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Author Topic: Law schools + religious right  (Read 2861 times)

LitDoc

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Re: Law schools + religious right
« Reply #20 on: March 15, 2006, 09:06:45 PM »
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I have to wonder whether that approach is the legitimate way to de-priviledge it. Do you have any evidence to suggest that emotion is better than logic when it comes to making public policy decisions?  I can name dozens of times when it was clearly a mistake, but I have a difficult time thinking of one area where it worked for the best.

Well, first, I'm not trying to say that emotion is better than logic in making public policy decisions. I'm trying to say that ethos, pathos, and logos are all components of rhetoric, and that logos shouldn't necessarily be privileged over the others in judging rhetorical effectiveness. That is what was occurring, as I saw it, earlier in the thread -- Liberty's students were being degraded for making emotional arguments, instead of logical ones, and people were scoffing at the idea that they would win debate competitions doing so.

There are countless examples of arguments that are made effectively without appeals to logic. If by "effective" we mean the argument successfully persuaded people, then advertising as an industry is one big example of the effectiveness of pathos-laden arguments. In law, the passing of the Patriot Act (by a vote of 99 to 1 in the Senate!) is a good example of the effectiveness of pathos-laden arguments. All I was trying to say is that a group of debaters shouldn't be disparaged for employing pathos in their arguments -- pathos is just as legitimate a tool in rhetoric as logos is, and can be just as effective. Indeed, in some contexts, it is MORE effective.

Of course, what you're asking now is different. You're asking for an example of emotion being "better" than logic in making public policy. Judging one approach to making policy as better than the other is different from judging one rhetorical means for persuading an audience as more effective than the other.

I would not endeavor to argue that an emotion-based approach to making public policy is better (in any broad, categorical sense) than a reason-based approach; but I would definitely argue that emotion-based arguments can be more effective than logic-based ones (though, again, not in a broad categorical sense). I do think that there are probably contexts in which an emotion-based response is preferable to a reason-based response, and better for making law or policy -- at least initially.

The example that comes to mind is a judge's "feeling" for what the "right" outcome ought to be in a particular case. Logically, precedent and/or statute might demand a particular outcome, but this outcome does not seem to do "justice." It doesn't seem (read: feel) right or fair. So, the judge looks for ways to logically (and legally) support her feeling for the case. In the end, the decision might be laced with legal reasoning -- but it was an emotional (non-logical) response that led to the "better" outcome. What I'm describing here is roughly the way Legal Realists believe most -- perhaps even all -- cases are judged.
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redemption

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Re: Law schools + religious right
« Reply #21 on: March 16, 2006, 11:24:21 AM »
How did I miss this little discussion?  :D

There is no law without language, no language without rhetoric, no rhetoric without emotion. The distinction between logic and emotion is largely a false one, and certainly so in the domain of the law or in any other social/political sphere.

If Liberty won because of their superior use of emotion or rhetoric, then they won in the manner that all lawyers do.

Down with logocentrism!

LitDoc

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Re: Law schools + religious right
« Reply #22 on: March 16, 2006, 11:45:35 AM »
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I get the impression that people on the board are using "effective" in the sense of "made a good decision," not made the decision a specific person wanted them to make.

If you think you made a good decision, that is because you have been persuaded by the arguments that it is a good decision. You're talking as though there is a "good decision" that is somehow inherently good, outside of the arguments in its favor. How would you know it is good without talking about it (i.e., making arguments for and against it)?

If people are making the false distinction that you say they are making (between a "decision that is good" and a "decision that they have been convinced via rhetoric is good"), then part of my objective here is to point out that this is a false distinction.

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Furthermore, I don't think anyone on the board questions the fact that emotion can influence decision.  We're questioning whether it should.

And I'm trying to point out that it does, whether you think it should or not, because it is a component of rhetoric -- and decisions are influenced by and are acts of rhetoric. Language is rhetorical.

Here's a short exercise to illustrate what I'm talking about. Each of the following sentences is supposedly "descriptive" -- that is, it does not (overtly) make an argument, it simply describes an action.
1. The man struck the girl.
2. The father spanked the child.
3. The guard subdued the thief.

