Although most arguments seem emotional, classical argument is an element of logic. Logic is an element of philosophy. At bottom, arguments are (or should be) rational.
Who’d’ve guessed, hmm?
There are several varieties of argument. However, in it’s most basic form, argument consists of:
1) Major premise;
2) Minor premise; and,
The classical formula for argument is probably: If A = B, then C. In this example, “A” could be the Minor Premise, “B” could be the Major Premise, and “C” could be the Conclusion. IF the minor premise “A” is equal to the major premise “B,” then the conclusion “C” must be true. If minor premise “A” and major premise “B” are not equal, then the conclusion “C” must be false.
The “argument” takes place over whether minor premise “A” and major premise “B” are, in fact, equal.
If a major premise were, “all men are [created equal and] endowed by their Creator with certain unalienable Rights,” and a minor premise is “Alfred Adask is a man”, then the conclusion must be true that “Alfred Adask is endowed by his Creator with certain unalienable Rights.”
However, if either the major or minor premise is false, then the conclusion “C” must also be false.
Whenever we litigate, the plaintiff or prosecutor must prove his “argument” in order for the defendant to be found guilty. The defendant, on the other other hand, must defeat or disprove the plaintiff’s argument in order to be found not guilty.
For example, one legal argument might be as follows:
Major premise (the LAW): All taxpayers are required by law to pay income taxes.
Minor premise (the FACTS): John Doe is a taxpayer.
Conclusion: John Does is required by law to pay income taxes.
Doe ( the defendant) might challenge the prosecutor’s argument by arguing that the major premise (the law that “All taxpayer are required by law to pay income taxes”) is false in all cases because that law is unconstitutional. If that major premise is unconstitutional (not law), then Doe is not subject to that law/major-premise and doesn’t have to pay income taxes. If the major premise is totally defeated relative to all “taxpayers,” the prosecutor’s argument fails and Doe must be found Not Guilty.
Doe might also argue that although the major premise is constitutional, it does not apply in Doe’s particular case since there are legal exceptions to the major premise. For example, some “taxpayers” who make less than a certain level of income or who have other disabilities are exempted from paying income taxes–and Doe falls into one of those exceptions. If the major premise is defeated as it’s applied in this particular case, the prosecutor’s argument fails and Doe must be found Not Guilty.
Doe might also argue against the minor premise (the facts of the case) by alleging that Doe is not a “taxpayer,” or Doe has already paid all taxes legally due,etc. If Doe can prove that the facts (minor premises) of the case do not conform to the requirements set by the major premise (law), the prosecutor’s argument is false, the prosecutor’s proposed conclusion fails and Doe must be found Not Guilty.
My point is that, for Doe to be found Not Guilty, Doe must identify and defeat either the prosecutor’s (or plaintiff’s) major premise (law) and/or the minor premise (facts).
• It may be that, technically, legal experts would call the “facts” the major premise and the “law” the minor premise. I don’t know if that true. If true, that distinction doesn’t strike me as critical.
What’s critical is that in order to reach the conclusion a defendant is guilty of an offense, the prosecution must prove both of (at least) two premises (major and minor). On the other hand, in order to defeat the conclusion that the defendant is guilty, the defendant need defeat only one premise (major or minor).
• A trial can consist of one major argument (“Doe is guilty”) and a multiple inferior arguments concerning “facts” and details of law which lay the foundation for “proving” the ultimate major argument. Those inferior arguments often go to the issues of whether the defendant was or was not at a particular place at a particular time, whether the witness who claims that he saw the defendant commit the offense is a reliable witness, etc.
Most of these issues are usually referred to as “facts“–ultimate truths set in concrete like the earth is round or the sky is blue. But it’s vital to understand that most “facts” found in courtroom battles are essentially the conclusions of inferior arguments. These fact-conclusions are each based on at least one major and one minor premise. If a defendant can: 1) identify all of the premises that go into reaching one “fact” (conclusion); and 2) defeat just one of those underlying premises; then 3) any ultimate argument (“Doe is guilty”) that’s depends on the validity of that underlying fact/conclusion, will be defeated.
I’m reminded of the old aphorism that, “For lack of the nail, the shoe was lost. For lack of the shoe, the horse was lost. For lack of the horse, the king was lost–and for lack of the king, the battle was lost.” If a defendant can find and defeat a premise that’s buried deep in the logic of the prosecution’s case and which seems as irrelevant as a nail in horseshoe, and defeat that single, obscure premise–it may be enough to defeat the prosecution’s entire case/argument that “Doe is guilty”.
