaincre l'enquêteur
sur les faits en litige. Cependant R
ne saisit pas nos attentes sociales:
nous voulons que les enquêteurs
sachent les faits qui justifient leurs
décisions, et la persuasion ne con-
duit pas nécessairement à la connais-
sance. Je veux présenter une théorie
épistémique de l'argumentation qui
répond à nos attentes. Selon mon
compte rendu, l'argumentation fac-
tuelle vise à transmettre des connais-
sances à l'enquêteur.
Keywords: adversarial criminal proceedings, epistemological approach to
argumentation, extreme adversarialism, factual legal argumentation,
knowledge attributions, rhetorical approach to argumentation, strict invariant-
ism
1. Introduction
Epistemological theories of argumentation (i.e., theories using
epistemological concepts and methodologies to understand
problems of argumentation) have been prolific accounting for
the scope of theories of argumentation, criteria for good argu-
ments, specific argumentative forms and fallacies (Lumer 2005).
I want to take this approach to another level and show that it al-
so displays some promise of understanding factual argumenta-
tion in adversarial legal proceedings. The rhetorical view (R)
suggests that the goal of factual argumentation is to persuade the
fact-finder about the versions of the facts under litigation. How-
Argumentation for Adversarial Legal Proceedings
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289
ever, R does not capture our social expectations for adversarial
legal systems because we want fact-finders to know the facts
justifying their decisions, and persuasion does not necessarily
lead to knowledge. In this paper, I want to propose the founda-
tions of an epistemological theory of legal argumentation that
would honor our social expectations.
Achieving my goal, I am going to adopt Alvin Goldman’s
method for evaluating inferences in the process of adjudication
(2003, p. 215). Such a method has the following steps (S):
S1: Select an inference procedure as a target of analysis.
S2: Posit an aim, or set of aims, of the legal adjudication
system.
S3: Determine how well the inference procedure, if used
by factfinders, would promote the aim.
S4: If the inference procedure would be ineffective or de-
ficient in promoting the aim, identify some remedies
that would make the inference procedure perform bet-
ter.
My inference procedure is R. Additionally, I submit that the aim
of the legal adjudication system is to secure “substantively just
treatment of individuals” (Goldman 2005, p. 164). This goal is
only achieved if valid laws are correctly applied and the
knowledge of the facts under litigation is achieved. Nonetheless,
R does not secure substantively just treatment of individuals be-
cause for R the goal of legal argumentation is persuasion, and
persuasion does not lead to knowledge. This is my main reason
to replace R in this legal context by an epistemic view. Shortly, I
interpret R is the result of two accounts. On one hand, it is the
result of Strict Invariantism, which is the view claiming that
there is one standard for knowledge attributions, and that that
standard is high. Strict Invaraintism denies knowledge in legal
contexts because legal inquiries do not reach the cognitive bar
set for knowledge attributions. On the other hand, Extreme Ad-
versarialism, adopting the perspective of the litigants, claims
that the collection and development of evidence is meant to sup-
port the parties under litigation. If legal inquiry falls short of
knowledge, and legal marshalling of evidence is partial and in-
complete, then R follows. Departing from R, I claim that if it is
possible to attribute knowledge in legal contexts, and each of the
participants in legal procedures has a cognitive role to play, then
the goal of factual argumentation is to transmit knowledge to the
fact-finder.
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2. The rhetorical view
As I take it, R is the account holding that the goal of factual ar-
gumentation in legal proceedings is to persuade the fact-finder
about the versions of the facts under litigation. Classical propo-
nents of this principle in legal contexts are Chaim Perelman
(1976), Stephen Toumin (1958) and Theodor Viehweg (1953).
In this paper, I will reconstruct some of the ideas of a contempo-
rary exponent of this approach, the American speech communi-
cation theorist Janice E. Schuetz, who has been prolific applying
R’s tenets to analyze famous legal cases such as Zacco and
Vancetti’s and O. J. Simpson’s (e.g., Schuetz 1994; 2007).
To start with, she defines factual legal argumentation as “a
type of reasoning [drawing] inferences from evidence in ways
appropriate to legal process” (2007, p. 12). Two elements call
for clarification here, the “type of reasoning” that factual legal
argumentation is, and the ways in which it is “appropriate to le-
gal process.” Fleshing out the “type of reasoning” that factual
legal argumentation is, I will respond to two questions: Which
are the constitutive components of factual legal argumentation?
And what is the inference relationship keeping these compo-
nents together? Being a type of reasoning, factual legal argu-
mentation implies “an utterance that involves a claim and sup-
port for that claim.” The supported claim is related to a specific
indictment, and the supporting claim, or claims, is the evidence
collected in a specific case. Using Schuetz’s example, “an attor-
ney can claim that a defendant is guilty of driving while intoxi-
cated based on blood alcohol evidence, witnesses to erratic driv-
ing, and visible manifestations of inebriated behavior, such as
slurred speech and inability to walk a straight line” (2007, p.
12).
Identifying the inferential link keeping the indictment and
the evidence together, Schuetz claims that factual argumentation
is a type of informal reasoning different from deduction and in-
duction. Nevertheless, she does not make any reference to a de-
feasible reasoning, as some theories of legal argumentation do
(…). Instead, she claims that the components of legal argumen-
tation are linked together in a coherent narrative. To clarify, fac-
tual legal argumentation is a type of reasoning seeking “to per-
suade without using explicit logical forms such as syllogisms
(p. 12). Therefore, indictment and evidence are not linked to-
gether by a deductive inference. Factual legal argumentation is
not inductive either. Schuetz justifies this point borrowing Pe-
relman’s distinction between practical and theoretical reasoning.