Now, I'm willing to bet that, when confronted with these "descriptive" "facts," you (along with everyone else) will begin to form judgments. You will begin to take sides. In sentence #1, you are likely to have feelings that are against the "man" and in favor of the "girl"; in #2, you may be a little more undecided -- depends on what the child did, what your theories of parenting are, etc. -- so let's say you're somewhere in the middle; and in #3, you are likely to have feelings against the thief and in favor of the guard.

Now, consider this: all three sentences can be "describing" the exact same incident. The simple act of choosing words for describing the incident is a rhetorical act -- word choice persuades, because words carry emotional baggage. Your judgments here are based on emotion (pathos), not logic. And by changing the words from sentence #1 to sentence #3, I have persuaded you to change sides.

In a sense, the question of whether or not emotion "should" influence your judgments is moot -- there is no escaping the fact that it always already does. Even when you try to decide between "logic" and "emotion," you are influenced by the pathos attached to these words -- because of cultural values, etc., which are wrapped up in language, we feel that logic is "better" than emotion. So, even the assertion of logic over emotion is an assertion that relies (at least in part) on emotion for its persuasive impact.

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citing the Patriot Act doesn't aid your case.

It does, if my case is to show how persuasive emotion can be. (And that was my case.) The Senators voted 99-1 for the Patriot Act, motivated mostly by pathos-laden arguments (the emotion of choice, to be evoked, was fear). Later, MANY of those same Senators regretted their vote, and became critical of the Act they had voted to pass. And recently, when the revised Patriot Act went through, it passed by a slim margin -- even after the revisions.

If you're trying to say that the Patriot Act doesn't aid a case arguing that emotion SHOULD guide decision making, then you're right. The Patriot Act would be an example, I think, of why emotion should NOT guide decision making.

But what about compassion? I think it would be possible to come up with examples of laws/policies that are enacted more out of emotion (goodwill, compassion, charity, etc) than out of reason -- humanitarian laws/policies -- and I think we might agree that this is a good thing. And I would point out (again) that reason and emotion (logos and pathos) are not mutually exclusive; there's a lot of overlap between the two.

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I have to wonder how the legal realists account for the case where a man willed his income to the person who murdered him, and the courts upheld giving him the money -- even though they pointed out in their decision that it felt like the unjust choice.  (This was before they passed laws prohibiting murderers from profiting from their crimes.)

I'm no expert in Legal Realism, but I would imagine that they would say that the judges' respect for and loyalty to precedent and/or statute (respect and loyalty being more emotion than reason) outweighed their other "feelings" about the case -- so they aligned their reasoned arguments with those feelings of respect/loyalty instead of with the feelings of unfairness.

I think we all have to admit that VERY often our reasoned arguments are constructed to conform to our previously held beliefs and feelings, which we arrived at NOT via reasoned/logical arguments.

Last but not least...

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jsia

What does this mean? Apparently I'm not up on all the discussion-board vernacular.... (Talk about using terms for "experts in the field"! :))
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LitDoc

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Re: Law schools + religious right
« Reply #23 on: March 16, 2006, 11:49:06 AM »
How did I miss this little discussion?  :D

There is no law without language, no language without rhetoric, no rhetoric without emotion. The distinction between logic and emotion is largely a false one, and certainly so in the domain of the law or in any other social/political sphere.

If Liberty won because of their superior use of emotion or rhetoric, then they won in the manner that all lawyers do.

Down with logocentrism!

I agree to an extent with your deconstructive turn -- the idea that logic/emotion is a false binary. But saying it is "largely a false distinction," I think, suggests that we can't distinguish. (I don't think you necessarily mean to suggest this, only that it is suggested.) I think we CAN distinguish between them -- but there is more overlap than we tend to acknowlege or realize.

And I certainly agree with the deprivileging urge that inheres in deconstructing the binary.
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LitDoc

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Re: Law schools + religious right
« Reply #24 on: March 16, 2006, 11:50:55 AM »
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if I'm remembering my neurology classes correctly, there isn't a substantial overlap between the areas responsible for emotion and the ones responsible for mathematical logic.