For example, in the earlier hypothetical, the minor premise (“Doe is a taxpayer”) is not a “fact” per se, that’s been decreed by God or Nature. That minor premise is, itself, only a proposed conclusion that’s based on an entirely separate argument that depends on the validity of at least two premises. The premises underlying that proposed conclusion (“Doe is a taxpayer”) can be tested–but only if the defendant chooses to do so.
If the prosecutor claims that “Doe is a taxpayer” and Doe fails to recognize and challenge that conclusion and its underlying premises, that conclusion will be accepted by the court and jury as a “fact”–even if that “fact” is untrue. A “fact” is not necessarily an eternal truth. It is a conclusion based on an argument that was accepted by the judge and/or jury.
But, there are undoubtedly several legal requirements (minor premises) specified in law to qualify as a “taxpayer” (conclusion). If the defendant can identify the major and minor premises that are required by law to prove the “fact”/conclusion that the defendant is a “taxpayer”–and if the defendant can disprove any of those major or minor premises, then the conclusion that “Doe is a taxpayer” fails. Once that minor conclusion fails, the minor premise (“Doe is a taxpayer”) in the major argument (Doe must pay income taxes) also fails as does the prosecutor’s major conclusion (“Doe must pay income taxes”).
Possible result? Doe goes free because: 1) he understood the concept of argument; 2) he was able to defeat some minor (and possibly obscure) premise underlying the argument that he’s a “taxpayer”; and 3) thereby defeats the minor premise (“Doe is a taxpayer) in the prosecution’s major argument that “Doe is guilty of not paying income taxes”. Once that minor premise is defeated, the prosecution’s argument and conclusion fails, and Doe should be found Not Guilty.
• But, what if Doe doesn’t understand “argument”?
What if Doe doesn’t recognize and understand that the minor premise (“Doe is a taxpayer”) in the prosecutor’s major conclusion (“Does must pay income taxes”) is, itself, merely the conclusion of another inferior argument or even a chain of inferior arguments? Then, Doe will not take issue with the argument (minor premise) that he is a “taxpayer”.
What happens if Doe fails to take issue with the minor premise that he’s a “taxpayer” (which is merely a conclusion from an inferior but unstated argument)? It will be presumed by the courts that Doe has admitted to the truth of every express or implied “fact”/conclusion that he didn’t expressly challenge. If Doe doesn’t effectively refute the presumption that he’s a taxpayer, Doe is going to have a very unpleasant courtroom experience.
• As I begin to consider the nature and application of argument in court, I begin to see that virtually every courtroom controversy is a tapestry of arguments where the major and minor premises are only the conclusions of inferior arguments, which are, in turn, often the conclusions of even more inferior arguments. I wouldn’t be surprised if, for every fundamental and express major argument seen in court (“Doe is guilty”), there are scores or even hundreds of inferior arguments whose conclusions provide the premises for the primary argument heard in court (“Doe is guilty”).
Virtually all of these inferior arguments are unstated and merely presumed by the court (or even jury) to be true. But if an intelligent defendant could accurately perceive arguments and properly dissect and challenge their premises, he could turn the process of convicting him into a circus with no end.
After all, the unstated conclusions and arguments are ultimately based on definitions which are themselves mere conclusions of previous arguments. We’ve had 9 editions of Black’s Law Dictionary in about 120 years. On average, that’s a new edition every 13 years or so. Why new editions? It’s not simply because we’ve created and added new words–it’s also because the definitions of some words have been dropped or modified.
Q: Why do the editors of Black’s Law Dictionary decide to drop or modify the meanings of some words and keep others unchanged?
A: Because somebody argued for (or against) a change in meaning.
At bottom, the meanings of all our words are based on arguments. Want to start an argument? Try to define the meanings of “cool,” “gay” or “nigger”. You just might start a riot.
Look at Black’s 9th edition’s definition of “taxpayer”: “One who pays or is subject to a tax.”
