According to the A.D. 1992 edition of O’Connor’s Texas Rules Civil Trial, Texas courts recognized kinds of hearings: 1) evidentiary; and 2) argument. Neither kind of hearing was favored over the other. However, according to the A.D. 2005 edition of O’Connor’s same book, those two kinds of hearings are still recognized, but “evidentiary hearings are [now] disfavored”.
In other words, the modern court system prefers to reach decisions based on argument hearings wherein litigants advance premises (beliefs) rather than evidentiary hearings where litigants introduce facts (objective truths) into the record. As a result, someone skilled in the art of argument (like an attorney) could theoretically win in a hearing even when the facts (truth) were against him. More, it appears that the courts prefer that hearings be decided by argument rather than by factual evidence (truth).
Note that this preference for argument rather than evidence applies to pre-trial “hearings” rather than actual trials. However, the typical trial is not merely preceded but often decided by those pretrial hearings/arguments that are conducted outside the presence of a jury. It’s not only possible, but common for a case to be won or lost based on various pretrial argument hearings that took place prior to the trial and without the opportunity to present factual evidence to the jury.
For example, during a pretrial hearing, a plaintiff or prosecutor might submit a “motion in limine” wherein that litigant would argue that the defendant should not be entitled to introduce certain evidence at trial. If the court grants this “motion” submitted at a pretrial, argument hearing, the defendant may be precluded from introducing evidence at the later trial which he deems crucial to his defense. As a result, the defendant could ultimately find himself found guilty at trial based on pretrial arguments rather than the introduction of factual evidence at the trial, itself. I.e., by means of pretrial argument, a defendant can be stripped of his opportunity to present exculpatory evidence at the trial itself. Based on a pretrial argument that the jury could not hear or know of, a defendant can be made to look like an idiot before the jury at trial since he seemingly has no little or no evidence to present in his defense.
For all practical purposes, the actual trial can be effectively “fixed” by means of pretrial arguments.
Note that the jury is commonly referred to as a trial’s “fact-finder”. Juries determine facts but not arguments. Arguments, silly rabbit, are for judges. Thus, the court’s recent switch towards favoring argument hearings over evidentiary hearings suggests an attempt the court to distance the judicial process from the jury.
Note also that within the courts, the words “motion” and “argument” are essentially synonymous. I.e., whenever an attorney makes a “motion,” he makes an “argument”. Every motion is an argument.
Once you begin to see that all motions are “arguments,” and that virtually all pretrial “motion hearings” are “argument hearings,” you can begin to understand how awful and important the concept of argument is to the modern judicial system. Again, by skillful use of pretrial motions (arguments), the outcome of the later trial can be determined. Those who are unable to argue effectively are more likely to lose—often based on pretrial arguments rather than facts (evidence). Conversely, those able to understand the concept of argument may find themselves better equipped to defend themselves at trial.
In fact, once you begin to think about it, you’ll realize that all of the “charges,” “accusations,” “claims,” “informations,” and “indictments” found our current courts are essentially nothing more than arguments. Given that realization, it’s hard to Ignore the importance of learning to understand the process of “argument”.
Argument in Spiritual Warfare
The apostle Paul touched on the concept of “argument” in his discussion of “spiritual warfare” at 2 Corinthians 3-6(NKJV of the MacArthur Study Bible):
“For though we walk in the flesh, we do not war according to the flesh. For the weapons of our warfare are not carnal, but mighty in God to the pulling down of strongholds; casting down arguments and every high thing that exalts itself against the knowledge of God, bringing every thought into captivity to the obedience of Christ; and being ready to punish all disobedience, when your obedience is fulfilled.” [Emphasis added]
Fascinating. At least part of spiritual warfare involves the “casting down” of arguments that exalt themselves against the knowledge of God (truth). I might “argue” that the “knowledge of God” corresponds to the truthful facts introduced into evidence at an evidentiary hearing.
The MacArthur Study Bible also offers some “study notes” on the previous verses, including:
“our warfare. The motif of Christian life as warfare is a common one in the NT (cf. 2 Cor 6:7; Eph 6:10-18; 1 Tim. 1-18; 2 Tim. 2:3-4; 4:7) . . . . The formidable spiritual strongholds manned by the forces of hell can be demolished only by spiritual weapons wielded by godly believers—singularly the “sword of the Spirit” (Eph. 6:17), since only the truth of God’s Word can defeat Satanic falsehoods. This is the true spiritual warfare. Believers are not instructed in the NT to assault demons or Satan (see note on Jude 9), but to assault error with the truth. That is our battle (cf. John 17:17; Heb. 4:12).”
“arguments. Thoughts, ideas, speculations, reasonings, philosophies, and false religions of the ideological forts in which men barricade themselves against God and the Gospel (cf. 1 Cor. 3:20).”
If it were true that arguments consist of those “ideological forts” (“thoughts, ideas, speculations, reasonings, philosophies, and false religions”) in which “men barricade themselves against God and the Gospel,” it might follow that the principle means of defense against a false argument might be a skillful use of God’s Word and the Bible. I.e., our most skillful defense against an attorney’s skillful argument might be a verse from the Bible by means of which we might “assault” his “error” (false premise) of one’s argument with the “truth”.
The average person might suppose the previous paragraph is nothing but “holy roller” nonsense. Any fool can see that you can’t defeat legal arguments with biblical scriptures, right?
Maybe not. In fact, what is an argument except an attempt to persuade a listener (a judge or jury) that a certain conclusion (guilty or not guilty) is true based on a certain set of “premises”? Thus, an argument relies on premises as evidence rather than facts. And what are “premises” if not a series of “beliefs“?
The essential difference between the evidentiary hearings and the argument hearings is that evidentiary hearings focus on the admission of facts as evidence on which a conclusion can be based while argument hearings seek to reach a conclusion based on the admission of premises as evidence. Well, if the “premises” of an argument on nothing more than a series of “beliefs,” why couldn’t my spiritual beliefs (as found in the Bible) defeat the secular beliefs advanced by some attorney as a premise for an argument?
[An argument based on beliefs is ultimately based on each “arguer’s” FAITH in his beliefs/premises. Thus, most argument is a kind of religious or “holy” war between two competing systems of beliefs or FAITHS. . . .]
See my point? Because arguments are primarily based on “premises” (beliefs) rather than facts, the proper defense to argument is not to argue a different set of facts, but rather a different set of beliefs. Given the 1st Amendment’s protection of my spiritual beliefs, how can an argument based on ungodly “beliefs” overcome my argument based on spiritual “beliefs”?
Incidentally, if you look up the word “belief” in Black’s Law Dictionary (4th Ed. A.D. 1951), you’ll see that “belief” is defined as “a conclusion arrived at from external sources after winning probability,” and “conviction of the mind, arising not from actual perception or knowledge, but by way of inference welcome evidence received or information derived from others.” More, “knowledge is an assurance of a factual proposition founded on perception by the senses, or intuition; while “belief” is an assurance game by evidence, and from other persons.”
Thus, all “belief” is hearsay.
In so far as the premises in an argument are statements of “belief,” that argument is built on hearsay which, unlike facts, is inadmissible at trial. Thus, the arguments/motions at pretrial hearings present an opportunity to use inadmissible hearsay to determine a defendant’s guilt or innocence at the later trial.
Get that? By skillful use of argument, the outcome of a trial can ultimately be determined based inadmissible hearsay rather than admissible facts.
That’s scary. But if you’ve been around our courts, you know or suspect that it happens all the time.
In any case, I might “argue” that in today’s courts, the “truth of God’s Word” includes the relevant, objective facts (truth) that could be introduced into evidence. Conversely, I might “argue” that “Satanic falsehoods” could include those skillful “arguments” based on false “reasonings” and “false religions” (premises and beliefs) that contradict or confuse the facts (truth) of a particular controversy and tend towards a false conclusion (verdict).
As peripheral support of this argument, I might note that the word “attorney” is derived from the medieval word “attorn” which meant “to twist”. If it could be said that modern attorneys “twist” the truth in court, that “twisting” process would most usually be achieved by means of argument.
You might also recall that today’s courts are described as an “adversarial” system. Coincidentally, one of the definitions for Satan is “adversary”. Make of that what you will.
Another “coincidental” definition for Satan is “false accuser”. In so far as modern courtroom “accusations” are essentially arguments, then Satan might be defined as “one who advances a false argument”. In a sense, then a “false accuser” is a “false arguer”. You might say that a “false accuser” is one who argues for a series of premises/beliefs which he does not truly embrace. A “false arguer” might also be called a “debater”. Again, you can make of the relationship between Satan and false arguments whatever you will.
“Plausible Deniability and Evasion of the Burden of Proof”
In A.D. 1996, Douglas Walton, a Canadian professor of philosophy, wrote the article “Plausible Deniability and Evasion of Burden of Proof” (http://www.dougwalton.ca/papers%20in%20pdf/96deniality.pdf).
That article’s fundamental theme is that various kinds of argument can be used to create ambiguity. Ambiguity then gives rise to plausible deniability for the purpose of entering mere premises (beliefs) instead of factual evidence into a record and thereby evading the “burden of proof”.
In other words, by skillful use of argument, an advocate (perhaps an attorney) might present certain premises (beliefs—and even false beliefs—but not facts) as grounds for an argument used to persuade a listener (perhaps a judge or jury) that a certain conclusion (verdict) was valid. Based on such argument, a particular conclusion (verdict) might not only be adopted as valid without supporting facts in evidence, but also even when the conclusion was patently false.
The Canadian professor who authored the “Plausible Deniability” article did not suggest that his insights on argument had application to the American judicial system.
I, however, do.