Parts of the brain don't have to overlap for there to be cognitive, conceptual overlap.
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LitDoc

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Re: Law schools + religious right
« Reply #25 on: March 16, 2006, 01:50:37 PM »
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Then how do you account for people who change their mind when they see the effects of their actions?  Let's take, for example, the people who voted for Bush and are now giving him abysmal job approval ratings -- and saying that they wished they had voted for Kerry.

C'mon. Think about it. Experience changes and influences arguments. I may be convinced that Bush is the "good choice" in 2004 (I wasn't), but in 2006 I am no longer convinced. The arguments have changed, or no longer hold water. The fact that people change their mind is evidence in favor of what I'm saying about the false distinction between "good decisions" and "decisions we are convinced are good."

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In public policy, people start with statistics. They're not always perfect, but they can give you the general picture.

Oh. My. Gosh. You sound as though you believe statistics are outside the realm of rhetoric. Stats can be (and are) manipulated, as much as language, and stats can always be found to "back up" arguments on every side. They fall into the realm of ethos in rhetoric, because we invest them with authority -- that is, they are "authoritative." Citing stats in an argument is like citing the Bible, or quoting Thomas Jefferson, or citing precedent -- it is an appeal to "authority." And, like all authorities, they only have the authority we choose to give them.

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I agree that there are [occasions when it is a false distinction.  But there are other times when it clearly isn't. Let's take, for example, HIV/AIDS.  We think that encouraging  abstinence, monogamy, and -- "if you aren't going to abide by the first two" -- condoms is a good thing.  However, by endorsing the idea that you don't need condoms with someone you trust, women are using birth control pills instead of condoms when they sleep with their boyfriends.  As a result, rates of HIV/AIDS are skyrocketing among women, especially black women.  It's why public health officials think that current AIDS prevention strategies are problematic, but virtually everyone else thinks they're good.

You're confusing things. I'm talking about a false distinction between what you call a "good decision" and what you have been convinced (by the arguments) is a "good decision." You think current AIDS prevention strategies are bad (I'm simplifying from "problematic"). You think this because you are persuaded by the arguments that it is so. Trying to distinguish between "it is so" and "I have been persuaded that it is so" is a false distinction, because there is no way to step outside of the rhetoric.

You're confusing things by trying to show that there IS a distinction between what Person A thinks is a good decision and what Person B (you, or health officials) thinks is a good decision. Of course there's a distinction here. That's not the (false) distinction I was talking about.

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Actually, no.  It takes a bit of introspective effort, but you can train yourself to detach emotionally from what you read, as well as to be aware of how words' connotations -- and how to restrain those judgmental tendencies until all the facts are in.

Nice try. But no one is that detached. If you are told "the man struck the girl," then someone asks you whose side you're on, I would have trouble believing that you would not be on the girl's side. You can protest -- you can say "I want more info before I decide," etc., etc. -- but the fact is that, upon hearing those words, your are already subtly influenced in a particular direction. Judgments are beginning to form. Sure, you can resist them -- and you should. That's part of critical thinking, to question our impulses. But critical thinking acknowledges the impulses that it is questioning. Your attempt to deny these forces is an attempt to deny the power of language -- a kind of self-blinding that is NOT in accord with critical thinking.

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In my case, at least, emotion is much more positive than logic.  I just can't get around how emotion doesn't lead to quantatively better public policy decisions, especially as it pertains to public health issues.


Again, you're confusing things. You try to counter what I'm saying by claiming that emotion is "more positive than logic" for you. But then you turn right around and reveal that you share, along with most of American (even Western) society/culture, the privileging of logic over emotion when it comes to certain kinds of decision-making. When I said that logic is culturally privileged over emotion, I meant in this context. Clearly, in other contexts, we privilege emotion over logic (as in romantic relationships, for example).

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If that's the case, then they're using "respect" and "loyalty" in a sense that differs substantially from daily useage.

I take it you're trying to say here that respect and loyalty are not emotion-based, but rather logic-based phenomena. Trying to draw these distinctions gets tricky -- as red has pointed out, and I agree, the distinction between reason and emotion is MUCH blurrier than we like to let on. But I still think we can make distinctions.