That definition is almost astonishing in its simplicity and brevity. Most words have multiple definitions. But even “taxpayer” is somewhat ambiguous. It either means “one who pays” or it means “one who is subject”. Which definition is presumed by the IRS? Which definition is presumed to apply in John Doe’s case? Does the IRS presume only one definition in all instances of the use of “taxpayer” or do they sometimes assume “taxpayer” means “one who pays” and at other times assumes that they mean “one who is subject to a tax”?
And once any of these answers are provided, who is going to take the witness stand to testify under oath to the precise meaning of the word “taxpayer” in both the major premise and the minor premise of the argument/conclusion that “Doe must pay income taxes”? I doubt that the IRS can produce an agent or expert capable of testifying to the meaning of virtually any word used in the Internal Revenue Code.
Oh, sure, the IRS can find some expert to read a definition of various words as provided in the IRC. But every express definition in the IRC is likely composed of dozens or even hundreds of other words which are not defined in law and whose multiple meanings are therefore subject to argument and dispute.
Thus, every argument is based on a tapestry of inferior arguments that are based on even more inferior arguments, etc., ad infinitum. If you’re not willing to presume that at least some inferior arguments are “facts” that stand independently, it’s almost impossible to “prove” anything. In theory, it’s almost impossible to prove any argument that’s intended to reach the conclusion that “John Doe is Guilty”.
• Of course, if you try to pick apart every argument (including “what the meaning of ‘is’ is”) in trial court, you may look like a moron or a child asking, “Why, daddy? Why, daddy? Why, Daddy?” The judge will be highly pissed and the jury may soon conclude that they’re going to “get you” no matter what your challenges may be. It’ll be hard to “nit pick” the validity of the premises of every inferior conclusion masquerading as a “fact” without sounding like a nut whose only objective is to obstruct the legal process and waste everyone’s time.
So, if you wanted to challenge the validity of the premises underlying plaintiff’s or prosecutor’s arguments–and you didn’t want to alienate the judge and/or jury–you’d probably have to limit your challenges to the main, major and minor premises–and perhaps one level of inferior premises. Once the jury sees that there’s no end to your challenges to increasingly inferior premises, the whole legal system will dissolve into a system that’s as incomprehensible as an LSD experience. In the midst of such disorientation, the jury may strike out at whoever is responsible for destroying their feeling of competence.
• However, unless you’ve committed murder or some other violent act that warrants the legal system’s attention, virtually all of our courtroom controversies begin with a Notice sent by a government agency or a private plaintiff that announce or imply that you have some legal responsibilities which you have breached. These Notices are primarily a list of express or implied “facts” that are actually just “suggested” conclusions. These facts/conclusions are each based on an unstated but implied major and minor premises. If you don’t identify and defeat those unstated premises, you’ll lay the foundation for your subsequent defeat in court.
For example, virtually every controversy with the IRS starts with a Notice from the IRS that begins, “Dear Taxpayer”. That’s not necessarily a statement of fact. The description of the recipient as a “Taxpayer” is a suggested conclusion that’s ultimately based on two or more premises that must all be true. I don’t know what those premises are, but they might be based on nothing more than probabilities:
I.e., major premise: The vast majority of adult residents of the United States pay taxes (and are therefore “taxpayers”); minor premise: John Doe is an adult resident of the United States; conclusion: John Doe is a “taxpayer”.
It’s not necessarily true that Doe is a “taxpayer,” but the odds are high that this conclusion is accurate.
This conclusions makes perfect statistical sense. If more than 51% of American “residents” are “taxpayers,” then the odds are when the IRS sends a Notice that begins, “Dear Taxpayer,” that appellation will usually be correct. But “usually” is just a presumption. The fact that most [even 99.99%] of American adults are taxpayers, does not prove that all American adult are taxpayer. That means that it’s possible for you to challenge the proposed fact/conclusion that you are a taxpayer.
So, what if you responded by asking questions about whatever evidence (premises masquerading as “facts”) exists to prove the proposed fact/conclusion that you are a “taxpayer”? I’ve probably written 30 or more articles discussing “Notice and Right of Inquiry“. If those articles are roughly correct, then the government agency sending you a Notice has to answer ALL of your questions concerning that Notice. If so–and if you are sufficiently astute–you can ask if various “facts” presented by the IRS are actually “facts” or if they are merely proposed conclusions supported by underlying premises. If conclusions, what are all of the underlying premises? You can even ask if some of the underlying “premises” are themselves, just conclusions based on an even deeper level of premises. If you can ask such questions, who might later testify to the validity of the alleged “facts” under oath in court? Or, if they are not “facts,” per se, but are instead conclusions derived from premises, you could ask the IRS to specify each and every major and minor premise that underlies a particular conclusion.
