EXERCISES

1. Bring to cla.s.s editorials from different newspapers on the same local subject, and point out differences of att.i.tude which they a.s.sume in the audiences they address.

2. Suggest three different possible audiences for your argument, and show what differences you would make in your argument in addressing each of them.

16. The Burden of Proof. The principle which underlies the responsibility for the burden of proof may be summed up in the adage of the common law, _He who a.s.serts must prove_.

At the law this principle has been elaborated into a large and abstruse subject; in ordinary arguments where there is no judge to make subtle discriminations, you must interpret it in the broadest way. The average man lacks both the interest and the capacity for making keen distinctions; and when you are writing for him you would make a mistake if you were to stickle for fine points concerning the burden of proof.

In general, the principle as it bears on the arguments of everyday life implies that any argument in favor of a change shall accept the burden of proof. This application of the principle is ill.u.s.trated in the following extract from an editorial article in _The Outlook_ some years ago, on a proposed change in the law of New York concerning the safeguards of vivisection.

The real question is not as to the merits of vivisection, but as to the proper safeguards with which the law should surround it.

At present the law of New York state applies to experiments upon animals the same principle that it applies to surgical operations upon men, women, and children. It does not attempt to prescribe the conditions under which either experiments or operations should be conducted; but it does prescribe the standards of fitness which every person who may lawfully engage in surgery and which every person who may lawfully engage in animal experimentation must meet. It penalizes with fine or imprisonment or both the unjustifiable injuring, mutilating, or killing of animals; and it confines to regularly incorporated medical colleges and universities of the state the authority under which animal experimentation may be conducted.

The burden of proof rests upon those who would have the state abandon this principle and subst.i.tute for it the principle of prescribing the conditions of scientific investigation. It rests upon them to prove, in the first place, that the present law is inadequate. It is not sufficient for them to produce lawyers who give opinions that the law is not efficient. There are lawyers of the highest standing in the state who declare that it is efficient. The only adequate mode of proof would be by the prosecution of an actual abuse. So far as we have been able to learn, only one authentic case of alleged unjustifiable experimentation has been brought forward by the supporters of the bills. This is certainly not proof that the present law is inadequate.

In the second place, the burden of proof rests upon them to show that legal restrictions on the methods of science would not vitiate investigations, and would not, therefore, entail upon human beings greater suffering than would otherwise be inflicted upon animals ...

It is because _The Outlook_ is convinced by overwhelming evidence that the practice of vivisection has not increased suffering but has rather widened immeasurably the merciful ministrations of medicine and surgery that it regards as dangerous unintelligent interference with vivisection, and urges the maintenance of the principle underlying the present New York law.

So with other questions of policy, the burden of proof would be on any one who proposed a change from a policy long established, such as free trade in England, and to a less extent protection in this country, the elective system in many American colleges, the amateur rule in school and college athletics.

Always, one must remember that the burden of proof depends on the prepossessions of the audience, and that on the same question it may change within a moderately small number of years. Ten years ago, on the question of the popular election of senators the burden was clearly on the side of those who advocated a change in the Const.i.tution. By this time (1912) the burden of proof has for a majority of the people of the United States probably swung to the other side. In the state of Maine, where prohibition had been embodied in the state const.i.tution for a generation, the burden of proof was on those who in 1911 argued for its repeal; whereas in Ma.s.sachusetts, which has done well for many years with local option and high license, the burden would still be on those who should argue for state prohibition. In the discussions of the game of football a few years ago the burden of proof before an audience of athletes would have been on those who declared that the game must be changed; with college faculties and men of like mind the burden of proof would have been on those who defended the old game. In each case that comes up, you cannot place the burden of proof until you know whether the people you are trying to convince have any prepossessions in the matter: if they have, the burden of proof is on him who attempts to change those prepossessions; if they have not, the burden is on him who is proposing to change existing views or existing policies.

In no case, however, with a popular audience is it very safe to depend much on the burden of proof; almost always it is better to jump in and actively build up the argument on your own side. In argument, as in strategy, take the offensive whenever you can.

Notebook. Note whether the burden of proof is with you or against you, taking into account the probable prepossessions of the audience you have selected.

Ill.u.s.tration. In the argument for the introduction of the commission form of government into Wytown the burden of proof is on the affirmative to show that the Des Moines plan of city government will cure the evils of the present government of Wytown. With the audience a.s.sumed (see p. 43), there is no burden of proof on the affirmative to establish the need of a change.

