Institutional Constraints of Topical Strategic Maneuvering in Legal Argumentation. The Case of ‘Insulting’
© Springer International Publishing Switzerland 2015
Thomas Bustamante and Christian Dahlman (eds.)Argument Types and Fallacies in Legal ArgumentationLaw and Philosophy Library11210.1007/978-3-319-16148-8_55. Institutional Constraints of Topical Strategic Maneuvering in Legal Argumentation. The Case of ‘Insulting’
(1)
Erasmus School of Law, Erasmus University College, Erasmus University Rotterdam, Rotterdam, The Netherlands
Abstract
Strategic maneuvering refers to the efforts parties make to reconcile rhetorical effectiveness with dialectical standards of reasonableness. It manifests itself in topical selection, audience-directed framing and presentational devices. In analyzing strategic maneuvering one category of parameters to be considered are the constraints of the institutional context. In this paper I explore the institutional constraints for topical selection for the legal argumentative activity type insulting. I will make a distinction between statutory constraints, constraints developed in case law and constraints regarding language use and the logic of conversational implicatures.
Keywords
Conversational implicaturesInsultingLegal argumentationSpeech act theory5.1 Introduction
Frans van Eemeren explains in Strategic Maneuvering in Argumentative Discourse (2010, p. 40) how the theoretical reconstruction of argumentation should incorporate strategic maneuvering of parties in a discussion. Strategic maneuvering refers to the efforts parties make to reconcile rhetorical effectiveness with dialectical standards of reasonableness. It manifests itself topical selection, the audience-directed framing of the argumentative moves, and in the purposive use of presentational devices. In analyzing strategic maneuvering the following parameters must be considered: (a) the results that can be achieved, (b) the routes that can be taken to achieve these results, (c) the constraints of the institutional context and (d) the mutual commitments defining the argumentative situation (Van Eemeren 2010, p. 163). In chapter 10 of his study – ‘Setting up an agenda for further research’ – Van Eemeren proposes further research to the theoretical exploration of these four parameters for specific argumentative activity types. In this paper I want to do this for a specific legal argumentative activity type: the discussions about the accusation of insulting. In these discussions there is often disagreement because language users can opt for indirect insulting. The problem of indirect insulting is that there is a difference between sentence- and speaker meaning. This difference results in problems regarding the interpretation and reconstruction of the argumentation for and against the accusation of insulting. This aspect of insulting has received little attention in legal research and it is my aim in this contribution to solve some of these problems by providing a theoretical framework for the analysis of strategic maneuvering in legal discussions about insulting, using the parameters distinguished by Van Eemeren. I will focus on topical selection and the parameter institutional constraints by giving a specification of the argumentative activity type adjudication in cases about insulting and an analysis of the constraints of this activity type. I will make a distinction between statutory constraints, constraints developed in case law and constraints regarding language use and the logic of conversational implicatures.
5.2 The Statutory Constraints of the Institutional Context
In order to shed some light on the constraints of the institutional context let us first take an example of an accusation of insulting, taken from Dutch case law. 10 March 2009 the Supreme Court of the Netherlands ruled in a case about the accusation of insulting. The case was about article 137c of the Criminal Code, which makes insulting statements about a group of people a crime. The Supreme Court acquitted a man who stuck a poster in his window with the text ‘Stop the cancer called Islam’ of insulting Muslims. According to the district court and the court of appeal, this statement was insulting for a group of people due to their religion, considering the strong connection between Islam and its believers. But the Supreme Court argued that criticizing a religion, is not automatically also insulting its followers. According to the Supreme Court the appeal court gave too wide an interpretation of the expression ‘a group of people according to their religion’ in Article 137c. People expressing themselves offensively about a religion are not automatically guilty of insulting its followers, even if the followers feel insulted. The Supreme Court ruled that ‘the statement must unmistakably refer to a certain group of people who differentiate themselves from others by their religion’. While people may not insult believers, they can insult their religion. The sole circumstance of offensive statements about a religion also insulting its followers is not sufficient to speak of insulting a group of people due to their religion.
Discussions about the accusation of insulting can be analysed as species of the argumentative activity type adjudication. Van Eemeren argues that argumentative discourse in practice takes place in different kinds of activity types, which are to a greater or lesser degree institutionalized, so that certain practices have become conventionalized. Activity types and the speech events that are associated with them can be identified on the basis of careful empirical observation of argumentative practice.1 One of the activity types Van Eemeren (2010, p. 147) distinguishes is adjudication:
Now how is the practice of discussions about insulting conventionalized? Which institutional rules and constraints are relevant? In the following I will make a distinction between three types of rules: statutory rules, rules from case law and rules regarding language use.
Adjudication aims for the termination of a dispute by a third party rather than the resolution of a difference of opinion by the parties themselves. It is commonly understood as taking a dispute to a public court, where a judge, after having heard both sides, will make a reasoned decision in favor of either one of the parties. The judge determines who is wrong and who is right according to a set of rules. Most of these rules are tantamount to specifications of rules for critical discussion aimed at promoting that the dispute be terminated in a reasonable way.
In the first place there are statutory rules about this criminal act in the penal code. The relevant statutory rule in the example ‘Stop the cancer called Islam’ is Article 137c of the Dutch Penal Code:
This rule contains the following partially complex necessary conditions for the application: (1) there is an act of insulting of (2) a group of people, (3) there is an intention to insult, (3) the insult is in public, (4) verbally or in writing or image, (5) because of race, religion or belief, or hetero- or homosexual nature or physical, mental, or intellectual disabilities. This structure implies that a successful defence of the standpoint that someone is guilty of the criminal act insulting contains a coordinative argumentation of five arguments based on the five necessary conditions in the norm. A successful attack of this standpoint results in single or multiple argumentation, based on a refutation of one or more of the five necessary conditions.
Article 137c
He who publicly, verbally or in writing or image, deliberately expresses himself in a way insulting of a group of people because of their race, their religion or belief, or their hetero- or homosexual nature or their physical, mental, or intellectual disabilities, will be punished with a prison sentence of at the most one year or a fine of third category.
5.3 Constraints Developed in Case Law and Linguistic Constraints
In the second place there are rules developed in case law. These rules refine and specify the five necessary conditions, but the case law about 137c also resulted in a new condition for the application. According to the rules from case law about the application of article 137c three questions should be answered. The first question is whether or not an utterance is an insult and whether or not the other conditions of 137c are fulfilled. If the utterance is an insult and the other conditions are fulfilled, the next question is whether or not the utterance is part of a public debate. And if the insult is an utterance in a public debate the third question is whether or not the utterance is unnecessary offensive.