I would not expect the IRS to answer. I wouldn’t even expect the IRS to really understand. But, if my understanding of Notice and Right of Inquiry is correct, if you ask reasonable questions and any government agency fails or refuses to answer, you will have been denied procedural due process. Once you’ve created evidence (with Registered Mail, etc.) that you’ve been denied procedural due process, the responsible government agency will lose standing to take their case to court, and if they try, the court will lose jurisdiction over the case.
What’s the IRS going to do it they can’t take their case to court?
If the IRS (or any other government agency) can be compelled to not merely name, but also debate and defend all of their arguments, conclusions and underlying premises, they’re screwed. They don’t have an IRS clerk with brains enough to play this game. The top IRS officials who might have enough knowledge to argue over the validity of their specific premises, don’t have time enough to do so.
Assuming my proposed strategy is fundamentally correct, anyone who has grasps this strategy will realize that it can go on forever. Virtually no one (other than the defendant) has “forever” to invest in the pre-trial search for premises underlying a potential lawsuit. Therefore, in response to a defendant who has an endless stream of pre-trial questions about the premises underlying every argument/conclusion on which the government and prosecution may rely may be to simply drop the lawsuit.
In theory, this strategy is easy. In fact, it’s hard. You’ll need to be smart enough to ask some insightful questions (see my article “Inquiries in Response to IRS Notice CP59” for an example of possible questions).
• I’ve understood the relevance of “arguments” to court cases for some time. The government advances a conclusion (“Doe is guilty”) based on a major premise and a minor premise. If Doe can identify and refute either of those primary premises, he walks. But I didn’t realize until recently that most of what passes for “undeniable facts” are actually just conclusions that are also based on their own underlying premises. Destroy any of those required premises, and the alleged “fact” ceases to exist.
It’s only recently that I’ve realized that every trial is based not only on whatever argument is obvious (“Doe is guilty of not paying his income taxes”), but also an almost inexhaustible series of underlying layers upon layers of inferior arguments and conclusions that are unstated but implied and/or silently presumed. If a defendant can begin to recognize and “mine” the myriad of implied arguments masquerading as “facts,” the case against him may never get to court.
I begin to suspect that this is “the big secret” about our legal system: it’s all based on underlying arguments and unstated presumptions which, if expressly challenged, are too numerous for the system to defend.
Prior to A.D. 1948 (?) when the government combined the formerly separate procedures for courts of law and equity, the pre-trial procedures for trials in courts of law were incredibly complex. I begin to see that this legal complexity was the result of an almost mind-numbing series of pre-trial procedures that were intended to reduce a very complex controversy down to a single fact/argument. In other words, I begin to suspect that prior to A.D. 1948, the procedure required for cases at law imposed enormous complexity to test a host of underlying arguments, conclusions and premises.
If so, when the courts created “on civil procedure” for all cases, the fundamental object may have been to protect most of the system’s underlying premises from public exposure. Why? Because many of the government’s fundamental “facts” are only conclusions based on premises like: 1) We’re in a national emergency; 2) we’re living in a territory or administrative district rather than a State of the Union; 3) we are citizens of the singular United States rather than citizens of our State of the Union and/or of The United States of America. If those “facts”/conclusions and all of their underlying premises were openly and routinely tested in court, the de facto legal system might collapse.
In other words, I suspect that the primary reason for abandoning the procedures at law and embracing only equitable procedure may have been to escape the incredibly complex need to identify, debate and prove all underlying arguments, premises and conclusions. In equity, those underlying arguments, premises and conclusions, etc., can be presumed true rather than identified, tested and proved–unless the defendant has brains enough to understand and choose to discover and expressly challenge those underlying, understated arguments.
In which case, trials in equity may simply collapse.
• The ideal time to raise the issue of the validity of underlying arguments is after the first Notice is received.
However, so long as I’m “speculatin’ around,” let’s suppose that I was a defendant and that I’d become fairly astute at identifying arguments and challenging their underlying premises.