In fact, I read the original article with a sense of excitement since it seems to describe and explain what may be part of the fundamental nature of modern American judicial system: reliance on argument (including beliefs and propositions) rather than factual evidence to win lawsuits. If so, the original article offers an indirect but potentially profound insight into how our “judicial” system functions, and by implication, how we might control that system to our advantage.
The following is most of the text of the original article plus all of my usual color-highlighting and my various “stream of consciousness” comments in [bold, bracketed blue]. Operating on the hypothesis that the there’s a high degree of similarity between “argument” and “notice,” I’ve also inserted a series of questions (“Q.”) concerning argument that might be included in an inquiry in response to a notice.
Dr. Walton begins:
“This article examines the normative structure of certain distinctive types of arguments that use techniques of plausible deniablility to evade fulfillment of legitimate requirements of burden of proof. Understanding how such techniques are used in everyday argumentation is shown to be crucial to gaining insight into how informal fallacies work as effective tactics of deception when two parties reason together. The techniques use an indirect form of putting forward a proposition that a target respondent (or audience) is meant to accept, while building in a defense to shield off the need to respond to any request to justify (or give evidence to support) the proposition queried by the respondent.”
That which is “reasonable” is “arguable”. When two parties “reason together,” they essentially “argue”. Arguments of the sort described by Dr. Walton use deception to “evade the burden of proof”. More, such argument/deception is intended to “shield off” any “query” (questions) by the respondent to ask that an adversary justify or prove his fundamental propositions with evidence.
I’m currently fixated upon the use of questions to defeat notices, jurisdiction, etc.. I’ve advanced my notions on questions in other articles on this blog which can be found by simply entering “notice” in the blog’s search engine. This article suggests how the courts and gov-co prosecutors might use deceptive argument to defeat most inquiries (questions).
By implication, this article 1) supports my belief in the power of questions and 2) suggests that the only defense to insightful questions may be plausible deniability based on deception. Deception, however, is a form of fraud and typically evidence of criminal activity. Thus, insofar as our judicial system relies on deception to subject us its jurisdiction and decrees, that system is “arguably” a criminal enterprise.
Dr. Walton’s article describes plausible deniability, the evasion of a need for evidence and underlying deceptive argument within a “sanitized” context of private debate. On the surface, that description seems “intellectual” and interesting, but harmless. However, in the real world, arguments based on deceit and devoid of evidence can be critically dangerous because they are routinely relied by gov-co prosecutors and politicians as devices to grab power and rob or betray the public. Political arguments based on deception and plausible deniability but unsupported by evidence can be properly described as “propaganda”.
I don’t know who invented propaganda, but that technology was significantly advanced by the Nazis under the name of the “big lie”. Today, the “big lie” probably won’t work (evidence is too readily available on the internet). But where the “big lie” now fails, the “big argument” (backed by deception and plausible deniability) can succeed.
Dr. Walton continues:
“Jamieson (1992, p. 84) cites a technique of “veiled attack” used in recent political campaigns where a “double message” buries a “taboo” proposition in a socially acceptable surface (coded) text of discourse. The goal is to achieve “plausible deniability,” as illustrated by the following case (Jamieson, 1992, p. 84):
“Case 1: As Congress struggled to unravel the Reagan administration’s arms for hostages deal known as Iran-Contra, a new exculpatory phrase entered the American political lexicon. Vice Admiral John Poindexter described the concept in his testimony to the congressional committee studying Iran-Contra. “I made a deliberate decision not to ask the President,” said Poindexter, “so that I could insulate him from the decision and provide some future deniability for the President if it ever leaked out.” When veiled attack succeeds, it accomplishes its end without endangering its creator. It is plausibly deniable.”
First, note that Admiral Poindexter “made a deliberate decision not to ask the President”. Again, we see evidence of the power of questions. If the Admiral had asked the President, the Admiral would’ve forced the President to answer and thereby create evidence of the President’s knowledge and complicity. So long as there are no answers, there’s no evidence, and the President can “plausibly deny” his knowledge of or complicity in the deceit/fraud/crime.
Note also that there’s no pretense that the President was not knowledgeable or complicit in the particular fraud. The President knew and Poindexter knew the President knew, but so long as Poindexter did not ask any questions, he protected the President from the danger of creating evidence of his knowledge.
Point: In a political system built on argument rather than evidence, how do you create evidence (and therefore personal liability for the respondent)?
A: By means of QUESTIONS.
Why? Because answers create evidence of personal knowledge and thus personal intent—especially when the answers are under oath. Intent is the essence of every criminal act. If you want to create evidence of your adversary’s culpability, start by asking questions.
This isn’t news. Most of what prosecutors and attorneys do in court is to ask questions. The object of those questions is either to establish evidence of a defendant’s guilt or evidence that a witness is not credible.
Second, the previous “Case 1” suggests that a person (like Admiral Poindexter) or institution (the courts, for example) that you trust to protect you or your rights could launch a “veiled attack” (a “quiet war”?) against you (or even all Americans) based on deception. This veiled attack could be hidden behind a wall of “plausible deniability”. Thus, under the guise of argument based on deceitful premises (rather than facts), you might be stripped of your property and rights and left without remedy against those who betrayed and robbed you. I.e., so long as they can hide behind “plausible deniability” they can’t be charged with a crime. Their “offense” was, at worst, an unfortunate accident.
For example, under the guise of strengthening our domestic economy, your gov-co might send your jobs and industrial capacities overseas—knowing full well that the real effect would be to weaken or perhaps even collapse our domestic economy while strengthening foreign economies.
Alternatively, our gov-co might argue that in the name of “public safety” (a false premise) it’s entitled to strip us of our right to keep and bear arms. This deprivation would be based on deceptive arguments such as our physical safety is more important than our God-given, unalienable Rights, or that the gov-co is here to “help us”. Such deceptive arguments could be shown to be based on false premises (not facts) by presenting the evidence (facts) of increased crime, violence, political oppression and even genocide that inevitably follow whenever governments seize the people’s firearms. But if the issue were decided by argument and deception, there might be no “burden of proof,” no allowance for “evidence”—and thus, under the deceit of plausible deniability, liberty could be lost and the nation might be destroyed.
The antidote to such destruction is to never give the bastards the benefit of the doubt. I don’t give a damn what their good intentions (premises) may have been. If the evidence (not argument) reveals the resulting programs don’t work as anticipated, cancel those programs, fire those who devised the programs, do not be persuaded to invest even more money into a program that any fool can see doesn’t work—or worse, achieves a result opposite to that which was allegedly sought.
Government involvement in American education comes to mind. The more state and federal money we devote to education, the worse our children are educated. Don’t screw with the bastards. Don’t believe their arguments based on seemingly noble premises. Believe only the evidence (facts). If existing system of American education is failing, then the existing system must be terminated and then replaced with another system that might work. If the resulting facts show the second system also doesn’t work, terminate that one, too, and devise a third system. Learn to make your decisions based on evidence of facts rather than the beguiling premises of argument.
And how do you create such evidence that an argument is based on false premises and therefore deceptive? By asking questions about the premises (rather than facts) on which the argument is built. We can defeat deceptive arguments and plausible deniability with questions—provided that we ask those questions early, repeatedly and under an authority that compels our adversary to answer.
Dr. Walton continues:
“This factor of plausible deniability is very important in helping us to understand how the major informal fallacies actually work as credible tactics of deception in everyday argumentation. Our focus in this paper is on normative and structural questions, particularly, in judging how arguments that use the strategy indicated in Case 1 evade or defeat reasonable, and appropriate requirements of burden of proof.”
By “informal fallacies,” I suspect Dr. Walton may be describing the false premises (beliefs rather than facts) that underlie deceptive arguments. These “informal fallacies” could include courtroom presumptions like the belief that a defendant acted “in this state” rather than “within The State,” or was a “person” or “citizen” rather than a man. If these presumptions/premises are not expressly refuted, the arguments based on them can be accepted as a sufficient basis for conclusions (like “Guilty, as charged!”) that are factually false.
The traditional “burden of proof” in court—especially in criminal prosecutions—imposes a “burden” upon a plaintiff or prosecutor to introduce sufficient facts into evidence to convince the judge and/or jury that the defendant is guilty. But—Dr. Walton implies that by means of false premises and deceptive argument, it might be possible to evade the burden of (factual) proof. If that were true in our courts, then a man might be convicted of a crime based on false premises and deceptive argument rather than by introducing sufficient facts into evidence.
Dr. Walton continues:
“Case 2: In 1964, the Democrats and Republicans demonstrated that they understood television’s power to use visual association to evoke audience inferences [premises]. The Democrats juxtaposed a child plucking the petals from a daisy with the explosion of a bomb as Lyndon Johnson extolled the value of loving one another. A young girl is picking daisies in a field. “Four, five, six, seven,” she says. An announcer’s voice (actually the voice used to count down the space launches at Cape Canaveral) begins an ominous count. “Ten, nine, eight . . .” At zero the camera has closed on the child’s eye. A nuclear bomb explodes. Lyndon Johnson’s voice is heard: “These are the stakes. To make a world in which all of God’s children can live. Or to go into the darkness. We must either love each other. Or we must die.” Until the tag line appears, that ad has no explicit partisan content. “Vote for President Johnson on November 3. The stakes are too high for you to stay at home.”
“This argument was an ad hominem attack on Goldwater (as well as being a use of appeal to fear) that suggested that Goldwater was an untrustworthy person [false premise], even an unstable person, who lacked good judgment skills [false premise]. The conclusion suggested was that Goldwater was not a suitable candidate for president. But as Jamieson shows in her analysis of the ad, the ad is based on suggestions cued by images juxtaposed with ominous warnings. No explicit ad hominem argument is verbalized, in a way that makes definite assertions that would carry with them a burden of proof. One may wonder why ad hominem arguments of this type are so effective.”
