McEvoy: “What may be emerging is that sometimes 'legal reasoning' may be more
puzzling on close examination than it is when superficially understood.”
It is odd that of all people, Toulmin, an Oxbridge type if ever there is one –
he studied ‘under’ Witters at -bridge and ‘lectured’ at Ox- -- thought that
legal reasoning should be the basis for _all_ reasoning. But I never understood
his conversations with H. L. A. Hart.
For Toulmin aims to develop a type of argument, that he sees as paradigmatic.
A Toulminian argument first find a claim of interest, and then provides
justification for it.
Toulmin believes that reasoning is less an activity of inference, involving the
discovering of new ideas, than it is a process of testing and sifting already
existing ideas — an act achievable through the process of justification.
Toulmin believes that for a “good” argument to succeed, it needs to provide
good justification for a claim.
This, Toulmin believes, ensures that the argument stands up to criticism and
earns a favourable verdict.
In his The Uses of Argument Toulmin proposes a layout containing six
interrelated components for analyzing arguments:
Claim (Conclusion): A conclusion whose merit must be established. It may be
called the thesis. For example, if A tries to convince B that A is a British
citizen, the claim would be "I am a British citizen." Ground (Fact, Evidence,
Data): A fact the arguer appeals to as a foundation for the claim. E.g. A
support his claim with the supporting data "I was born in Bermuda." (2)
Warrant: A statement authorising a movement from the ground to the claim. In
order to move from the ground ("I was born in Bermuda”) to the claim ("I am a
British citizen”), R (the reasoner) must supply a warrant to bridge the gap
between the claim and the ground with the statement "A man born in Bermuda will
legally be a British citizen."
Backing: Credentials designed to certify the statement expressed in the
warrant. Backing must be introduced when the warrant itself is not convincing
enough to R’s addressee. E.g. if R’s addressee does not deem the warrant in 3
as credible, R will supply the legal provisions: "I trained as a barrister in
London, specialising in citizenship, so I know that a man born in Bermuda will
legally be a British citizen."
Rebuttal: Statements recognizing the restrictions which may legitimately be
applied to the claim. The rebuttal is exemplified as follows: "A man born in
Bermuda will legally be a British citizen, unless he has betrayed Britain and
has become a spy for another country."
Qualifier: Words or phrases expressing the reasoner’s degree of force or
certainty concerning the claim. Such words or phrases include "probably,"
"possible," "impossible," "certainly," "presumably," "as far as the evidence
goes," and "necessarily." The claim "I am definitely a British citizen" has a
greater degree of force than the claim "I am a British citizen, presumably.
The first three elements -- the "claim," the "ground," and the "warrant” -- are
considered as the essential components of an argument, while the second triad
-- the "qualifier," the "backing," and the "rebuttal” -- may not be needed in
When Toulmin first proposed the model, the layout of argumentation was based on
LEGAL arguments and intended to be used to analyse the RATIONALITY of arguments
typically found in the courtroom.
Toulmin did not realise that his layout can be applicable to the field of
rhetoric and communication until his model was introduced to rhetoricians by
Wayne Brockriede and Douglas Ehninger. Only after Toulmin offered “An
Introduction to Reasoning” were the rhetorical applications of this layout
Toulmin's model has inspired research on, e.g., the Goal Structuring Notation
(GSN) (see goal modelling), widely used for developing safety cases, and
argument maps and associated software.
Typically, Grunebaum, who gave the John Locke lectures on “Aspects of Reason”
in 1979 does not care to mention Toulmin. They shared some respect for ordinary
language, though, especially after A. G. N. Flew (Grunebaum’s first tuttee)
cared to include an essay on the linguistic botany of ‘qualifiers’ (“probably,”
and the like) in an influential compilation (published by Blackwell).
Grunebaum, Aspects of Reason, Clarendon.
Toulmin, Probability. In Flew, Essays in conceptual analysis, Blackwell
Toulmin, An introduction to reasoning.
McEvoy: “[T]hose were just some starter questions. They were not intended as
criticism of Foster's commentary, though it could be regarded as a shortcoming
of his commentary that [Foster] provides no answer to them. Equally, [the]
questions might be asked of the reasoning of the judges. It might also be asked
why the minority of the Supreme Court did NOT canvas [the] alternative line of
reasoning [as sketched] in *challenging* the approach of the majority - for
[the alternative line of reasoning] would give an interpretation [to] the
Limitation Act and related provisions that WOULD permit the amendment sought
(and they *need* such an interpretation, because, constitutionally, UK
legislation is more supreme than the UK Supreme Court). The answer [to the
question as to why the minority did not canvas the alternative line of
reasoning to challenge the majority] *may* be that, as a matter of substantive
judgment, the claim for the solicitors's negligence regarding the estate (in a
'derivative action') is NOT the same as the claim for the solicitors'
negligence regarding beneficiaries (in the original action). But again, how to
explain or justify this? On the other hand, it looks like it is the SAME
behaviour by the solicitors that is being complained of in EACH of the two
claims. In that way, they may look like the SAME claim. On the other hand, the
*capacity* in which the two claims are made does differ, and so does the unit
[claim 1: beneficiary; claim 2: estate] in respect of which damages are sought.
In that way, they may look like [two] DIFFERENT claims. This seems to give the
Supreme Court an option as to how the Supreme Court defines "claim" for the
purposes of 19(5), and this option would surely be important to discuss and
analyse? But then, [vide] the discussion in Roberts of what constitutes a
“cause of action.” Does the discussion amount to Lord Collins *saying*
something like the following? “We judges CANNOT exactly *say* what constitutes
a “cause of action,” so as to distinguish one from another, but we know a
‘cause of action’ when we see it.” As it happens, the criticism by Foster, that
I am working on, focuses on his *concluding paragraph,* and other aspects where
his commentary throws more darkness than light [obscurus per obscurius]. But,
to be fair to Foster, in respect of the questions asked, we might note that
some of the possible shortcomings in his commentary may reflect shortcomings in
the reasoning and explanation of the judges themselves. What may be emerging is
that sometimes 'legal reasoning' may be more puzzling on close examination than
it is when superficially understood. Although the converse may also sometimes
be the case.”