A common problem I come across in debates is the accusation that I’m talking or thinking too much “like a lawyer” – the implication being that legal concepts and analogies belong solely in the realm of litigation and should be left there.
I always try to remain calm and logical in debates, but this accusation is second only to the “straw man” fallacy when it comes to genuinely winding me up in that environment.
The argument usually raises its head when I use terminology often (though not exclusively) found in law – such as the phrase “burden of proof” – or when I use a hypothetical court case as an analogy. For example, my opponent might make an assertion in support of their stance on an issue and I might attack that assertion as being unsubstantiated, e.g. the assertion that violent computer games influence their players to act violently in real life. I will point out that they can’t prove that this is true, which means their argument is invalid. They will retort that I can’t prove that it’s *not* true, I will respond that the burden of proof is on them not me as they are the ones making an assertion of fact, and hey presto: “this isn’t a court case”.
Here’s my problem with this line of argument: the only part of courtroom advocacy that isn’t always applicable outside of the courtroom is the specific content of the black letter law itself.* Other than that, it’s merely a debate at a very high level – higher than most people can be bothered with. I have to focus like a laser on *exactly* what the issue is. If I make an assertion then I have to back that assertion up with something. And any evidence I do put forward in support of my position will be rigorously analysed. What I can’t do is demand that my interlocutors simply take my word for it and start crying and calling them names if they don’t. You put up or shut up.
It seems to me that, as long as you actually believe in liberal democracy, this way of thinking and arguing is no less applicable to the social sciences than it is to the law, yet people do often seem to apply a more lax attitude towards proof. And it matters, because every time you ask the government to ban X or to regulate Y you are interfering with people’s freedom to do as they please. If there is no compelling evidence that violent video games cause their players to behave violently in real life then there is no proper basis for banning them. If there is no compelling evidence that exposure to porn causes viewers to adopt misogynistic attitudes then there is no proper basis for banning it. And I ask my readers (whomever they may be) to bear in mind that correlation does not imply causation when considering those examples.
The result of applying a less rigorous attitude towards debates is that people simply spout platitudes at each other, talk past each other and get wound up. Take the abortion debate, for example: the pro-choice camp say it’s about a woman’s right to have dominion over her own body and accuse their opponents of misogyny, but that’s not the basis on which the pro-life camp oppose abortion. They oppose it because, in their opinion, a foetus is a human life indistinguishable from any other and it is therefore wrong to terminate it. Any pro-choice argument – such as the sympathy we may feel for a young woman who didn’t feel ready to raise a child or even one who had been raped – would go up in smoke if we were talking about killing a baby who had already been born, even for the most ardent feminist, so the pro-life camp would argue that abortion is no different in principle, it’s just that out of sight (i.e. inside the womb) is out of mind. So the debate actually turns on two simple questions – does a foetus count as a human life, and if not, why not?
I’m a big fan of the philosopher and neuroscientist Sam Harris. He is not a lawyer, but I feel he argues on a level rarely seen outside of the law. He has attracted a lot of false accusations of Islamphobia and racism because he criticises Islam and deems it more dangerous than other religions. Sometimes I think the people making these accusations are deliberately libelling him, but sometimes I think they’re just too thick to argue on his level and understand the subtle distinctions he is making. To paraphrase his interview with Cenk Uygur from the Young Turks, in which he tried to clear the air on this issue:
“I think it is fine to assert that some religions are more worthy of criticism than others. For example, Mormonism is objectively less likely to be true than Christianity, because while it’s unlikely that Jesus will come back one day, it’s even less likely to say that he will come back in Jackson County, Missouri.”
Cenk’s response was “Lol Sam, how can Jesus’ coming back to Missouri be any less likely than his coming back to Jerusalem”. But that’s not what Sam said. He didn’t say anything about Jerusalem. Jerusalem vs Jackson County is not the point.
Ultimately I think the “this isn’t a court case” argument is simply an excuse. If you use it then you are conceding that you can’t or won’t back up what you’re saying. Game over.
* A slight caveat here is that the black letter law sometimes IS relevant in debates. For example, people often rant about the Human Rights Act without knowing what it actually says.