In other words, if the Democrats had verbalized “definite assertions,” they could be called upon to produce sufficient factual evidence to support those “definite assertions”. However, since the assertions (allegations) were implied rather than stated, the Dem’s were able to avoid the obligation to prove their “argument”.
Could a similar procedure be used in our current court system to 1) avoid the burden of proof; and 2) winning convictions with argument and premises rather than factual evidence?
Y’ damn right it can.
Dr. Walton continues:
“. . . these arguments are frequently put forward as suggestions, in the sense that the speaker is only seeking some sort of provisional or tentative acceptance of the conclusion by the hearer. For example, in the “guilt by association” subtype of ad hominem argument, a [opponent’s] claim is refuted by arguing that the claimant is associated with some discredited group, and therefore cannot be trusted to tell the truth (Toulmin et al., 1979, p. 173). But traditional logic, of the deductive and inductive sort usually emphasized, has not been very useful in helping us to understand these suggestions and tentatively offered ways of proposing an argument that are so common in popular speech (Walton, 1992, chapter 5).
“To attempt to remedy this traditionally neglected area, and to give some theoretical basis for coming to understand and evaluate the kinds of arguments associated with fallacies, Hamblin (1970, pp. 256-257) defined the concept of argument as an exchange of moves between a speaker and a hearer in the framework of a dialogue (dialectical system) [argument?]. As a participant makes moves in a dialogue, propositions are inserted into or deleted from her commitment set, defined by Hamblin (p. 257) as a set of propositions that operates approximately as if it corresponds to the persona or beliefs of an arguer.”
The “arguer” who takes on a “persona” would argue on behalf of, or as if he was that other person/persona. Thus, an attorney could argue on behalf of a defendant, or the man “Adask” might argue on behalf of the “persona” “ADASK”. (It strikes me as remotely possible that only a living man could enter objective evidence, while a “persona”/person might only be able to introduce subjective “arguements”.) The additional reference to “beliefs” suggests that the “arguer” can argue based on either 1) the “beliefs” of whatever “persona” he represents; or 2) on the basis of his (the “arguer’s”) actual, personal “beliefs”.
But note that both the “commitment set” of the “persona” and the “commitment set” of the actual “arguer” correspond to either entity’s set of “beliefs”. Then, note that all “belief” is hearsay based on someone else’s information rather than direct, personal knowledge. Why did you believe in Santa Claus? Because your mommy told you he existed. Belief is always based on some indirect or second-hand information. Only knowledge is based on direct, first-hand personal perception. I know what I have personally seen. I believe what I have read. All “belief” is, by definition, hearsay.
Therefore, both “commitment sets” (of the “persona” or the “arguer”) would be based on belief (hearsay) rather than evidence.
In a criminal setting, if a prosecutor’s “commitment set of propositions” was based on “beliefs” acquired from other persons, all of those “beliefs” might be attacked as hearsay. If the actual parties responsible for causing these “beliefs” were not produced in court, the defendant might be able to argue that he was denied his right to confront is accusers.
Even in a civil case, if a plaintiff’s “commitment set of propositions” can be accurately discerned, each proposition (premise) can probably be attacked as hearsay (belief) rather than fact.
- Argument need not include “evidence”. That’s why our courts recognize both “argument” and “evidentiary” hearings—you can have argument without evidence. Argument appears to be primarily a contest of personal “beliefs” and “propositions”—premises rather than facts.
We might reasonably ask why the current legal system is devoted moreso to argument than to evidence. One answer may be that the modern system of “this state” (rather than “The State” created by a State constitutions and as a member of the perpetual Union) may not be able to produce evidence of its existence. The territorial/fictional “state” routinely referred to a “this state” (see Texas Penal Code section 1.04) may exist only as a belief, as an argument, as a deception, as a false premise, as a lie—but not as an entity that can be shown to exist by evidence.
“The State of Texas” exists because there is an instrument (“The Constitution of The State of Texas”) that provides evidence of the creation and existence of “The State”. But what evidence shows the creation and existence of “this state” (Texas Penal Code 1.04)? According to the letter attributed to Senator Tom Harkins (see, https://adask.wordpress.com/2008/05/27/sen-harkins-letter-edited/ ), “this state” is an implied charitable trust. If this trust is merely “implied” then, by definition, there can be no express document that might be presented as evidence to prove the existence of “this state”.
Makes me laugh. With the right set of questions, you might be able to compel the bastards that operate and populate “this state” to either admit that “this state” doesn’t actually exist or drop the case against you.
Insofar as we are currently ensnared in a legal system based on argument moreso than evidence, what is the legal alternative to “argument”? What is the proper name for a litigative process that dismisses mere “belief” and resulting “argument” as insufficient? Due course of LAW?
Does all law require EVIDENCE (FACTS)? Can equity or administrative process rely (in at least some instances) exclusively on ARGUMENT (premises/beliefs)?
If it were true that “ADASK” signifies a fictional entity other than the man “Adask,” insofar as “ADASK” could never testify, whenever “Adask” or an attorney represented “ADASK,” they might only “argue” in “ADASK’s” persona based on “ADASK’s” purported “beliefs” or based on the personal beliefs of the arguer, himself.
Dr. Walton continues:
“In everyday argumentation, propositions are often brought forward as suggestions or provisional hypotheses, rather than as outright assertions. In many instances of argumentation, especially in practical deliberations, the evidence for or against a particular proposition may be insufficient to categorically deny or assert it as true.”
Thus, in the absence of sufficient evidence (facts), a litigant might naturally seek to win in an “argument hearing” rather than “evidentiary hearing”.
The requirement that evidence be considered both “for” and “against” the argument/ notice/proposition suggests that the argument “recipient” would assume at least part of the burden of “disproof”. I.e., in an argument system, the “burden of proof” is not exclusively on the plaintiff (arguer). As declared in Dr. Walton’s next paragraph, if the plaintiff could provide any evidence to support his argument, the defendant would have produce overwhelming evidence that the argument was false. Thus, in argument, the burden of proof/disproof would be at least shared by both plaintiff and defendant. The defendant would be denied the presumption of innocence and compelled to somehow prove he was “not guilty”.
Now, get this:
“However, if, at any particular point in a dialogue [argument], there is no overwhelming evidence against the proposition, and there is some small weight of evidence put forward in favor of it, a speaker may propose the proposition as a suggestion, and the hearer [judge? The party conducting the “hearing”?] may provisionally accept it on that basis.”
For example, let’s suppose that a “notice” is nothing but an argument based on the “beliefs” (propositions) of the person who drafts the notice/argument or the “persona” (say “ADASK” or the “IRS”) he represents. If there were even “some small weight of evidence” for his argument, but no “overwhelming evidence against” that argument/propositions, then the hearer (judge?) “may” exercise his discretion to “provisionally accept” the arguer’s argument/ propositions/beliefs.
Insofar as the “arguer” (plaintiff/prosecutor?) drafting the notice/argument need only “some small weight of evidence” to support his argument while the person (defendant?) disputing the argument must produce “overwhelming evidence against,” then the burden of proof would not merely be shared by the plaintiff and defendant, but be primarily shifted from the plaintiff/prosecutor to the “defendant”. Thus, by means of argument, it might be possible to reverse the burden of proof.
This sounds a lot like the modern courtroom process: The defendant is guilty not only until proven innocent—but proven innocent by “overwhelming” evidence.
Could it be that our modern courts have shifted the burden of proof to defendants by virtue of relying on argument rather than evidence?
Dr. Walton again:
“When suggestions are put forward, they are accepted tentatively rather than wholeheartedly (in Hamblin’s sense). This means they are accepted provisionally, i.e. they are accepted as presumptions holding at that point, and for some subsequent points in the dialogue, but they may later be given up or rejected.”
When we “accept” a document or notice without question, do we implicitly “accept” the propositions within that documents as valid “presumptions”? Should questions in response to notice be expressly inquire as to the “propositions” and “premises” on which the notice (argument???) is based?
Can a notice be construed as a mere “argument”?? That possibility makes some sense—especially in a world of “notice pleading” in a legal system where evidentiary hearings are now “disfavored” and argument hearings are predominate.
“There are two importantly different types of acceptance or commitment in argumentation that need to be distinguished. One is the type of acceptance that carries with it an obligation to defend the proposition accepted.”
Note that “acceptance” = “commitment”. To “accept a proposition” is apparently to accept the conclusion proposed by the argument.
Also, this “obligation to defend the proposition” would presumably include the obligation to produce evidence to support the proposition.
“The other [type of acceptance] is mere acceptance for the sake of argument, without implying that one personally believes the proposition, in the sense implying that one is willing, or obliged to justify its acceptance [with evidence], when challenged by a critical questioner.”
This second “acceptance” (for the mere “sake of argument”) is apparently unsupported by “personal belief” or the obligation to produce evidence to prove the “argument”. “Belief” is only hearsay rather than first-hand knowledge. An argument without “personal belief” would not even be supported by 3rd party witnesses. Without “personal belief,” there would presumably be no prima facie evidence let alone probable cause. (Could a “notice” sometimes be such an argument?)
Given that many governmental affidavits begin with “on information and belief” (hearsay), the gov-co may have an obligation to prove their “propositions,” but they implicitly admit by their “information and belief” affidavit that they have no direct, persona knowledge of the propositions (facts or law alleged?) in their affidavits. Insofar as they act “on information and belief” at least part of their suit is unsupported by actual evidence.
Insofar as an argument’s propositions can be challenged by a “critical questioner,” I’m reminded of the elements common to “arguments” and “notices”. Arguments must address “critical questioners”. Notices create the recipient’s “right of inquiry” (right to ask questions).