I'm going to assume that you think that when we have respect for, or loyalty to someone, we have reasons for doing so. That is, I assume the basis for your suggestion that these are not emotion-based is that some thought -- often even analytical thought -- might go into them. They are not "emotions" in the same way that, say, fear is an emotion.

But having reasons for thinking (or feeling) a certain way is not the same as being logic-based. I might be loyal to X because I had a dream in which an angel told me to always be loyal to X. For me, this is a great reason for loyalty -- indeed, I may have put all kinds of careful thought and deliberation into the decision, and in the end I've decided the dream is good reason for loyalty. But it is hard to say that my loyalty is logic-based.

I'm being a little absurd, of course. But the point is that careful thought, "good reasons," and your experiences, are NOT the same as logic. In daily usage, you might think that being loyal to X is based on personal experience, careful thought, and sound reasons, and is therefore a logic-based action. But it isn't. Logically, it might be that none of those things is sufficient to require loyalty. Your loyalty is still derived from something other than logic, strictly speaking, and this is likely ethos and/or pathos.

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I'm not doubting that.  I'm just saying it's not universal.  Look at Peter Singer and his statements on infanticide.  (He says that at an emotional level, he doesn't like his own argument, but that he can't fight with the logic.  And so far, no other bioethicist has been able to either.)  Look at mathematicians who study differential equations.  Look at chemists playing with plastics.

Have you read Kuhn's Structure of Scientific Revolutions?

And jsia = just sayin' is all...got it.
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LitDoc

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Re: Law schools + religious right
« Reply #26 on: March 16, 2006, 02:46:47 PM »
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Now you're just playing with words by ignoring the context (which is why I added the preceeding discussion back in) and misinterpreting how people are perceiving time.  "Good decisions" are largely considered to be "good decisions" when the people who made them don't change their mind about the decision after the fact.

1. What context am I ignoring?
2. How am I misinterpreting how people perceive time?
3. According to your last sentence, we can only judge decisions as "good" in retrospect -- after we've had time to know whether or not we've changed our minds. But all along you've been talking about using logic/emotion to make "good decisions" -- as though somehow logic/emotion will help us to know whether the decision we're making (present tense) is "good" or not. If logic/emotion won't help us to make a judgment about the "goodness" of our decision in the present, as we are making it -- if we have to wait till later, to see whether or not we change our minds -- then there isn't any way to favor logic over emotion, or vice versa, when it comes to deciding how to make decisions.

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In public policy, people start with statistics. They're not always perfect, but they can give you the general picture.

Oh. My. Gosh. You sound as though you believe statistics are outside the realm of rhetoric.

Now you're just putting words in my mouth, and in doing so, turn me into a strawman that I am not.  And that's where I end the discussion. I have better things to do with my time than to waste it with someone who feels the need to resort to dressed-up logical fallacies at my expense.  I gave you the benefit of the doubt when you did it before, and clearly I was wrong in doing so.

I suspect it was the tone of my "oh my gosh" that offended you. I apologize. But, for clarification, I didn't put any words in your mouth. I said, "You sound as though you believe..." -- no words in your mouth.

And you keep saying that I'm the one ignoring context. As a reminder, here is what I said earlier:
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"You're talking as though there is a "good decision" that is somehow inherently good, outside of the arguments in its favor. How would you know it is good without talking about it (i.e., making arguments for and against it)?"


Your response was
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In public policy, people start with statistics. They're not always perfect, but they can give you the general picture.

Read this exchange carefully. Can you understand why I thought it sounded like you were saying stats are outside the realm of rhetoric?

I haven't set you up as a strawman. A strawman is an easily refuted claim or argument -- the gross misrepresentation of an opposing argument. The fact that I'm taking this time to respond to your arguments is evidence that I do NOT think they are easily refuted -- I think they are deserving of my time. If I have somehow grossly misrepresented your argument, show me where and how. If there are "dressed up logical fallacies" in what I'm saying, please point them out, and be specific.