EXERCISES

1. In three subjects which you might choose for an argument show where the burden of proof would lie.

2. In the case of one of these arguments show how the burden of proof might change with the argument.

17. The Brief. When you have settled these preliminary questions of the audience you wish to win over to your view, and of the way their prepossessions and knowledge of the subject will affect your responsibilities for the burden of proof, you are ready to begin work on the brief, as the plan for an argument is called. This brief it is better to think of as a statement of the logical framework of the argument, which you are constructing for the purpose of clearing up your own mind on the subject, and especially to help you to see how you can most effectively arrange your material. It differs from the usual brief in a case at law in that the latter is ordinarily a series of compact statements of legal principles, each supported by a list of cases already decided which bear on that principle. The brief you will be making now will consist of an _introduction_, which states whatever facts and principles are necessary to an understanding of the brief, and the _brief_ itself, which consists of a series of propositions, each supporting your main contention, and each in turn supported by others, which again may each be supported by another series. Such an a.n.a.lysis will thoroughly display the processes of your reasoning, and enable you to criticize them step by step for soundness and coerciveness.

I shall first explain the several steps which go to the making of the introduction to the brief; and then come to the making of the brief itself.

18. The Proposition. The first step in making the introduction to your brief is to formulate the question or proposition (the two terms are interchangeable in practice). Until you have crystallized your view of the subject into a proposition you have nothing to argue about.

"Commission form of government" is a subject, but it is not arguable, for it gives you no hold either for affirming or denying. "Commission government should be adopted in Wytown," or "Commission government has improved political conditions in Des Moines," are both propositions which are arguable (though not yet specific enough), for it is possible to maintain either the affirmative or the negative of either of them.

The proposition must be single. If it be double, you have what the lawyers call "a squinting argument," that is, an argument which looks in two directions at the same time. For example, the proposition, "Commission government would be a good thing for Wytown, but the initiative and referendum are wrong in principle," involves two separate and unconnected principles, since commission government as first embodied at Galveston does not include the initiative and referendum.

Many people, including those of Galveston and other places in Texas, would accept the first half of the proposition, and disagree with the second half. On the other hand, "Wytown should adopt a commission government on the Des Moines plan," would not be a double proposition, though this plan includes the initiative and referendum; for the proposition makes the issue that the plan should be adopted or rejected as a whole.

In some cases a proposition may be grammatically compound, and yet carry a single a.s.sertion. "Munic.i.p.al government by commission is more economical and efficient than munic.i.p.al government with a mayor and two chambers," is really a single a.s.sertion of the superiority of the commission plan of government. In this case there is no danger of getting into a split argument; but even here it is safer to reduce the proposition to one which is grammatically single, "Munic.i.p.al government by commission has proved itself superior to munic.i.p.al government with a mayor and two chambers." A predicate wholly single is a safeguard against meaning two a.s.sertions.

The proposition must not be so abstract or vague in terms that you do not know whether you agree or disagree with it. Macaulay summed up this difficulty in one of his speeches in Parliament:

Surely my honorable friend cannot but know that nothing is easier than to write a theme for severity, for clemency, for order, for liberty, for a contemplative life, for an active life, and so on. It was a common exercise in the ancient schools of rhetoric to make an abstract question, and to harangue first on one side and then on the other. The question, Ought popular discontents to be quieted by concession or coercion, would have been a very good subject for oratory of this kind.

There is no lack of commonplaces on either side. But when we come to the real business of life, the value of these commonplaces depends entirely on the particular circ.u.mstances of the case which we are discussing.

Nothing is easier than to write a treatise proving that it is lawful to resist extreme tyranny. Nothing is easier than to write a treatise setting forth the wickedness of wantonly bringing on a great society the miseries inseparable from revolution, the bloodshed, the spoliation, the anarchy. Both treatises may contain much that is true; but neither will enable us to decide whether a particular insurrection is or is not justifiable without a close examination of the facts.[4]

In other words, though the word "insurrection" seems to be plain in meaning, yet when we make it one term of a judgment of which the other term is "justifiable," we find that we do not know whether we agree or not. The terms of the proposition are so vague that there can be no meeting of minds. If we limit the subject to a specific case, insurrection in Venezuela, or insurrection in Cuba, then we have made a beginning toward making the proposition arguable. In these particular cases, however, it would probably be necessary to go further, and specify which insurrection in Venezuela or in Cuba was intended, before the average American would be prepared either to affirm or to deny.