Again, I’m left to wonder if a “notice” is essentially an argument.
What evidence does a notice provide? Any? I don’t recall ever seeing a notice that included evidence. A notice will advance propositions and premises like “you are required to file,” or “you owe this amount”—but virtually never offer any evidence in support of those propositions/premises. This suggests the following question might be appropriate as a possible response (under right of inquiry) to a notice:
Q. Do you have any evidence that can be entered under oath to support the veracity of each of the propositions in your notice?
What evidence is admissible in court without some living man or woman to swear to the truthfulness and materiality of that evidence? So far as I know, none.
So, when the IRS claims you owe, say, $5,000—who is prepared to swear in court to the veracity of that debt? Who, in the IRS, has direct, personal knowledge of that alleged debt? If no one has direct personal knowledge, they would seem to have no evidence. If there were no evidence, then the primary purpose for an administrative hearing or tax court would be to hear mere arguments as to whether a particular person did or did not owe taxes.
How many “taxpayers” have demanded “show me the law that makes me liable”? Has the IRS ever shown that law? Maybe there is no law. Maybe there’s only a set of propositions laying the foundation for an argument.
Consistent with Dr. Walton’s description of argument, most notices could also be described as expressions of mere “beliefs” (hearsay, which is normally inadmissible as evidence). In other instances, some notices might contain references to business records which appeared to be evidence. But, so far as I know, without sworn supporting testimony, business records are, themselves, nothing but hearsay and technically inadmissible. After all, who entered the data that comprised the business record? The original data entry clerk may be unknown or no longer employed by the business maintaining the record. More, there could be a dozen different clerks that had entered data into the business records/files over the years. If you can find the one clerk who entered all the data into a business record, can that clerk testify to the accuracy of the data? Can the clerk even recall the specific data entry? And then, who validated that data? Who is prepared to swear under oath that he has first-hand knowledge that the data in a particular business record is true, complete and correct?
I’ll bet the answer is Virtually No One.
This suggests that most business records are essentially only matters of belief—propositions and arguments of sorts, but not facts that can be readily testified to in a court of law.
If so, then our entire business-based economy would unable to easily defend itself or prove it’s values if called to do so in a court of law. This might explain why the courts “disfavor” evidentiary hearings and prefer argument hearings. For businesses (especially big businesses), producing verifiable, admissible evidence may be extremely difficult but producing mere argument should be a snap.
Is a notice merely a list of some of propositions essential to an argument? If a “notice” is not even sworn “on information and belief,” does that imply that it is merely “for the sake of argument” and without the obligation of proof or producing evidence?
If a modern “notice” were nothing more than an “argument” without an obligation of producing proof or evidence, then there would be no “burden of proof” on the person initiating such argument/notice. The notice, by itself, might become the facts and law of the case. In fact, that’s pretty much what happens with traffic tickets. The only question would be whether the person for whom the notice was intended had actually “received” the notice. Once the recipient was shown to have “received” the notice without asking questions, the argument might be deemed won by the sender.
If notice were merely an argument, then the burden of proof would be shifted from the person who initiates the argument/notice to the person who “accepts” that argument/notice. According to Dr. Walton’s article, the recipient (defendant) would have to produce “overwhelming evidence against” the plaintiff’s propositions/beliefs (as supported by a “small” amount of evidence) to prevent the “hearer” (judge?) from accepting the propositions/beliefs presented by the “plaintiff” as true.
Damn. This sounds just like courts of equity and implied trust relationships. If you are ensnared as a defendant in the alleged web of an implied trust relationship, what evidence can actually exist that the trust relationship even exists, let alone that you voluntarily agreed to act as a fiduciary in that implied trust relationship? Given that an implied trust relationship is unsupported by tangible evidence (like a trust indenture or the defendant’s express, voluntary agreement to act as fiduciary for the plaintiff), what can support the plaintiff’s allegations besides argument?
Judging from Dr. Walton’s text, if a plaintiff produced just a “small weight of evidence” in support of (not to “prove”; merely to “support”) his argument that an implied trust relationship exists between the plaintiff-beneficiary and the defendant-fiduciary, the defendant will have to produce “overwhelming evidence” to disprove that implied trust relationship. More, the plaintiff would apparently have to produce the “small weight of evidence” only if the defendant expressly challenges the existence of the implied trust relationship and/or his role as fiduciary therein. If the defendant failed to expressly challenge the plaintiff’s fundamental propositions/premises, the plaintiff’s argument (case) could theoretically prevail without the support of any evidence whatsoever.
Clearly, if you enter into such argument, the burden of proof would be on a defendant rather than a plaintiff. In argument, the defendant is guilty until proven innocent—and proven innocent “beyond a reasonable doubt”.
How do we enter an “argument”? Perhaps by giving an “answer” or better yet, a “denial”. This notion exactly parallels some of my previous conjecture concerning notice. I.e., if—in response to receiving a notice—you do nothing, you’ll be deemed to have received “sufficient” notice and (under procedural due process) be moved on to the “opportunity to be heard”—the hearing where the “impartial judge” will find you guilty about 95% of the time. On the other hand, if you respond positively to the notice by making any statement whatsoever (i.e., making an ANSWER or DENIAL) you will be deemed to have had “sufficient notice” and, again, be compelled to go to the “hearing” where the “hearer” (“impartial judge”) will find you guilty 95% of the time.
So far, I can see only one defense to notice and procedural due process: ask questions in response to the original notice.
Can the modern term “notice” be understood to mean “Notice of Argument” or “Offer to Argue”? Is the notice and Invitation to Argue? If you accept that “invitation/offer/notice,” have you “contracted” to be bound by the rules of argument?
Insofar as “notice” and “argument” are similar or perhaps almost synonymous, the way out of both may be to ask questions:
Q. Does your notice constitute evidence of the existence of a “controversy” [as found at Article 3.2.1 of The Constitution of the United States or perhaps “issue” or something other than a mere argument that would absolutely get me into a court of LAW or at least a court of The State.] between you and I? [I suspect that an “argument” may differ fundamentally from a “controversy”. I suspect that an “argument” might be settled by an administrative tribunal, while a “controversy” must be settled by a judicial court. If the gov-co admits “controversy” we can claim right to a judicial court. If they deny “controversy,” I might not be obligated to appear for a mere “argument”.]
Q.: Do you understand that Black’s Law Dictionary (3rd Edition) defines the word “Hearing” in part as “The hearing of the arguments of the counsel for the parties upon the pleadings . . . .”?
Q.: Do you intend this matter to be settled at law, in equity or by administrative process?
Q: Is your notice intended to alert me to the existence of a purported argument between you and I?
Q: Do you understand that I have not yet consented to enter into an argument with you in relationship to the matters referenced in your Notice to “ALFRED ADASK” dated April 1st, A.D. 2008?
Q: Does your notice constitute an invitation to me to enter into an argument?
Q. If I consent to enter into the process of argument with you, would the person deciding this argument reach his decision based on mere beliefs?
Q. Do you have direct, verifiable, personal knowledge of the truth of all of the propositions that have been advanced in support of your argument?
Q. Does anyone have direct, verifiable, personal knowledge of the truth of all of the propositions that have been advanced in support of your argument?
Q. Do you have direct, verifiable, personal knowledge of the truth of all of the beliefs that have been advanced in support of your argument?
Q. Do you understand that Black’s Law Dictionary, 3rd Ed., defines the word “belief” as merely a form of hearsay wherein information is provided by a third party?
Q. If I consent to enter into the process of argument with you, would admissible evidence be required to be entered into the record of this process before the person deciding this argument could reach his decision?
Q. If I consent to enter into the process of argument with you, would there be a burden of proof imposed on either side?
Q. If I consent to enter into the process of argument with you, who would bear the primary burden of proof? You ___ or Me ___?
Q. If I consent to enter into the process of argument with you, would you have to prove your case “beyond a reasonable doubt”?
Q. If I consent to enter into the process of argument with you, would you have to prove your case “by a preponderance of the evidence”?
Q. If I consent to enter into the process of argument with you, would you presume that I had to have waived my right to substantive due process?
Q. If I consent to enter into the process of argument with you, do you know if the purported “judge” will presume that I have waived my right to substantive due process?
I’m exploring the previous questions not for the purpose of “gumming up the works” with endless stream of questions (which might still be a valid and effective strategy) but to explore the various manifestations of questions that might flow from “argument”. By exploring all these questions, I hope to sharpen my own understanding of the possible implications of “argument”.
Ideally, I’d like to boil these down to just a handful of questions that were so “tight” that they’d intimidate the plaintiff into dropping his “argument”.
But, in general, the previous questions focus on the imposition of the “burden of proof” on the defendant rather than the plaintiff. Insofar as the burden is shifted onto the defendant, the defendant is probably denied “substantive due process” or “due course of law” and given only “procedural [argument??] due process”. More, when the burden of proof is on the defendant, we might have evidence of an INQUISITION rather than a trial at law. These possibilities can be explored by questions. If the questions are so bizarre as to be irrelevant, fine. If not—they should at least inhibit the other side.
If argument is based primarily on beliefs, propositions and hearsay (rather than evidence), then the opponent’s “beliefs” must be directly attacked as false on the one hand. But such attack may not succeed since only a “small weight of evidence” in support of those beliefs may be sufficient to still win the plaintiff’s “argument”.
But the fundamental and larger question is this:
Insofar as argument is based on belief (premises) rather than verifiable evidence, and shifts the “burden of disproof” onto the defendant, what process obligates or even presumes that a defendant has consented to participate in an “argument” rather than a “controversy”? By what process, conduct or capacity is a man presumed to have waived his right to be tried in a controversy by a judicial court and agreed (or found obligated) to proceed under the disability of “argument” and the defendant’s correlative “burden of disproof”?