While the former “involves value judgements about the quality
of both acts and persons, [the latter] concentrates on attempts to
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establish a probable truth” (Schuetz 2007, p. 16). Factual rea-
soning is not a type of theoretical reasoning because it has “the
goal of persuading judges and/or jurors” (p. 13), and it does not
“[attempt] to establish a probable truth,” as it should be done by
inductive reasoning. In Schuetz’ words,
In theory, the goal of legal argumentation is to discover
the probable truth of an action. Perelman’s work empha-
sized how practical and theoretical reasoning converge in
legal practice. The subsequent case studies emphasize the
practical over the theoretical and identify how attorneys
and judges transform theoretical argumentation into prac-
tical reasoning using narratives, dramas and games.
(Schuetz 2007, p. 16)
Unfolding this paragraph, I interpret that Schuetz identifies the
received view with the tenet that “the goal of legal argumenta-
tion is to discover the probable truth of an action.” But she disa-
grees with this principle. This is indicated by the expression “In
theory” at the beginning of the quote, and by her notion of attor-
neys’ and judges’ argumentative practices. For her, “attorneys
and judges transform theoretical argumentation into practical
reasoning.Recalling her definitions of these types of reasoning,
attorneys and judges do not “[concentrate] on attempts to estab-
lish a probable truth,” but on “value judgements about the quali-
ty of both acts and persons.”
The means to transform theoretical into practical reasoning
is through “narratives, dramas and games”. Therefore, stories
told in criminal trials connect the indictment and the evidence
through a story theme in a consistent and complete way. In
Schuetz’ words, “attorneys construct their stories from the nar-
rative fragments provided by the witnesses and emphasize the
segments of the testimony their case theory and story theme” (p.
20). The goal of this stories is to persuade the trier of facts:
“[a]ttorneys and witnesses use narratives to convince jurors
and/or judges of the probability and fidelity of their stories in
relation to the disputed civil and criminal trials” (p. 18). Notice
that the expression, “probable,” in this fragment, does not refer
to objective probability, but to subjective probability. This is
confirmed by the fact that, for Schuetz, factual narratives in le-
gal contexts do not have to be true, but they should be persua-
sive. “Stories presented by one of the sides of the case may be
untrue, but they persuade jurors and judges because they seem
more probable and resonate with juror’s experiences more than
stories presented by the other side of a case” (p. 18). This differ-
entiates her account from narrative-based theories of legal ar-
gumentation demanding the stories to be anchored in the legal
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evidence (e.g., Wagenaar, van Koppen, and Crombag 1993),
that is, to be true.
Moving on to the ways in which factual argumentation is
“appropriate to legal process,” it is important to point out that
Schuetz endorses a theory of the law as a means of conflict reso-
lution: “the law exists to solve human problems and to regulate
human conduct” (p. 3). Such a resolution is achieved through a
verdict (p. 22). To be sure, in modern systems of adjudication,
the triers of facts “are expected to review the facts and discern
the guilt or innocence of the defendant based on the criminal
charges” (p. 40). The condition for adjudication is the presenta-
tion of the evidence constituting the facts under litigation. Tem-
porarily speaking, firstly, “criminal trials hear and see evidence
to establish case facts, and judge and/or jurors then decide
whether or not those facts support the charges or complaints” (p.
36). How does factual legal argumentation promote conflict res-
olution through verdicts? On one hand, narratives provide the
background information to understand the conflict under ac-
count. In this sense, Schuetz states, “the legal issues embedded
in the attorney’s narratives create cognitive frameworks for ju-
rors to use to interpret the law and decide facts according to
their coherence, probability, and believability” (p. 45). On the
other hand, factual legal argumentation allows for a better un-
derstanding of the parties’ allegations because “stories enable
juries to connect the information to a story theme, make infer-
ences that fit the various parts of the story with a theme, and de-
cipher whether the story is consistent and complete” (p. 19).
3. A problem for R: The cognitive aspirations of legal
proceedings
My departure from R starts with my interpretation of S2. To re-
call, this is Goldman’s methodological step demanding to “Posit
an aim, or set of aims, of the legal adjudication system”. Some
clarifications are required. According to Goldman, theories of
legal proceedings fall into two categories: either they are plural-
istic or unified (2005, pp. 163-164). Pluralistic accounts hold
that legal procedures have different aims, no one of which is
prior to the other (e.g., fairness, justice, impartiality, allowing
pacific coexistence, seeking the truth, protection of civil rights,
etc.). Unified theories, in contrast, explain procedures with ref-
erence to one main end. They do not hold that legal procedures
actually achieve the selected goal; better yet, they use it as an
explanatory resource to clarify the main activities performed in
legal procedures. Within this second alternative, one can find
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pure unified theories and impure unified theories. Pure accounts
state that the legal practices taken into account are subsumable
in one exclusive desideratum. Impure unified alternatives defend
that although the aim of legal procedures is such an exclusive
aim, it is possible to recognize alternative goals coexisting with
the dominant rationale.