Wherever the terms of a proposition are too vague to provoke profitable discussion they must be narrowed down to a specific case which will draw forth affirmation and denial.

A common case where the vagueness of the proposition leads to difficulties in the argument is described in the following pa.s.sage:

An equally common form of argument, closely allied to the argument by a.n.a.logy, and equally vague, is that which is popularly known as the objection to a thin end of a wedge. We must not do this or that, it is often said, because if we did we should be logically bound to do something else which is plainly absurd or wrong. If we once begin to take a certain course there is no knowing where we shall be able to stop with any show of consistency; there would be no reason for stopping anywhere in particular, and we should be led on, step by step, into action or opinions that we all agree to call undesirable or untrue....

For it must not be forgotten that in all disputes of this kind there are two parties opposed to each other, and that what divides them is precisely their lack of agreement on the question what principle is really involved. Those who see a proposal as a thin end of a wedge always see the principle as a wider, more inclusive one, than those who make the proposal; and what gives them freedom so to see it is merely the fact that it remains indefinite.[5]

As a practical example of this confusion, consider the following extract from a speech in the United States Senate opposing the popular election of senators:

Every intelligent student of the present rapid trend toward popular government must see what would happen when this sentimental bar of the States being represented by two Senators instead of by the people in the United States Senate is thrown down. The initiative, the referendum, and the recall are but symptoms of the times. That the people will have their way, because they, and they alone, are the government, is the underlying spirit of our inst.i.tutions, of our newest State Const.i.tutions, and of our progressive laws. Skillful agitation seizes upon every pretext and eagerly grasps and enlarges every opportunity for appeal to the pa.s.sions in an advancement of its purposes. The next cry will necessarily be, "Why not elect the Supreme Court of the United States by popular vote? Why not elect the Federal Judiciary everywhere by popular vote?"[6]

Here the proposition, "That the people will have their way, because they, and they alone, are the government, is the underlying spirit of our inst.i.tutions, of our newest state const.i.tutions, and of our progressive laws," is not only obscure in terms, but it is wholly vague, for it does not define how far the progressive party propose to carry popular direct government. Until the two sides agree on that point they have nothing definite enough for profitable argument.

It is surprising to notice how often in political debates this fallacy is committed. It is human nature to believe for the time being that the other side will do the worst thing that the circ.u.mstances make possible.

Fortunately, human nature just as constantly refutes the error.

To make clearer this necessity of having a definite proposition to argue, let us take one of the subjects suggested on page 10 which is not yet in a form for profitable argument, and amend it. "The standard for graduation from this college should be raised," is a subject that can be discussed, but as it stands it would not be a good proposition for an argument, because it is vague. How much should the standard be raised?

By what method should it be raised? These and other questions you would have to answer before you would have a proposition definite enough to be argued with profit. The proposition could be made definite enough by such amendments as the following: "The standard for graduation from this college should be raised by requiring one eighth more hours of lecture or recitation in each of the four years"; or, "The standard for graduation from this college should be raised by increasing the pa.s.s mark in all courses from fifty per cent to sixty per cent"; or, "The standard for graduation from this college should be raised by allowing no student to have his degree who has fallen below sixty per cent in one fourth of his work, and has not attained eighty per cent in at least one eighth of his college work." In each of these cases the proposition is so definite that you could find exactly how many students would be affected. A proposition which involves a definite body of facts is arguable; one which involves an indefinite and incalculable body of facts is not.

To take another example from the brief we shall be working out in this chapter, the proposition, "Wytown should adopt the commission form of government," is not definite enough, for there are various forms of commission government, such as the Galveston plan, the Des Moines plan, and by this time a considerable variety of others; and citizens who are at all particular in their voting would want to know just which of these was proposed for their approval. The proposition, therefore, would have to be limited to, "Wytown should adopt a commission government after the Des Moines plan."

The exact form of your proposition will not always come to you at the first try. It may easily happen that you will not see the exact issue involved in the argument until you have gone some way with the processes of a.n.a.lysis which we shall be considering in the rest of this chapter.