I don’t yet have answers to the previous questions. But I will. Like any decent bloodhound, my prey’s scent is in the wind and I’m howling happily off after it.
I’d bet that (assuming my hypothesis concerning argument is roughly correct) the only way to ensnare a defendant in the argument process is by means of his consent. That “consent” (actually assent) would be implied from 1) the defendant’s failure to expressly object; 2) the defendant’s voluntary appearance at court; 3) the defendant’s express denial of the plaintiff’s allegations; etc.
I am increasingly suspicious that the legal system has evolved into a pro-plaintiff process for resolving arguments rather than a pro-defendant process for resolving controversies. If so, that evolution has been achieved by some subtle deception rather than public knowledge and actual agreement. What are the means by which they induce us to enter into conduct sufficient for them to presume that we have voluntarily consented to subject ourselves to the process of argument rather than controversy?
How do I challenge those means? How do identify (and then stop) such conduct or possible resulting presumptions?
By what means and language can I expressly declare that I do not consent to enter into the process of argument?
Incidentally, Black’s 7th offers almost a full page to provide several definitions of the word “case”. However, definition #4 is “An argument”. I won’t say that all “cases” are “arguments,” but clearly some “cases” could be.
For defendant to prevail in argument, it appears (so far) that he must have “overwhelming evidence against” each of the plaintiff’s “beliefs”/“propositions”.
If I were seeking to defeat one man’s beliefs, where could I find “overwhelming evidence” that those beliefs were false? Bible? Maxims of Law?
If the plaintiff has only secular beliefs to support his argument, I could probably smash them with my own religious beliefs as supported by my Bible—especially if my “beliefs” are verified (sworn) while the gov-co can only provide unverified statements of “belief”. I “believe” that the Bible could provide the “overwhelming evidence” required to defeat any entity’s secular beliefs—or at least render me exempt from liability to argument based on such secular beliefs.
Maybe that’s the door out of argument. If a plaintiff or prosecutor’s case were in argument and based on beliefs, if his beliefs contradicted my own religious beliefs, any attempt to subject me to his beliefs might be challenged as a violation of my freedom of religion and/or an attempt by gov-co to establish a “state” religion.
I can’t yet prove it or even articulate the insight more clearly, but I have a very strong hunch that the way to avoid being subjected to gov-co’s system of beliefs is by asserting under oath your own contrary system of religious beliefs. This defense would not be simply based on my set of beliefs (propositions) being different from theirs, but rather that my and their sets of beliefs are mutually exclusive and anathema to each other. I.e, my defense might be that I don’t merely deny my adversary’s system of beliefs, but rather that I am prevented by my Protestant faith from even considering his beliefs/argument as potentially valid.
I’ve already been sued for $25,000 per day by the Texas Attorney General in a case where gov-co argued that I was a mere “animal”. I refuted their argument with my own sworn affidavits of spiritual evidence (Genesis 1:26-28 and the “Declaration of Independence”) which declare 1) that I am a man made in our Father YHWH’s image and given dominion over the animals; and 2) that I am endowed by my Creator with certain unalienable Rights. After six years of investigation and expending roughly $500,000, gov-co dropped the case.
In the end, gov-co cannot argue that I’m anything less than a man. They may “believe” that by virtue of my SSN or DL or bank account, credit card or use of legal tender that I have “accepted” the status of one who is disabled and less than a “man,” but if I respond to each of their propositions/premises with a verified (sworn) evidence that declares myself to be a “man made in God’s image and endowed by my Creator with certain unalienable Rights,” can their belief system successfully confront or overcome my own? I don’t think so.
In the final analysis, it appears to me that an argument is ultimately a kind of private wager to which both sides agree to be bound. You argue your case (propositions); I argue against your case (propositions); we agree to let the “honorable judge Smith” decide who wins our subjective argument.
Overwhelming evidence may be required to prove a negative!
If I’m right that an argument requires a preliminary (and probably private) agreement to argue and be bound by the decision of the “hearer” of the argument, then there are some “arguments” that, as a man made in our Father YHWH’s image and endowed by my Creator with certain unalienable Rights, I am precluded from entering into. For example, suppose gov-co wants to argue with me based on the proposition that I’m an animal rather than a man (as seen in gov-co’s drug laws), I can’t possibly agree to that proposition without violating my faith in the God of the Bible and my standing as a man under the “Declaration of Independence”. These two spiritual documents should be sufficient authority to either exempt me from such arguments or to shatter the propositions on which such argument is based.
Similarly, I’ve heard that Maxims of Law can send the gov-co packing. Insofar as that’s true, I’ll bet that a proper introduction of my “Maxims of Law” can defeat your secular “beliefs” almost any day.
Q. When your notice alleges that I owe the IRS $10,000, is that allegation deemed to be a fact you can support with evidence and personal knowledge?
Q. When your notice alleges that I owe the IRS $10,000, is that allegation deemed to be a fact that you can prove with factual evidence that’s admissible in a court of law or is that allegation an express of your mere belief?
“The second type of acceptance [“for the sake of argument”] is hypothetical, in that the proposition is being accepted as an assumption or hypothesis, in order to see where it leads, or to carry the argument further along. But this type of provisional acceptance is different from the type of commitment to a proposition that implies that one is willing or obliged to justify it if challenged.”
Unless a proposition is challenged, there is no need for evidence to “justify” a proposition advanced “for the sake of argument”.
What kind of act would manifest a “commitment” to a “proposition” that would demonstrate one’s willingness or obligation to justify (prove?) that “proposition”? An affidavit? If they send you a notice with affidavit, does that manifest their “commitment” to justfy/prove their propositions?
On the other hand, if they send you an unsworn (or even unsigned) notice, are they merely advising you of some “propositions”/ “beliefs” which they offer as “suggestions” but have no “commitment” to prove? Is an unsigned or unverified notice a proposition advanced for the mere “sake of argument” and thus without need for supporting evidence?
Q. Do you have a commitment to justify and/or prove the propositions and/or beliefs you’ve presented in your Notice?
“The key difference between these two types of acceptance lies in the requirement of burden of proof. Assertion has a burden of proof [by admissible facts introduced into evidence?], while assumption does not.”
Questions for gov-co:
Q. Do you assert that I owe $5,000?
Q. Do you assume that I owe $5,000?
“However, there is a third type of speech act mid way between the two called presumption, that has only a negative or indirect burden of proof. If I ask you to presume that a proposition, A, is true; it is not necessary for me to meet the burden of proving A if you question the acceptance of A. But if, then, or at any later point in the conversation, you (the hearer) come up with good evidence against A, or reason [argument] not to accept A, then I (the speaker) have to either agree to give up A as a presumption, or fulfill the burden of successfully countering your evidence against A. A presumption then, is half way between an assertion and an assumption.”
Perhaps so. But the “burden of proof” is always on the party disputing the presumption. The presumption is “presumed” to be true without evidence—unless the opposing party can first produce evidence to the contrary. The burden of proof is not on the person who makes the presumption, but on the person who denies it. That’s exactly contrary to the fundamental common law notion that the plaintiff has the burden of proof and a criminal defendant has a correlative right to offer no evidence of his innocence. Insofar as presumptions apply in criminal (or more likely penal matters), the defendant is essentially denied the presumption of innocence.
Thus, the presumptions that are relied on by the current system to achieve convictions and findings of guilt, are all ultimately in contradiction to the fundamental presumption of innocence that at least attaches to those charged with a crime and probably attaches to those charged penally and/or civilly.
This suggests that one of the most vulnerable “chinks” in the system’s defenses may be their reliance on presumptions that deny the great and primary presumption of innocence. This might even explain why they won’t allow most defendants to plead “Innocent” but only plead “Guilty,” “Not Guilty” or “No Contest”. If you plead “guilty,” you’re guilty. If you plead “not guilty” you’re probably guilty because you can’t prove a negative statement. If you plead “no contest,” you will once again be found “guilty” because you’ve agreed that you won’t even try to squirm off the hook. The three current pleas are the equivalent of playing Russian Roulette with a revolver that has six shells in the cylinder.
I suspect that there may be an inherent and politically powerful conflict between any presumption (and the propositions/beliefs that create presumptions) and the fundamental right to the presumption of innocence. If a defendant were able to assert his right to the presumption of innocence, any presumptions to the contrary might have to be discarded. In fact, if a defendant needed “overwhelming evidence against” a proposition/belief that was, or supported, a presumption against the defendant, the “presumption of innocence” might be just the “big gun” to achieve that result.
Therefore, some of my first questions in response their Notice/Argument might be:
Q. Do you understand that I am entitled to be presumed innocent of all alleged charges?
Q. Do you understand that I am entitled to plead “innocent” if asked to “plead” by the person who hears and decides this matter?
- Dr. Walton:
“This type of presumptive inference pattern often plays an important role in the argumentum ad ignorantiam. In the following case, a couple are talking about two thousand dollars of their savings and investment money. Should they put it into their savings account, or in some other fund?
“Case 3: Helen : It might just as well go into our savings account. Bob: Well, sure if you think so.
“Helen: I don’t see that there’s any reason why it shouldn’t.
“Helen argues from the negative premise, “I don’t see that there’s any reason why it shouldn’t,” by use of the argumentum ad ignorantiam to the positive conclusion (on balance of considerations), “It might just as well go into our savings account.” Bob makes no objection, so she goes ahead to justify her presumptive conclusion to go ahead with her proposed (provisional) course of action. Since there is no evidence, or good reason [argument] known [“known” on the record], to show that the proposition is false, the presumptively based conclusion that it is true can be drawn.”