Schuetz’s account is a unified pure theory, for it suggests
that legal proceedings aim to resolve disputes, or differences of
opinion, and she does not prevent alternative goals to be
achieved by legal proceedings. From my perspective, the prob-
lem for unified pure theories is that they are too vulnerable to
counterexamples showing that the legal system is expected to
achieve goals that are not included in the exclusive end. For in-
stance, a theory that claims that the exclusive end of a system of
adjudication is to resolve disputes would be compatible with the
method of adjudication solving disputes through flipping a coin,
and a rule saying that whoever picked heads wins. Yet this does
not seem right because the law not only wants to solve disputes,
but to achieve justice, which is another possible desideratum for
legal systems. I believe that the problem for pluralistic accounts
is that they cannot account for the conflicts that could arise be-
tween the multiplicity of ends they propose because all of them
have the same importance. With this in mind, I propose an im-
pure unified theory. With Goldman (2005), I believe that the
aim of legal procedures is to secure “substantively just treatment
of individuals.” This goal is only achieved if valid laws are cor-
rectly applied and the knowledge of the facts under litigation is
achieved (p. 164).
Continuing with S3, I submit that factual legal argumenta-
tion cooperates with the subordinate goal of achieving
knowledge of the facts under litigation. R is the view holding
that the goal of factual argumentation in legal proceedings is to
persuade the fact-finder about the versions of the facts under
litigation. But, the belief the fact-finder is supposed to be per-
suaded of is not qualified; that is, it is not subject to further con-
ditions (Lumer, 2010, pp. 45-46). As a consequence, a fact-
finder could be persuaded of something that is true by chance or
of something that is not true; in one case or the other, the fact-
finder does not know what we are expecting him/her to know. In
Schuetz’s account (2007), this lack of qualification becomes ex-
plicit when she recognizes that,
“[s]ome of the stories attorneys tell are factual, and others
are fictional. Stories presented by one side of the case
may be untrue, but they persuade jurors and judges be-
cause they seem more probable and resonate with jurors’
experiences more that the other side of a case” (p. 19)
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Even worse, she paraphrases Walter R. Fisher to highlight that
“some clever and unethical narratives may seduce audiences in-
to believing false information” (as cited in Schuetz 2007, p. 19).
This is not to say that Schultz promotes unethical or false argu-
mentation in legal proceedings. In fact, she thinks that legal
principles shape legal narratives with “ideals such as respectful
relationships, truthful messages, and fair use of strategies and
tactics” (p. 51). My point is that even with all these ideals, R
does not satisfy our cognitive expectations for legal proceed-
ings.
First, under R, triers of facts do not know, even if they jus-
tifiably and truly believe. Given that the belief the fact-finder is
supposed to be persuaded of is not qualified, he/she could be
persuaded of something that is true by chance, as in the follow-
ing case.
Two officers plant cocaine in an automobile, and they
then give unrebutted testimony at the driver’s trial that
they found the cocaine after a consensual search of the
car. The driver, concerned about his prior record coming
out on cross-examination, does not testify and offers no
real defense. The fact-finder convicts the driver after
finding the officers credible. Now, unbeknownst to eve-
ryone except the defendant, he really did have cocaine in
the car that never was discovered. (Pardo 2005, p. 322)
As any other Gettier-type case, Pardo’s case shows that the fact-
finder does not know that the defendant had cocaine. However,
the fact-finder’s belief that the defendant had cocaine is true,
and the fact-finder is justified in believing that it is true, provid-
ed the two officer’s “unrebutted” testimony. In other words, this
case shows that the fact-finder did not know that the defendant
had cocaine; this finding was true, but just as mere coincidence.
According to Pardo, in modern legal proceedings, fact-finders
are expected to sentence based on the knowledge of the facts
under litigation and not on coincidentally true findings.
Second, under R, triers of facts do not know because they
do not justifiably believe. This is confirmed by an argument
from cognitive sciences. Empirical studies have shown that
prosecutors and criminal investigators who are held accountable
of their success in persuading are more prone to minimize, or
ignore, evidence inconsistent with their hypothesis than the ones
held accountable by a different criteria (e.g., using the right pro-
cedure for decision making or achieving the best outcome) or no
criteria at all (O’Brian 2009). If prosecutors and criminal inves-
tigators are prone to minimize, or ignore, evidence inconsistent
with their hypothesis, then prosecutors and criminal investiga-
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tors are not justified in believing that the defendant is guilty. In
adversarial criminal proceedings, fact-finders are expected to
render a verdict based upon the information and arguments that
prosecutors and criminal investigators present before them at
trial. If prosecutors and criminal investigators are not justified in
believing that the defendant is guilty, fact-finders will not be
necessarily justified in believing that the defendant is guilty.
Therefore, falling short of our social expectations, under R, fact-
finders do not know the facts that justify their verdicts.
4. Strict invariantism and extreme adversarialism
Moving to S4, my contention is that R does not take into account
the cognitive aspirations of legal proceedings because it is the
consequence of two accounts: strict invariantism and extreme
adversarialism. Strict invariantism is the view that the standard
of knowledge is one, and that it is high. For instance, some strict
invariantists claim that the standard of knowledge is scientific
knowledge. If a putative knower does not satisfy the standards
of scientific knowledge, then he/she does not know. Extreme
adversarialism is the view claiming that the nature of legal pro-
ceedings is adversarial, and therefore, the factual reconstructions
in legal proceedings are biased and incomplete. If legal agents
cannot meet the standards of scientific knowledge, and their fac-
tual reconstructions are biased and incomplete, then the most
they can do is to try to persuade the fact-finder of their versions
of the facts under litigation.