Right now, it just sounds like you're giving up under the pressure of my argument, and trying to cover your retreat by crying foul. I didn't mean to offend you, and I don't think there are any gaping logical holes in what I'm saying. If you don't want to play anymore, that's fine. But please don't claim flaws in my argument just because you don't want to continue yours.
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redemption

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Re: Law schools + religious right
« Reply #27 on: March 16, 2006, 03:12:55 PM »
This is an excellent discussion to watch.  :D

I think that you would get to the kernel of your disagreement if you picked, and stuck to, one example and whittled it down to its essence. I rather wish you wouldn't, though, because it's fun to watch the range of arguments and cases being deployed.

LitDoc

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Re: Law schools + religious right
« Reply #28 on: March 16, 2006, 03:26:52 PM »
This is an excellent discussion to watch.  :D

I think that you would get to the kernel of your disagreement if you picked, and stuck to, one example and whittled it down to its essence. I rather wish you wouldn't, though, because it's fun to watch the range of arguments and cases being deployed.

You're a kinky voyeur, red. I like that.
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LitDoc

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Re: Law schools + religious right
« Reply #29 on: March 16, 2006, 04:47:27 PM »
Quote from: LitDoc
But, for clarification, I didn't put any words in your mouth. I said, "You sound as though you believe..." -- no words in your mouth.

Ah, so the person whose argument hinge upon upon words' unstated connotations is how relying exclusively upon a dictionary definition, and expecting us to ignore what the context was clearly indicating that he was trying to do?  The word "hypocrite" jumps to mind.

On the plus side, you have now reminded me why it's a bad idea to give anyone the benefit of the doubt.

Lily, your degenerating into pure ad hominem. I'm sorry to see that.

a) My argument does not "hinge" on the unstated connotations of your words. I suggested that one can only determine the goodness of a decision within the context of language and rhetoric, and I asked how else it could be done. You responded by saying some people look at statistics. Then you got really upset when I took this to mean that you were suggesting that stats were somehow outside the realm of language and rhetoric. Even if I misinterpreted you here, this was only one small facet of our discussion. Hardly what my argument "hinges" on.

b) I'm not relying exclusively on dictionary definitions of anything. You accused me of putting words in your mouth. This generally means that I'm somehow misrepresenting what you said. Again, perhaps I misinterpreted you. But I repeat:

I suggested that one can only determine the goodness of a decision within the context of language and rhetoric, and I asked how else it could be done. You responded by saying some people look at statistics. Then you got really upset when I took this to mean that you were suggesting that stats were somehow outside the realm of language and rhetoric.

If this wasn't your intended meaning, what was?

c) Call me a hypocrite if you like. I fail to see how it's true -- and even if true, it's still an ad hominem. Whether I'm a hypocrite or not is irrelevant to the argument at hand. At best (from your point of view), you undermine my credibility; at worst, you reveal a lack of understanding of what I've been saying, and you look like a name-caller who has nothing substantive to say.

d) Finally, that's at least twice now that you've claimed to have given me the benefit of the doubt. How generous.... Usually, though, I understand "giving someone the benefit of the doubt" to mean that I am assuming that I might be misunderstanding them. That is, I doubt that I understand what they're saying or where they're coming from completely, so I give them the benefit of that doubt, and I try harder to understand them before making judgments.

However, you seem to be using the phrase differently. You seem to be doubting that I know what I'm talking about. Or doubting that I understand what you're talking about. You don't seem to be doubting yourself at all. The last time you used the phrase, you said I was dressing up my arguments in fallacies -- you gave me the benefit of the doubt the first time, but not anymore. It seems your doubt is not in your own lack of understanding, but in me or in mine. I'm not sure how I derive any benefit from this doubt, so I'm not sure what "benefit of the doubt" you're giving me.

I'm more than willing to return to the kernel of our dispute, though, as red has suggested, and to dispense with all this tangential bickering.

My core claims: law is immersed in and inextricable from rhetoric; rhetoric includes appeals to emotion (as well as to logic and authority); emotion always already does influence decisions and judgments, whether or not it should; logic and emotion are not mutually exclusive of one another, and at times are difficult to distinguish; there may be contexts in which emotion-based (rather than logic-based) decisions are "good decisions"; and there may even be contexts in which making a decision based on emotion is "better" than making a decision based on logic.
"There is no was." -- William Faulkner

University of Texas, Class of '09