The previous “argumentum ad ignorantiam” works precisely because Bob is “ignorant” and therefore unable to advance any evidence of argument to refute Helen’s “negative premise”. Both parties seemingly agree that they don’t know why they should not proceed to do as Helen suggests, so they do, in fact, so proceed.
“One often notices in the study of fallacies how plausible deniability is preserved by ambiguity [failure to precisely define], and other deceptive or confusing techniques that enable an arguer to keep the back door open, should one’s argument be directly confronted or challenged. A good example is the ad baculum argument, a form of sophistical technique that typically takes the form of an indirect speech act, e.g. “I would stop advocating that policy if I were you, because the last person who persisted in advocating it wound up on the bottom of the river in a cement coating.” When confronted with having made a threat, the ad baculum arguer replies: “That wasn’t a threat. I was only giving you some good advice—this is a dangerous city!” Here the use of the indirect speech act leaves the fallacy committer a back door open for plausible deniability. Threats tend to be highly contextual, and it has proved to be a legal problem to pin them down with evidence in specific cases.
“In this type of ad baculum case, the ambiguity or shift is pragmatic in nature. It is a shift from a warning to a threat. The speech act overtly, or on the surface of the dialogue exchange, has the form of a warning—a species of argument from consequences used to give advice.”
What is a Notice if not a “warning” (or even a “threat” in the “form” of a “warning”)? Thus, we see more evidence that a Notice can be construed as a “warning” which, in turn, fits the general description of a “Notice”. If A = B and B = C, then A = C. If warning = notice and warning = argument, then Notice = argument—exactly as I’d suspected.
“However, under the surface, in context, both speaker and hearer would recognize this utterance as a threat. The distinction between a speech act’s surface form and subsurface form can be illustrated by the classic case of an indirect speech act “Can you pass the salt?” On the surface a yes-no question, this speech- act, under the surface, functions as a request to pass the salt.”
More possible questions in response to a notice:
Q. Do you understand that a notice is a warning?
Q. Do you understand that a warning is a species of argument?
Q. Do you understand that if A = B, and B = C, that A = C?
Q. Does your notice constitute an argument?
Q. Does your notice constitute an ad baculum argument?
Q. Does your notice constitute a threat?
I’m about 99% certain that gov-co would never admit that their notices were threats. I’m about 85% certain that they wouldn’t even admit that their notices were arguments or invitations to argue. If I were right, asking those kinds of questions might put gov-co in a difficult position. If they must answer and can’t lie, they may prefer to drop a case than deal with such questions.
So if we expressly ask if their notices are threats and arguments and they expressly deny it, then they would seemingly have waived their chance to try us under circumstances where the burden of proof was on us, the defendants, to prove we were “not guilty” (a logical impossibility). If there is no argument (and perhaps no alternative presumptions), then there might not be any basis for avoiding the presumption of our innocence.
I.e., if you can make gov-co deny the existence of an argument, you might be able to make them admit you’re entitled to the presumption of innocence—perhaps even at a court of law. Once that happens, they’re screwed.
Strip ‘em of their argument, strip ‘em of their beliefs, reduce ‘em to the condition of persons who can only win their case based on a preponderance of the evidence (facts rather than beliefs) or even “beyond reasonable doubt” (ambiguity), and they may have a very difficult time securing a conviction.
“In other cases, of an even more common and pervasive type in the world of fallacies, a proposition is brought forward on the basis of reported say so [hearsay; belief]—for example, in the form of gossip or rumor—yet there is an implication that the speaker who brings it forward is using it to make an allegation. Ad hominem arguments often trade for their plausibility and effectiveness on this technique. The core of the technique lies in its leaving a mark—”Where there’s smoke there’s fire.”—while deflecting off any requirements of burden of proof. Again, the fallacy of “guilt by association” is a familiar example.
“One important technique of deflection of burden of proof, attribution to a secondary source [the “secondary source” may constitute hearsay], has the following general form as a speech act: I (the speaker) am bringing forward proposition A into the dialogue, and my basis is that someone else (i.e. someone other than the speaker) asserted that A is true. [Expert opinion!] The clever thing about this form of speech act is the ambiguity of `bringing forward.’ Is the speaker asserting that A is true, thus incurring a burden of proof to justify A if challenged? Or is the speaker merely reporting that someone else asserted A, in which case she (the speaker) has no burden of proof to support A if challenged? Is the speaker asserting A or merely reporting the assertion of A by someone he heard? On the latter interpretation, there is no burden of proof for the speaker.”
We know that you must accept the burden of proof for your “assertions”. But what is an allegation? Does an “allegation” equate to an “assertion” or are they two different species of “statements”? Is it possible that there’s no burden of proof for an “allegation”? Could some or even all allegations be mere “argument”?
“The technique of attribution to a secondary source [hearsay and/or expert opinion] is often combined with another clever technique that can be used to definitely remove the burden of proof. This takes the form of denial of personal commitment by the speaker with respect to a proposition, at the same time the assertion of that proposition is attributed to another speaker who was heard to have said it. This technique, which could be called attribution combined with denial of commitment, takes the following form of speech act: I (the speaker) heard someone else assert proposition A is true, but I am not personally committed to A.
“A stronger form of the same technique is to replace the second clause with a denial (a negative assertion) of the form, `I (`the speaker) deny that A is true.’ Such techniques of attribution are not fallacious or sophistical in themselves, but can be combined with other techniques to produce sophistical arguments.”
The words “fallacy” and “fallacious” keep appearing in this text and appear fundamental to defeating propositions, beliefs and arguments. We can probably stop any argument against us with a thorough grasp of “fallacy”. The words “fallacy” and “fallacious” need thorough study and comprehension.
If we are in an argument hearing, we should strive to effectively challenge all of the adversary’s propositions and arguments as “fallacious”.
“A perfect illustration of how the technique works was given (in an ironic form) by Andy Rooney on Sixty Minutes ( March 24, 1991). Rooney was commenting in reply to an allegation by Senator Alan Simpson that a CNN reporter was a “sympathizer” of Saddam Hussein, because the reporter had continued to report from Baghdad all during the Gulf War. Simpson subsequently apologized to the reporter, on the grounds that his allegation could not be proved. Rooney commented that, in the same spirit, he would like to apologize to Simpson.
“Case 4: Senator Simpson did go to Baghdad to see Hussein last April 13th and at that time, he comforted Hussein for things being written about him in our newspapers by saying that American reporters were “pampered and haughty.” That’s why I’ve been calling Senator Simpson “Saddam Hussein’s friend.” Well, now I feel sort of bad about it. I shouldn’t have done that. Senator Simpson says that The Wall Street Journal has suggested he’s a racist, too. I certainly wouldn’t suggest he’s a racist because I simply don’t know. I’ve heard rumors that, if he could, he’d repeal the 1st Amendment guaranteeing freedom of the press. I’ve heard rumors that he’s one of our dumbest senators. It would be unfair of me to repeat those rumors because I’m not sure they’re true. I’ve never even met him. Neither, can I prove that Senator Simpson is a friend of Saddam Hussein. It is not certain that they’re friends and, unless the facts prove otherwise, I apologize to him for having said they are friends. I hope you take this apology in the spirit in which it’s intended, Senator—unless you can prove otherwise.
“This ironic apology illustrates perfectly the use of the technique of deflection of burden of proof by passing on reports, allegations, or rumors attributed to a third party who is not named. The technique is to disavow that one is personally asserting the proposition in question—or even to state overtly that one personally does not accept this proposition as true—thus removing the requirement of burden of proof. Yet, at the same time, the proposition is brought forward as an allegation that has been made (by somebody else). So it has a tendency to stick.
“Part of this technique is use of innuendo or suggesting that a proposition may be true without explicitly claiming that it is true (in the sense requiring a burden of proof ), where the suggestion implicates the proposition as true to the hearer or audience. As case 4 above indicates, sometimes denial, or explicitly claiming the opposite of the designated proposition, is the method of suggesting by innuendo that the proposition is (or may be) true. A classic case is the story of the ship’s captain who had made many entries of the proposition, “The first mate was drunk today.” in the logbook. To get revenge, the first mate wrote in the logbook, “The captain was sober today.” The making of this statement as a single entry in the logbook implies by innuendo that the captain was normally not sober, i.e. drunk.”
The relationship of innuendo to implication brings to mind the implied charitable trust of “this state” and Implied trust relationships. Does gov-co routinely use some variety of “innuendo” to imply the existence of these relationships? Based on the presumed existence of unenforceable “implied” (unstated) trust relationships, the court can construe constructive trust relationships—which are enforceable. How does the court come to perceive or “get wind” of the unexpressed but “implied” trust relationships? Is innuendo the means by which court exercises its discretion to “recognize” an “implied” trust relationship?
If so, what is the mechanism to defeat innuendo?
“Innuendo typically works by exploiting normal expectations and routines as the basis of a warrant licensing an inference from one proposition to another. The warrant, which is often non explicit, associates two events, and postulates one as a premise. The principle of how it works is summed up in the expression, “Where there’s smoke there’s fire.” That is, the respondent is meant to draw the implicature that if smoke is cited by a proponent in a given case, then by the warrant [normal expectations and routines as a statement of PROBABILITY—but not absolute fact.] above, so must fire (likely) be present. If somebody made the allegation that smoke is present, then it may be true also that fire is present. As shown in section one above, this principle is based on a type of argumentation associated with the traditional argumentum ad ignorantiam. If there is no evidence that fire is not present, then given smoke, it is best to call the fire department.”
OK—this process of “innuendo” is based on 1) probabilities and even 2) degrees of risk.
In terms of probability, the idea behind innuendo (If there’s smoke there MAY be fire), is that even if we don’t see one event (fire) we can presume that event may be taking place based on other observations of characteristics (smoke) that are usually associated with the first event.