Let me illustrate these ideas with Susan Haack’s legal
epistemology. To begin with, let’s unpack her concept of in-
quiry. Broadly speaking, “inquiry is an attempt to discover the
truth of some question or questions” (Haack, 2004, p. 45). The
starting point of inquiry is a question, which perturbs a cognitive
agent. In solving this issue, he/she formulates one hypothesis
and starts looking for evidence, which confirms it. Not having
confirmation, the agent either modifies or abandons his/her ini-
tial conjecture. When the evidence leads to the true answer un-
der consideration, the inquirer’s aim is achieved. It is commonly
accepted that inquiry is a constitutive part of legal systems be-
cause the justice that they want to achieve depends on two sides
of the same coin. On one side, justice is conditioned by the ap-
plication and administration of just laws. On the other side, it is
a consequence of the truth determination of legally relevant
facts. The latter shows that the law is also one activity whose
core is inquiry. Haack counter-argues this position juxtaposing
science and law. Since the core of science is inquiry, it provides
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an archetype which law would fulfill if its core were inquiry as
well. Yet, the law does not conform to science. In Haack’s
words,
If the legal system were in the same business as history,
geography, or as physics and the other sciences, its way of
conducting that business would be peculiar, and ineffi-
cient, to say the least. But the law is really not in exactly
the same business (2009, p. 13).
For Haack, the main differences between science and law are the
following (see Table 1 below). Firstly, the equation of the three
main elements of the concept of inquiry (i.e., question, evidence
and answer) is different in science and law. A scientific method
starts with a question, which encourages the search for evidence
that could provide an answer for the original issue. Although
legal proceedings also start with a question, unlike science, legal
agents first provide answers to their initial questions and then
look for the evidence, which supports their position. Secondly,
the aim of science is to formulate, examine and answer ques-
tions, which explain how the world works. Alternatively, a legal
procedure is a non-violent social means of conflict resolution.
To be sure, the legal procedure is aimed to produce a verdict of
either guilt or liability, or non-guilt or non-liability according to
a body of evidence. This decision ends a dispute between two
adversarial parts (e.g., prosecutors vs. attorneys, or petitioners
vs. respondents). Third, the interest of science is not only to
solve a question, but also to provide explanations for phenome-
na. Hence, the object of science is general law, which explain
particular cases. Legal proceedings, instead, attain their goals
through particular cases. Fourth, when scientific results seem to
be unsatisfactory under new evidence, scientists wonder about
the problems of their partial results and, if necessary, those are
modified. In this sense, science is fallible. In contrast, the satis-
faction of legal resolutions implies both prompt and definite
verdicts. For one thing, extremely slow justice is not justice; for
another, constantly modified verdicts conduct legal insecurity.
Fifth, science is progressive, whereas law is conservative. To
clarify, scientific problem-solving dynamics are reiterative be-
cause once a scientific question is solved, a new issue is posited.
This leads to progressivism because, normally, the new ques-
tions are analyzed and answered using previous results. This
contrasts to the importance of precedent in legal decision-
making. Tackling the atomism of their case-based orientation,
legal systems unify verdicts using previous judicial decisions as
patterns for future decisions. Next, whereas science generally
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has unlimited time in order to solve a problem, legal problem
solving generally has much more rigid time constraints. Finally,
scientific investigation is free from formalities, while law estab-
lishes rituals for the resolution of social conflicts. In other
words, in their investigations, scientists do not use standardized
protocols. What is important is the explanatory power of their
theories, not the way through which they construct them. Legal
resolution of conflicts, on the contrary, homogenizes legal be-
havior through legal procedures. If legal agents do not follow
the procedural itinerary, they cannot achieve their objectives
(Haack, 2009, pp. 7-15; 2004, pp. 45-50; 2003, pp. 205-208).
Table 1: Juxtaposition Between Law and Science
Science …
Law …
… formulates a question, looks
for evidence, and answers the
question.
… searches for the truth.
… has investigative character.
… searches for general princi-
ples.
… has pervasively fallibilism
(i.e., is open to revision in the
light of new evidence).
… pushes for innovation.
… has unlimited time for solv-
ing a problem.
… has informal and problem-
oriented investigation.
…formulates a question, answers
the question and looks for the evi-
dence, which supports this answer.
… determines a defendant’s guilt
or liability or non-guilt or non-
liability.
… has adversarial culture.
… focuses on particular cases.
… is concerned with prompt and
final resolutions.
… defers to the precedent.
… has strong timeline con-
strictions.
… relies on formal rules and pro-
cedures.
To sum up, Haack’s strict invariantism fixes the standards for
knowledge with the concept of scientific inquiry. If a putative
knower does not satisfy the standards of scientific inquiry, then
he/she does not know. Even though Schuetz does not fix explicit
high and invariable standards for knowledge that legal systems
of inquiry should achieve, she, interpreting Stephen Toulmin,
differentiates the standards required for science from the stand-
ards required for legal systems.
The work of Stephen Toulmin (1960, 2001) explained
how fields or jurisdictions of arguments have different
goals, rules and standards of evidence. The strength or
weakness of the argument depends on how it meets the
general standards of the field. Legal argumentation is a
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specific field with its own peculiar standards and rules.
The reasoning in the legal field is subject to standards
that are different from reasoning in science and religion.
(Schuetz 2007, 16)
This strategy allows her to state that factual legal argumentation
does not need to be factive, but persuasive.
To continue, Haack’s extreme adversarilism comes from a
wrong generalization. She assumes the advocate’s perspective
and defines all law from this angle:
The advocacy that is at the core of the adversarial process
is a very different matter from inquiry […] the obligation
of an attorney, qua advocate, is to make the best possible
case for his client’s side of the disputeincluding play-
ing up the evidence that favors his case, and explaining
inconvenient evidence away if he can’t get it excluded.
