Miscellaneous

This morning?s post about the Conan brief prompted me to remember Hegel?s theory of dialectic, something I learned in seminary philosophy courses back in the 1970s. Professor Eric Steinhart sums up the process of hegelian dialectic this way:

?Hegel stresses the paradoxical nature of consciousness; he knows that the mind wants to know the whole truth, but that it cannot think without drawing a distinction. Unfortunately, every distinction has two terms, every argument has a counter-argument, and consciousness can only focus on one of these at a time. So it fixes first on the one, then under pressure fixes second on the other, until it finally comes to rest on the distinction itself. Hegel refers to this process of alternation and rest as dialectic. Dialectical motion has three stages: THESIS, ANTITHESIS, and SYNTHESIS.?

Analyzing the arguments about emotion in a legal brief in hegelian terms, we might see:

Thesis: MoneyLawyer?s argument.

Antithesis: Scott Greenfield?s counterpoint.

Synthesis: Bryan Garner?s recommendations for evoking an emotional response.

Notice the persuasive power of the dialectic. When three viewpoints are presented in dialectical fashion, the synthesis usually appears to be the most sensible of the three. In The Conan Brief, if you read all three positions, you probably concluded that Garner?s is the best, and not just because he?s Garner.

Appellate judges sometimes use dialectical reasoning: examining each of two opposite positions, identifying the advantages and disadvantages of each, and fashioning a new rule of law designed to retain the advantages while avoiding the disadvantages. But lawyers rarely use such arguments. