The Language of Argument

3 8 2

C H A P T E R 1 8 ■ L e g a l R e a s o n i n g

The important thing to see is that you cannot establish the truth of some-

thing through an appeal to the burden of proof. The following argument is

perfectly weird:

There is life in other parts of the universe, because you can’t prove

otherwise.

Of course, no one can prove that there is not life elsewhere in the universe,

but this has no tendency to show that there is. Attempts to prove the truth of

something through appeals to burden of proof—often called arguments from

ignorance—are another example of a fallacy of relevance. (See Chapter 15.)

Nonetheless, the importance of burden of proof in the law does give force

to another kind of argument. In a criminal case, the following argument

would be perfectly fine:

The defendant ought to be found not guilty, because the prosecution has

not proven beyond a reasonable doubt that she is guilty.

This argument would also be a fallacy of relevance if the burden of proof

were not so important. But the relevant burden of proof makes this argu-

ment strong in a court of law. Who bears the burden of proof and how heavy

the burden is, determine which legal arguments work. Consider the follow-

ing argument:

This law uses a suspect classification, and the state has not shown that it

serves any compelling purpose, so the law is unconstitutional.

This argument is strong if the strict-scrutiny interpretation is accepted (as-

suming the premises are true). But this argument fails if a weaker burden

of proof is required, as in the rational-relation test. When one chooses be-

tween interpretations of the equal protection clause and between differ-

ent burdens of proof, one also chooses which arguments will have force in

courts of law. This is another example of a general phenomenon that has

been stressed throughout this book—that background assumptions can de-

termine whether an argument is any good.

Try to formulate general rules governing who has the burden of proof when

people disagree. Be sure to consider a variety of areas, such as science, religion,

philosophy, morality, and personal life.

Discussion Question

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