(2009, p. 13)
But, why should we privilege advocacy and not fact-finding
which is the obligation of the triers of facts, investigators and
detectives? Haack could replay it in this way, “This is not to de-
ny that inquiry plays a role in the legal process […], but it is to
deny that inquiry is quite as central to the law as it is to science”
(2009, pp. 12-13). However, if someone asks for a positive ac-
count for the role of inquiry in legal procedure, one more time,
she does not provide a positive response. Schuetz is an extreme
adversarialist, for she understands legal proceedings exclusively
from the perspective of litigants. In her words,
Legal proceedings are contests that feature adversaries
with competing goals. These contests begin with an anal-
ysis of the evidence and arguments of a case. The attor-
neys act as game players; they adopt strategies and tactics
that navigate the rules and try to outwit each other in
their effort to win a verdict (2007, p. 24).
5. An epistemological theory of argumentation for
adversarial legal proceedings
If my intuitions are right, a theory of argumentation taking into
account the cognitive aspirations of legal proceedings should be
able to provide a theory of knowledge attributions for legal con-
texts and a theory of cognitive division of work for legal pro-
ceedings. The reason for this is that if it is correct to attribute
knowledge to legal agents, and the parties are part of a cognitive
system where each of them has a role to play in the achievement
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of legal knowledge, then the role of legal argumentation is to
transmit knowledge.
5.1. Knowledge attributions in legal contexts
Let me start with a theory of knowledge attributions for legal
contexts. As I take it, there is a knowledge attribution when an
agent, the attributor, asserts that another agent, the putative
knower, knows that p. By the same token, there is a knowledge
denial when the attributor asserts that the putative knower does
not know that p. The problem of knowledge attributions is, then,
whether the attributor correctly asserts that the putative knower
knows (or does not know) that p. Knowledge attributions and
denials differ from other knowledge relations such as having or
lacking knowledge, getting or not getting knowledge, detecting
or not detecting knowledge, and so on. For this paper, it is im-
portant to differentiate the problem of knowledge attribution
from the problem of knowledge possession, which is whether an
agent knows that p. While the latter is a first-order knowledge
relation, the former is a second-order (or meta-) knowledge rela-
tion. That is, the object of a knowledge attribution is a
knowledge possession. In one sentence, the problem of
knowledge attribution is not whether a putative knower knows
that p, but under which conditions it is correct to assert that a
putative knower knows that p.
My working hypothesis is that a knowledge attributor cor-
rectly asserts that a putative knower knows that p when the puta-
tive knower properly closes or advances his/her cognitive agen-
da. The conceptual background of my account comes from the
notions of agent and agenda. Shortly, an agent is an entity doing
something. Agendas are the objectives agents are disposed to
achieve (Gabbay and Woods, 2003, pp. 183-185; 195-219). In
this sense, “[a]n agenda is something like a network of tasks or
programmes to be discharged” (Gabbay and Woods, 2003, p.
182). Agendas and sub-agendas have conditions of closure de-
termining both the actions an agent is expected to perform in
order to achieve his/her objective, and the time range in which
he/she should do it. An agenda in course is properly closed
when agents deploy their resources in such a way that its condi-
tions of closure are obtained, but agendas are not closed sim-
pliciter. Instead, the agent’s matching of the conditions of reso-
lution comes in degrees. An agenda in course is properly ad-
vanced when some of its closure conditions have been obtained,
but not all of them yet (Gabbay and Woods, 2003, p. 215).
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“An agenda may involve things an agent desires to know,
or would find it useful to know for the transaction of certain
tasks, or the making of certain decisions in some contextually
circumscribed circumstances or states of affairs he is disposed to
realize” (Gabbay and Woods, 2003, p. 183). I refer to this as
cognitive agendas. A cognitive agenda is, then, a set of ques-
tions that a cognitive agent wants, or needs, to answer for the
achievement of his/her objectives. Agents pursue cognitive
agendas for the sake of knowledge or they are sub-agendas,
which enable them to achieve other purposes. Theories of epis-
temic risk claim that it is possible to differentiate between two
types of cognitive agents in accordance with their attitude to-
ward epistemic risk taking (Fallis, 2007; Levi, 1962; Mathiesen,
2011; Riggs, 2008). Whereas some agents withhold the ac-
ceptance of a proposition until all the information has been ob-
tained, other agents act with less caution and accept propositions
with incomplete information. Theories of epistemic risk claim
that agents accept propositions with incomplete information be-
cause of practical reasons. Think of a resident medical officer
dealing with clinical emergencies on behalf of admitting con-
sultants in juxtaposition with a professor of biochemistry study-
ing the chemical composition of bacteria resistant to penicillin.
Although both, the resident medical officer and the biochemistry
researcher, want a true answer for their inquires, the latter, but
not the former, can withhold it until all the information has been
collected. Cognitive agents adopting cognitive agendas for the
sake of the achievement of a practical goal are practical doxas-
tic agents. Theoretical agents, differently, pursue cognitive
agendas when it leads to “the truth and nothing but the truth.”
According to Gabbay and Woods, there are two factors
that determine the different types of cognitive agents (2005, p.
11). Firstly, there is the degree of command of resources (time,
information and computational capability) an agent needs to ad-
vance or close his/her agendas. Secondly is the height of the
cognitive bar that the agent has set for him/herself. With this in
mind, Gabbay and Woods incorporate a hierarchical approach to
agency. It postulates a hierarchy in which agents are placed in
light of their interests and their capacities. In this model, practi-
cal doxastic agents would be placed towards the bottom of the
hierarchy and theoretical agents would be higher up (see Table
2). While practical doxastic agents “perform their cognitive
tasks on the basis of less information and less time than they
might otherwise like to have”, theoretical agents “can wait long
enough to make a try for total information, and they can run the
calculations that close their agendas both powerfully and pre-
cisely” (pp. 11-12).