But, by definition, the second event (smoke) is not the first event (fire). The second event is only evidence that might imply the existence of the first event. Smoke is primarily an annoyance—perhaps even a “warning”/notice/argument—but fire is a killer. Smoke as warning/notice/argument should merely put us on inquiry. If we smell smoke, we “inquire”—we investigate—as to whether there is actually a fire.
Thus, innuendo could be attacked for failure to investigate. As a defendant in a court room, I might suddenly scream that I smell smoke, the building must be on fire, and we must all run for our lives from the court house. Do you suppose that the judge, prosecutor and jury will all instantly flee from the building based on my claim to smell smoke? Probably not. What they’ll each probably do is consciously sniff the air to see if they, too, smell smoke. Then each will ask the person next to them “Do you smell smoke? I don’t smell smoke—do you?” They will investigate to learn if others besides myself also smell smoke. Why? Because smelling smoke is a subjective process. Everyone has occasionally “smelled smoke” when no one else did and even when there was no smoke.
In terms of degree of risk, if you smell smoke while you’re swimming the middle of lake, that’s not much cause for alarm because 1) there’s nothing you can do; and 2) you are not personally threatened with being burned. On the other hand, if you smell faint smoke while you’re lying in bed at 3 AM, that is cause for alarm since you could die in a house fire and by acting promptly you might be able to find and extinguish the unseen fire. You might also smell lots of smoke in the afternoon on July 4th and pay no attention whatsoever since everyone is probably grilling hamburgers and hotdogs on a charcoal grill. Different degrees of risk implicate different responses to the same proposition (“smoke”). Innuendo might be powerful at 3 AM, less powerful in the middle of a lake, and completely ignored on the 4th of July.
Again, if no one bother to investigate the first “event”/proposition/notice/warning/“smoke,” then we can infer that no one is taking that first event very seriously. If the people who allege the “smoke” don’t investigate, they discredit their own allegation and argument.
If an innuendo is a notice/warning/argument/proposition/belief that raising the specter of danger, then anyone hearing the innuendo who failed to investigate would fail to perform his “due diligence” and be guilty of imprudent behavior.
In my colloidal silver case, the prosecution alleged that Ben & I were members of the Republic of Texas movement and thus implied that we posed a danger to the judge, lawyers, court house and community. That was innuendo that was 1) false; and 2) intended to discredit us.
But if the prosecution really believed the ROT was dangerous, did the prosecutor and judge move their wives and families into some out-of-state witness protection program? No. Did they warn jurors that their spouses, parent and children might be attacked by the dreaded ROT? No. Thus, if the prosecutor that alleged ROT wouldn’t protect himself and his family from the vengeance of the “dangerous” ROT, how serious could he be in believing we posed any threat of violence?
“One fairly straightforward method of deflecting burden of proof is the use of anonymous sources. According to (Levine, 1994, p. A21), reporters and writers used to follow the practice of naming the persons they quoted as sources, but this accepted practice began to change in the late fifties. As an example of the new practice, Levine (p. A321) cites the case of a controversial book, On the Take: Crime, Corruption and Greed in the Mulroney Years, in which the author, Stevie Cameron, alleges many details of corruption and questionable political deal making attributed to the former Prime Minister of Canada, Brian Mulroney.
“Case 5: Ms. Cameron offers no documented evidence to back up her accusation, saying only that her information comes from some “well-placed sources in Montreal.” In fact, a lot of the information in her book is from anonymous sources: “well-placed businessmen,” “a knowledgeable source” and “intimate friends.” She claims that many of these people are members of the Conservative Party: senators, fund-raisers, campaign managers. “Most of them cannot be named,” she writes in the book’s preface, “but they know I am grateful.” From a journalistic perspective, the allegation that a fund was set up is clearly more significant than the fact that the sources of the accusation remain nameless. But why have Ms. Cameron’s sources refused to identify themselves? Is Brian Mulroney a threat to them? If so, how reliable are they? What biases do they hold toward him? What axes do they have to grind? And what deals, if any, did Ms. Cameron have to make with them to use their comments but not their names?
“The critical problem with the book, according to Levine, is that readers do not get the answers to the above questions, and can only guess at them. Thus, the only evidence available to the reader, to judge whether the allegations are supported or not, is the credibility of the journalist. Yet we know all too well from the rising practices of tabloid journalism, under pressure to compete by getting the most exciting and newsworthy stories, journalists are increasingly printing stories that come from questionable sources, who are sometimes even paid for volunteering information.
. . . .
“In the following case (Stein, 1992), eight unidentified women accused U.S. Senator Brock Adams of sexual harassment, causing him to drop his re-election campaign. The story appeared in the Seattle Times and the Seattle Post-Intelligences, as summarized by (Stein, 1992, p. 10):
“Case 6: According to the Times, the eight women spoke out on condition that their names not be published. Seven, it was reported, signed statements acknowledging they could be required to testify in court should Adams sue the Times. Their allegations range from “aggressive sexual harassment to rape and include stories of Adams plying women with a mixture of drugs and alcohol,” said the story by staff reporters Susan Gilmore, Eric Nalder and Eric Pryne, and Times city editor David Boardman. “Obviously, it would have been better to have published the names of the women but this was the only chance we had.” Fancher told E & P, “We’ve been chasing this story for three-and-a-half years in an effort to be responsive to the people.”
According to Stein (p. 10), Adams is said to have replied: “This is the saddest day of my life. I have never harmed anyone.” By going ahead with the story, based on anonymous sources only, the newspapers, in effect, reversed the burden of proof. Adams would have to go to court if he wished to argue that he was not guilty of the allegations.”
Virtually all of these arguments reverse the burden of proof. In our modern court system, it surely seems that you are guilty until proven innocent. Today, the burden of proof seems almost always on the defendant rather than the plaintiff/prosecutor. Insofar as that’s true, it appears that our courts now prefer to function based on argument rather than evidence.
But, again, if the object of sophisticated arguments is the reverse the burden of proof, then the primary defense against such arguments will be found in our right to the presumption of innocence (at least in criminal trials) and our ability (as defendants) to demand that right. If we can make ‘em admit that we’re entitled to the presumption of innocence or that the burden of proof is initially and primarily on the plaintiff/prosecutor, we can create evidence to shield us against their fallacious propositions and arguments without proof.
We need to study the “burden of proof” and the “presumption of innocence”.
Q. Is the burden of proof in this matter 1) beyond a reasonable doubt ___; 2) preponderance of the evidence ___; 3) other ___?
Q. Is the burden of proof on the prosecutor/plaintiff in this matter?
Q. Is the burden of proof on the defendant in this matter?
“One of the worst known abuses of anonymous sources reporting was the Janet Cooke case where reporter Cooke of the Washington Post won a Pulitzer Prize for a moving story about a child drug addict. When it was found out that the child did not exist, Cooke resigned from the Post and gave up the prize. Despite cases like this, and the rising tide of tabloid journalism, Blankenburg (1992, p. 17) argues that anonymous journalism is “integral to news gathering in a variety of settings and vital in some circumstances.” The description of the techniques of anonymous journalism given in (Blankenburg, 1992, pp. 11-12) indicates how common this practice currently is:
“The extent of anonymous attribution is substantial. In Time and Newsweek, about 80 percent of international stories were found to contain anonymous attribution. Another study found anonymous quotes in 33 percent of stories in a variety of newspapers.
“Anonymous attribution takes many shapes. Consider the possible combinations of the nouns “source,” “aide,” “observer,” “official” and “expert” with the modifiers “usually reliable,” “well-known,” “diplomatic” and “knowledgeable.” Sometimes identity is muffled by the passive voice: “It was learned today that . . . .”
“As Blankenburg puts it (p. 17), “Prohibitions fail because anonymity works.” This remark indicates how deeply entrenched anonymous attribution currently is in the media.”
“The use of anonymous sources is very dangerous, if conjoined with the tactic of innuendo exemplified in case 4. A proponent who wants to use innuendo against a respondent can report to the media (or anyone who will spread the rumor) that he has heard that proposition A is true, according to an anonymous source, where proposition A states that the respondent is a bad person (or says something unfavorable about the respondent). The proponent can even state that he himself does not believe that A is true, and if questioned would deny that A is true. But if the name of the accuser is not available to the third-party target audience of the innuendo, they can neither verify nor refute the claim made by the accuser that A is justified as an assertion. In effect the proponent has a license to spread gossip.”
We see something similar to a journalists use of “anonymous sources” in many (probably most) “governmental” affidavits that are “sworn to” by some governmental employee “based on information and belief”.
“Information and belief” are not direct personal knowledge. “Information and belief” are personal beliefs (propositions for arguments) based on reports from third parties (hearsay). So, when a police “officer,” bureaucrat or prosecutor makes some “affidavit” based on “information and belief,” they’re not making (swearing to) an affidavit of FACTS which they have personally observed. Instead, they are seemingly “testifying” to hearsay and personal beliefs rather than FACTS.
People are paying fines, losing property, going to prison—and sometimes even being executed—based on governmental employees’ “information and belief”—which is typically nothing more than an expression of personal belief, of propositions (not facts) on which arguments (rather than evidence) are based. So don’t suppose that mastering the concept of argument is esoteric or somehow relevant as only an intellectual exercise. Today, our courts turn on argument. Our political system turns on argument. Those who master argument can at least hope to cope with the current system. Those who are ignorant or argument can expect to be railroaded almost every time they confront the alleged “authorities”.
When charged with a crime, we have the right to face our “accusers”. I’ll bet part of the reason most “criminal matters” are now charged as “penal” (civil) offenses is to evade the defendant’s right to a presumption of innocence and also to “face his accusers”.