Let’s suppose I was able to explain the nature of argument to the jury (major premises, minor premises, conclusion, etc.). Let’s suppose I was able to explain to a jury that the trial would consist of a number or arguments relative to different “facts” and “law”. And let’s suppose that I had access to a chalk board, or perhaps to a computer projection screen where I could keep track of each argument and its premises.
What if I systematically checked off each argument on the chalk-board/computer-monitor as it was defeated in the courtroom? I.e., suppose I identified ten arguments and their underlying premises on the chalk board. Suppose I were able to compel witnesses against me to admit that one or more of the premises underlying the “facts” (actually, conclusions) that they were called on to testify against me, were actually false.
This is exactly what goes on in courtrooms every day–except the jurors aren’t told about the elements of each argument, or how one argument may be built on several underlying arguments. The jurors are called on to decide the “facts” (which are actually “conclusions” to underlying arguments), but their decisions are more subjective than logical.
The jurors don’t understand that virtually all alleged “facts” are actually conclusions built on two or more premises. They don’t understand that if even one premise is disproven, the particular fact/conclusion based on that premise must fail, as must all of the remaining arguments that are based on the presumed validity of the alleged “fact” (that’s actually, only a conclusion).
In the midst of the confusion and imprecise understanding of their job as “fact-finders” (actually, conclusion-finders), the jurors can reach some pretty unusual facts (conclusions). Because they don’t understand the mechanics of argument, they can reach conclusions based on who they like, who they dislike, the race, gender or age of the various plaintiffs, defendants, prosecutors, and witnesses.
But if they understood the nature of arguments and if they could see a “scorecard” of whoever’s arguments were being proven or disproven, I think you might end up with a jury who recognize an obligation to to produce a rational, objective, logical verdict that everyone could understand–rather thn some emotional conclusion that might feel good to the jurors and yet be completely wrong.
So, suppose I were able to “keep score” on the chalk-board/computer-monitor of how many of the prosecutor’s arguments and premises had been shown to be false or at least improbable. If I were really good at defeating premises and arguments, and the jury could see on my “scoreboard” that I’d defeated some, most or all of the prosecutor’s arguments–would the jury find me guilty?
I’m not even sure that I can actually keep a “scoreboard” in view of a jury, but assuming I could, and assuming I successfully defeated some or all of the prosecutor’s or plaintiff’s arguments, that tactic strikes me as potentially effective and even impressive.
• Finally, let’s assume that my strategy about identifying arguments and defeating premises is valid. More, let’s assume that (as I suspect) this strategy might provide the “the key” to coping with the mysterious functions of our courts. How th’ hell is that possible? If arguments (and their underlying premises) are as critical as I suspect, that criticality didn’t just appear in the past few years. Arguments have had to have been critical to law for centuries.
If so, how’d we lose track of the fundamental importance of arguments?
A: We lost track because the government wanted us to lose track. I strongly suspect that government wanted to try us in courts of equity (where underlying arguments can be unstated and silently presumed) and the judge rules according to his own, alleged “conscience” rather than the law.
What are the biggest unstated-presumptions/silent-conclusions in courts of equity? I believe that some possibilities include 1) the presumption that a fiduciary relationship exists between the plaintiff and defendant; and 2) that the defendant has voluntarily agreed to serve as fiduciary for the benefit of the plaintiff.
I could be completely mistaken in my notions are the “silent conclusions”. After all, they are “silent”. Where’s my evidence that these silent/invisible conclusions/presumptions even exist? In fact, I have no such evidence.
More, virtually no plaintiff or prosecutor goes to court and expressly declares the existence of a fiduciary relationship between plaintiff/prosecutor and the defendant. Most plaintiffs don’t even know what a “fiduciary relationship” is. So, what sense does it make for me to allege that such unstated fiduciary relationships exist in the judge’s mind by virtue of implication and presumption?
Even so, I’m pretty sure that’s what’s going in most, perhaps almost all, modern court cases.
Assuming my belief were valid, how could the unstated presumption of a fiduciary relationship be defeated? The defendant would have to expressly testify under oath that he had never knowingly, intentionally and voluntarily entered into a fiduciary relationship with the plaintiff or whatever entity the prosecutor represents. Once the defendant expressly denies the existence of a fiduciary relationship between himself and the plaintiff, I’ll bet that a lot of cases (perhaps most of ’em) will be estopped from lawfully proceeding in equity–and I’m all but certain that the modern prosecutors don’t want to, or perhaps can’t, proceed at law.