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Hierarchy
space
Table 2. Hierarchy of Cognitive Agents
My view is that, in terms of the hierarchy, legal agents are prac-
tical doxastic agents ranked higher than individuals solving day-
by-day-practical problems such as crossing a street, looking for
an address or cooking a meal; yet, legal agents are placed at a
lower level than are pure theoretical agents such as the research-
ers of the National Aeronautics and Space Administration
(NASA). To be sure, a legal agent commands more cognitive
resources than an individual solving day-by-day-practical prob-
lems. What is expected in the adversarial system of adjudication
is that the litigants, with the incentive of winning the case, look
for all the relevant information for the legal inquiry. Additional-
ly, they work in teams of inquirers, witnesses, and experts who
seek to make their versions of the case stronger. The idea is that
these parallel inquiries exhaust all the relevant information to be
known. Another important difference between an individual
solving day-by-day practical problems and a legal agent is the
cognitive aim they are disposed to achieve. Legal procedures
have a high cognitive aim, namely, to determine the truth of the
events under litigation. Legal agents serve this goal in different
ways. This is true even for litigants who apparently only serve
their respective side’s interests. When they take part in a legal
inquiry, their vantage point clarifies aspects of the events that
are inaccessible by the officials. Individuals, on the contrary, are
not always interested in the truth. This explains why individuals
are naturally hasty generalizers, or why they do not always use
truth-preserving strategies of reasoning (Gabbay and Woods,
2005, pp. 23-25; Woods, 2013, p. 212).
Even though legal agents are ranked higher than individu-
als, they do not have the resources that inquirers such as
NASA’s scientific groups have. Since legal inquiries have
strong timeline constrictions, they make decisions with incom-
plete and partial information. Furthermore, in dealing with facts,
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302
legal systems expect legal agents to reason as individuals and
not as experts. Experts take part in legal discussions as qualified
witnesses, but they are not able to make the ultimate decision.
The institution of the jury in adversarial systems illustrates this
point. Prima facie, any citizen can be part of the jury, unless
he/she has expert knowledge about the actual issues under con-
sideration. Given this case, the jury is excluded. Alternatively,
in legal systems in which the fact-finder should be an educated
citizen, what is expected is that such a qualified citizen be edu-
cated in the law, but not in factual matters such as forensic sci-
ence. To sum up, legal agents have the computational capacity
of an average person, or a reasonable person (Woods 2011, p.
226; 2015, p. 225). Therefore, they are ranked lower than theo-
retical agents, but higher than individuals.
To recall, from my perspective, knowledge attributions
have the purpose of stating that a cognitive agenda has been
properly closed. Given that the object of knowledge attributions
is cognitive agendas, the conditions under which knowledge is
properly attributed depends on the nature of the cognitive agen-
da claimed to have been properly closed or advanced. If my ide-
as are right, knowledge attributions in legal contexts depend on
the nature of the cognitive agenda under account and not on
standards belonging to foreign agendas such as the scientific
ones. To be sure, legal proceedings impose cognitive agendas on
its participants depending upon the activities they have to per-
form in each procedural stage. These agendas include closure
conditions for the required actions. When such standards are not
met, knowledge attributions are not justified. For instance, crim-
inal investigations are one of the sub-agendas of the prosecution
in criminal cases. The ultimate agenda of a prosecution is to
show, beyond a reasonable doubt, that a defendant committed a
crime. When the prosecution does not satisfy this burden, the
innocence of the defendant is assumed. The goal of criminal in-
vestigations is to present a case to the prosecutor. This includes
a cognitive agenda of determining whether a crime has been
committed, and who did it. Such cognitive agenda is closed or
advanced in two ways: either determining that there is good evi-
dence that there was an occurrence of a crime, or determining
that there is not good evidence for the occurrence of a crime.
Imagine a criminal investigator wondering whether there is good
evidence for the occurrence of a crime. Only relevant infor-
mation that is processed in the right way allows the criminal in-
vestigator to come to know if there is good evidence that the
crime occurred. There are two main sources of information in
criminal investigations: state of affairs, or physical evidence,
such as fingerprints, sound recordings, photographs, and so on,
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plus the testimony of eyewitnesses and other collaborators. Let
me focus on testimonial evidence. Testimonies are relevant
when they provide information useful to advance the agenda of
the criminal investigation. That is, they provide information use-
ful to determine that either there is good evidence for the hy-
pothesis that a crime occurred, or there is not good evidence for
such hypothesis. When this is the case, criminal investigators
attribute knowledge to the eyewitness, victims and other collab-
orators.
5.2 The cognitive division of work for legal proceedings
The cognitive division of work in legal contexts becomes clear
if we understand epistemic justification in legal contexts as a
type of belief-dependent cognitive process. This understanding
calls for some terminology from Alvin Goldman’s theory of ep-
istemic justification. To clarify, theories of justification are ac-
counts specifying the conditions under which a person is justi-
fied in believing (Goldman, 1979, p. 3). Consequently, a theory
of justification adopts the next structure:
S is justified in believing that p if and only if:
C1
C2
...
Cn
In this structure, S stands for a cognitive agent, p for a fact or
proposition, and C1Cn are the conditions for justificatory sta-
tus.