Q. In the process of determining the validity of your claim against me, do you agree that will I have the right to face every person who make accusations against me? (The object of this question is to deprive the plaintiff of any presumed right to rely anonymous sources or innuendo arguments.)
I have a hunch that an attorney’s reliance on innuendo or other devices to evade the burden of proof might be construed as “barratry”. Perhaps a question could be drafted that used the language of barratry (or perhaps some violation of the attorney’s code of ethics) that could be used in conjunction with “innuendo” to indicate that any attorney who relied on innuendo would violate his code of ethics or the law on barratry:
Q. Do you understand that shifting the burden of proof from you to me would constitute [insert definition of “barratry” or some violation of the code of ethics]?
“IMPLICATURE AND INNUENDO
“Another method of evading the burden of proof is to have your respondent draw an unstated presumptive conclusion by Gricean implicature. In Gricean implicature (Grice, 1975, p. 67), participants in a conversational exchange (talk exchange) [pre-trial hearing?] recognize a common purpose or at least a “mutually accepted direction” which enables one participant to draw out an unstated or non explicitly stated conclusion from something said by the other. For example, suppose Professor Black is writing a letter of reference for a student, White, who has applied for an opening in a graduate school, and has asked Black to write a letter on his behalf. Black’s whole letter, in its entirety, reads as follows:
“Case 7:White is always punctual for class, is very attentive as a listener, and has pleasant manners. His spelling is very good.
“Here, Black has not said anything negative, at least explicitly. But it is what he does not say that is significant. Normally, in a letter of reference of this sort, one would expect praise of the student’s outstanding qualities of originality, excellent scholarship, promise for a bright future in the field, and so forth. Since Black mentions none of this, the reader wonders why, and draws the implicature that White is not a good candidate. The implicature is drawn because both parties (the reader and the writer) are aware of the purpose and normal expectations of the kind of talk exchange represented by a letter of recommendation for graduate school.”
I have a hunch that “implicature” may describe the mechanism whereby it’s presumed that the defendant is entering the court with the same “purposes” and “expectations” as the prosecution. If both sides have the same purposes and/or expectations, then various unstated but implied propositions can be advanced. I.e., “implicature” appears to be based on an unstated but presumed agreement between the parties (such as administering a particular trust relationship or perhaps agreeing that “STATE OF TEXAS” actually exists). But if the two sides have expressly different purposes, there may not be any implied agreement as to purpose or expectation and gov-co may therefore be precluded from advancing any implied propositions of “implicature”.
Q. What is your purpose of your proposed pre-trial hearing?
Q. What are your expectations for your proposed pre-trial hearing?
Q. Do you understand that my purposes for attending the proposed pre-trial hearing are to discover: 1) if you agree that I am a man made in our Father YHWH’s image and endowed by my Creator with certain unalienable Rights; 2) if you agree that all of my conduct in relation to this matter was and is intentional; 3) if you understand that all of my conduct in relation to this matter took place on the soil within the boundaries of The State of Texas—a member-State of the perpetual Union styled “The United States of America”; 4) if you understand that I am a beneficiary of the Constitution of The State of Texas; 5) if you understand that I am acting AT ARM’S LENGTH at all times and places relative to the matter at hand; 6) etc. etc.. [My object in declaring my various purposes for attending a meeting, entering into discussion or even argument is to establish that my purposes (and “expectations”) are different from theirs. Insofar as we have different purposes/expectations, we cannot engage in “implicature”.]
Q. Do you understand that the entire process to resolve this matter will take place under the authority of The Constitution of The States of Texas?
“The use of implicature in case 7 is the basis of an innuendo. Because of normal conversational expectations about how a letter of reference is used as a type of communication, the reader draws a conclusion on the basis of what has not been stated in the letter. Again it is based on the principle of inference exemplified by the expression, “Where there’s smoke, there’s fire.” Since no mention is made by the writer of the important characteristics of a good candidate, the reader is suggested to operate on the presumption that the person cited in the letter may not be a good candidate. In making selections for graduate school entrants, the reader is being cautioned to have reservations about this particular candidate.
“From our point of view here, the tricky thing about implicature is that in many cases, like the one above, the conclusion of the inference has not been stated explicitly by the proponent. Here if he is questioned later, he has left open a route for plausible deniability. And it is difficult for anyone to prove, beyond reasonable doubt, or very definitely, that he has made a negative evaluation, or said—something negative about White.
“Apparently this sort of case has become a subject of controversy in recent years because there have been lawsuits by students to the effect that referees have prejudiced their chances by making remarks taken to be unfair or unwarranted by the student, once he has seen the letter. Thus if a referee finds herself in the position of having to write something, she may opt for a defensive strategy of avoiding saying anything that could be overtly construed as negative.
“The interesting thing about this type of case, from our point of view, is that it functions as a convenient device for evading burden of proof. It is possible to put forward a proposition without explicitly asserting it, in a talk exchange, by omitting to say it. Given the purpose and direction of the type of conversation, however, the respondent will read off the proposition as one the proponent is committed to, and means to advocate as something the respondent should accept (on the say so of the proponent) as well. But since the proposition in question has not been explicitly asserted by the proponent, he can later deny that he was committed to it, or that he was advocating it to the respondent. And there is no “black letter” textual evidence of assertion to back up any claim to the contrary.”
The previous text implies that one of a defendant’s objectives would be to find or create “black letter” textual evidence of the prosecutor’s/plaintiff’s assertions that were otherwise implied and prejudicial.
“The danger here is that implicature serves as the basis for innuendo. And innuendo has frequently been recognized in logic textbooks as either a fallacy or a source of sophistical argument. Damer (1980, p. 19) defines argument by innuendo as “directing one’s listeners to a particular, usually derogatory, conclusion, by a skillful choice of words, or careful arrangement of sentences, which implicitly suggest, but do not assert” a conclusion. Michalos (1970, p. 100), in a similar vein, defines the fallacy of creating doubts, as the spreading of false rumors designed to make people suspicious.”
I’m not sure what the “fallacy of creating doubts” is, but again, we see evidence that an effective allegation of “fallacy” may be enough to stop many determinations by the court or jury.
“Innuendo works as a device to shield off burden of proof by creating a presumption, by bringing forward an allegation based on no evidence but someone’s say so [“information and belief”], thus suggesting by implicature that since someone made the allegation there may be something in it (given that there is also no presently available evidence [facts] against it). Innuendo is not inherently fallacious but the dangers in it have been made clear above. The chief danger is the shielding off of the obligation to fulfill requirements of burden of proof by the devices cited above.”
Good point. Just because someone advances a conclusion based on innuendo (“information and belief” without evidence?) doesn’t mean that the conclusion is necessary false. Sometimes, there’s smoke but no fire—but sometimes there is.
Again, the fundamental issue is not simply the argument, but the fallacious conclusion. We have to be able to identify and prove as many fallacies as possible.
“The traditional concept of an argument centrally emphasized in both logic and speech communication is the kind of case where a speaker puts forward a set of premises to support a conclusion and (a) the speaker is committed to the conclusion, and to the premises, as propositions she accepts, and (b) the speaker has the goal of getting the respondent (audience) to accept the conclusion, by means of using the premises [not facts] as evidence.”
In other words, the object of argument is to substitute various premises for facts, and then argue that under these premises (like patriotism, duty to country, obligation to government, public safety, etc.) rather than facts in order to cause a certain conclusion (like finding someone guilty of an alleged offense) be adopted. The argument’s premises (beliefs) become a substitute for evidence (facts).
“In this central paradigm of what an argument is, the speaker is asserting the conclusion; and is offering the premises in fulfillment of the burden of backing up or justifying the conclusion (burden of proof).
“However, as we have seen, many of the subtle arguments associated with the traditional informal fallacies do not correspond to this central paradigm.
“Because these subtle arguments deviate from traditional argument does not, in itself, mean that these subtle arguments are fallacious. But seeing exactly how the deviations work has turned out to be very informative in helping us to understand how these fallacies involve deceptive tricks of persuasion that are commonly used in everyday argumentation.”
Deception can be a form of fraud. Deceptive arguments in a court could conceivably be construed as an attempt to “defraud the court”.
“Burden of proof is generally a reasonable requirement of an assertion made in a dialogue (conversation, talk exchange) where the purpose is to prove a proposition, or resolve a conflict of opinions by bringing evidence (or proof of some designated kind) to bear. However, when the argument does not take the form of an explicit assertion, but instead uses one or more of the techniques analyzed above, a deflecting shield to evade burden of proof is built in. It is a kind of anticipatory safeguard against possible critical questioning or demands for supporting evidence.
“Many problems remain to be resolved on the issue of whether innuendo is a distinct fallacy in its own right, and on the issue of whether the rumor that is the basis of the innuendo has to be false for a fallacy to be committed (in a given case). Our tentative assumption, based on the cases studied in this paper is that innuendo is not, in itself, fallacious. However, what we have seen is that several of the major fallacies depend for their plausibility as tactics of persuasion on innuendo, and are closely associated as fallacies with the use of techniques of innuendo to evade proper requirements of burden of proof.”
This has been a particularly long-winded and difficult article to both present and to understand. Nevertheless, my point is simple: We are beset by a judicial (and even political) system that is increasingly and even primarily based on argument rather than evidence. If you don’t understand the elements of argument, you won’t recognize when you are being railroaded by means of argument but without evidence.
On the other hand, if you begin to understand the elements of argument, you’ll be able to see and effectively challenge most of the system’s arguments. Once you can stop their arguments, they’ll have rely on evidence (facts) to which gov-co employees are often unable to testify. If they can’t introduce argument and they have no one to testify to any factual evidence, they may not be able to proceed against you.