As a first approximation, Goldman suggests that:
S is justified in believing that p if and only if:
C: p results from a reliable cognitive process.
In this account, cognitive process is defined as a function with
inputs that have beliefs as outputs (p. 11). Two types of process-
es are important here. Firstly, the belief-dependent processes
have other beliefs as inputs. Secondly, the belief-independent
processes do not have other beliefs as inputs (p. 13). Perception
is an example of a belief-independent process. Reasoning, which
includes antecedent beliefs within their premises, is an instance
of a belief-dependent process. Following this terminology, there
are two kinds of beliefs. A belief-independent belief is the out-
put of a belief-independent process, and a belief-dependent be-
lief is the result of a belief-dependent process. Finally, reliability
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“consists of the tendency of a process to produce beliefs that are
true rather than false” (p. 10). While in belief-dependent pro-
cesses reliability depends on the truth of the inputs (i.e., it is
conditional), in belief-independent processes, reliability is cate-
gorical. From these distinctions, Goldman suggests two forms
for evaluating justificatory status.
The first form is for the belief-independent processes:
S is justified in believing that p if and only if:
C1: p is a belief-independent belief, and
C2: p is the result of a categorically reliable process.
The second form is for the belief-dependent processes:
S is justified in believing that p if and only if:
C1: p is a belief-dependent belief, and
C2: p is the result of a conditional reliable process.
If my interpretation of Goldman’s ideas is not wrong, le-
gal knowledge is a type of belief-dependent process. This for-
mula captures the core of my interpretation:
A legal agent is justified in holding an epistemic judgment
(j), in a legal procedure, if and only if:
C1: j depends on the procedural interventions of other
participants in the legal procedure, and
C2: j is the result of the truth-conduciveness of the legal
procedure.
I will explain these two conditions for legal knowledge below,
but a previous distinction is required. Goldman, in Knowledge in
a Social World, states: “[n]otice that I am speaking of judgments
rather than beliefs. The reason for this deviation is that the pal-
pable outputs of legal deliberations are not private beliefs but
public judgments of guilt and innocence, liability or non liabil-
ity” (1999, p. 272). This is an important distinction between
general epistemology and legal epistemology. While the former
studies epistemic justification independently of actual argumen-
tation, the latter is concerned with epistemic justifications pub-
licly justified in legal contexts.
To continue, legal agents do not perceive the facts under
litigation directly; rather, they form their judgments from differ-
ent sources of legal knowledge. To mention the most common
examples, the presumed fact that Y was murdered by X” is not
perceived by the detective who looks for relevant evidence that
establishes whether X murdered Y. Neither the prosecutor who
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publically accuses X of murder, nor X’s attorney perceived the
fact under litigation. Instead, they build their respective versions
of the case with information provided by their side’s detectives,
witnesses, material evidence, etc. Finally, the trier of facts—
judge or jury—does not perceive the alleged facts. On the con-
trary, he/she receives the information from the witnesses who
are examined and cross-examined at trial. As a consequence, j
depends on the procedural interventions of other participants in
legal proceedings.
If j depends on the procedural interventions of other par-
ticipants in legal proceedings, then j is not required to be cate-
gorically reliable, but conditionally reliable. In other words, the
truth of j depends on the truth of its inputs. Three examples pro-
posed by Goldman illustrate types of cues that juries find very
probative (2003, p. 221). First off, imagine a witness identifica-
tion testimony where the witness points his/ her finger at the de-
fendant and states, “This is the one.” With this information, the
trier of facts would probably decide that X murdered Y if the
witness pointed at X. However, identifications are not 100% ac-
curate. Witnesses also make mistakes, and this failure is trans-
ferred to the fact-finders’ decision. The second example is when
a person confesses that he/she did the crime under inquiry, a
judge (or a jury) tends to believe that the person who confessed
actually did the crime. But, some confessions are produced by
police intimidation or by the possibility of a plea bargain that
ends in a negotiation with less serious crime charges for the of-
fender. If X confesses that he murdered Y when he did not do it,
all legal judgments drawn from X’s confession will not be true.
Finally, when a technical clarification is needed to understand
the alleged facts, the trier of facts will rely on expert testimo-
nies. Since one of the most important criteria for accepting an
expert assertion is the credibility that the expert witness has,
some inaccurate expert testimonies are incorporated into legal
judgments. Ultimately, the credibility an expert has is not an ep-
istemic criterion (i.e., it is not related to seeking the truth). To
conclude, “we cannot expect any [inferential process in the field
of law] to make correct (truthful) inferences if its inputs or
premises are substantially inaccurate. ‘Garbage in, garbage out’,
as the saying goes” (Goldman, 1999, p. 219).
Under this account, the partisan argumentation might hon-
or the cognitive aspirations of legal proceedings. On one hand, it
is correct to attribute knowledge to the parties if they properly
close their cognitive agendas. On the other hand, the parties’
one-sided argumentation has a specific role to play in legal cog-
nitive systems.
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6. Conclusion
To briefly conclude, let’s look at how the epistemic theory of
legal argumentation in legal contexts would respond to the main
arguments against R. To recall, there is a cognitive aspiration in
legal proceedings that theories of legal argumentation should
take into account. In other words, theories of legal argumenta-
tion are supposed to show how legal argumentation leads to
knowledge. However, R does not respond to our social expecta-
tions. On one hand, given that under R, the belief a fact-finder is
supposed to be persuaded of is not qualified, the trier of facts
could be persuaded of something that is true by chance. Conse-
quently, the fact-finder does not know, even if he/she justifiably
and truly believes. On the other hand, since under R the beliefs
trier of facts are supposed to be persuaded of do not have to be
true or accurate, then R makes legal agents prone to cognitive
bias. As a consequence, they do not know because they do not
justifiably believe.
The epistemic view of argumentation holds that “the
standard output of argumentation is knowledge or justified be-
lief in the epistemological sense” (Lumer 2005, p. 190). Being
precise, an epistemological theory of legal argumentation would
defend that the standard output of legal argumentation is “justi-
fied judgment” and not mere “justified belief.” “The reason for
this deviation is that the palpable outputs of legal deliberations
are not private beliefs but public judgments of guilt and inno-
cence, liability or non liability”. This theory would serve better
the end of securing a substantively just treatment of individuals
because, from this perspective, arguments should be constituted
by true propositions. Consequently, an epistemic theory of legal
factual argumentation would orient the fact-finder better about
the facts under litigation.
Loosely speaking, an epistemic theory of argumentation
rules out epistemic luck because knowledge depends upon the
closing of cognitive agendas whose closure conditions demand
specific cognitive actions. In addition, an epistemic theory of
factual argumentation would not allow for cognitive bias be-
cause, in general terms, an agent is justified in believing some-
thing if there are not defeaters for that belief. The problem with
cognitive bias is that although cognitive agents have defeaters
for their beliefs, they ignore them, minimize them or think they
are unreliable. An epistemological theory of actual argumenta-
tion in legal contexts takes defeaters into account, and might be
useful reducing cognitive bias because it makes arguers ac-
countable of the evidence contrary to their positions.
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References
Fallis, Don. 2007. Attitudes towards epistemic risk and the value
of experiments. Studia logica 86(2): 215-246.
Gabbay, Dov and John Woods. 2003. Agenda relevance. Am-
sterdam: Elsevier.
Gabbay, Dov and John Woods. 2005. The reach of abduction.
Insight and trial. Amsterdam: Elsevier.
Goldman, Alvin. 2005. Legal evidence. In The Blackwell guide
to the philosophy of law and legal theory, eds. Martin Gold-
ing and William Edmunson, 163-175. Maden: Blackwell
Publishing.
Goldman, Alvin. 2003. Simple heuristics and legal evidence.
Law, probability and risk 2(3): 215-226.
Goldman, Alvin. 1999. Knowledge in a social world. Oxford:
Clarendon Press.
Goldman, Alvin. 1979. What Is Justified Belief? In Justification
and knowledge, ed. George Pappas, 1-25. Dordrecht: Reidel.
Haack, Susan. 2009. Irreconcilable differences? The uneasy
marriage of science and law. Law and contemporary prob-
lems 72(1): 1-23.
Haack, Susan. 2004. Epistemology legalized: Or, truth, justice,
and the American way. The American journal of jurispru-
dence 49(1): 43-61.
Haack, Susan. 2003. Inquiry and advocacy, fallibilism and final-
ity: Culture and inference in the science and in the law. Law
probability and risk 2(3): 205-214.
Levi, Isaac. 1977. Epistemic utility and the evaluation of exper-
iments. Philosophy of science 44(3): 368-86.
Lumer, Christoph. 2005. The Epistemological Theory of Argu-
ment—How and Why? Informal logic 25(3): pp. 213-243.
Lumer, Chistoph. 2010. Pragma-Dialectics and the Function of
Argumentation. Argumentation 24(1): 41-69.
Mathiesen, Kay. (2011). Can groups be epistemic agents? In
Collective epistemology, eds. Hans Schmid, Daniel Sirtes
and Marcel Weber, 23-44). Frankfurt: Ontos Verlag.
O’Brien, Barbara. 2009. Prime suspect: An examination of fac-
tors that aggravate and counteract confirmation bias in crimi-
nal investigations. Psychology, policy and law 15(4): 315-
334.
Pardo, Michael. 2005. The field of evidence and the field of
knowledge. Law and philosophy 24(4): 321-392
Perelman, Chaim. 1976. Logique juridique. Nouvelle rhétorique.
Paris: Dalloz.
Riggs, Wayne. 2008. Epistemic risk and relativism. Acta analyt-
ica 23(1): 1-8.
Danny Marrero
© Danny Marrero. Informal Logic, Vol. 36, No. 3 (2016), pp. 288-308.
308
Schuetz, Janice. 1994. The logic of women on trial. Case studies
of popular American trials. Carbondale: Southern Illinois
Evicersity Press.
Schuetz, Janice. 2007. Communicating the law. Lessons from
landmark cases. Long Grove: Waveland Press.
Toumin, Stephen. 1958. The uses of argument. Cambridge:
Cambridge University Press.
Viehweg, Theodor. 1953. Topik und jurisprudenz: Ein Beitrag
zur rechtswissenschaftlichen. Grundlagenforschung. Munik:
H. C. Beck.
Wagenaar, Willem; van Koppen, Peter and Crombag, Hans.
(1993). Anchored Narratives: The Psychology of Criminal
Evidence. New York: St Martin’s Press and Hertfordshire.
Woods, John. 2013. Errors of reasoning: Naturalizing the logic
inference. Milton Keynes: College Publications.
Woods, John. (2011). Abduction and Proof: A Criminal Para-
dox. In Approaches to legal rationality, eds. Dov Gabbay,
Patrice Canivez, Shahid Rahman and Alexandre Thiercelin ,
217-238. Dordrecht: Springer.
Woods, John. (2015). Is legal reasoning irrational? An intro-
duction to the epistemology of law. London: College Publica-
tions.
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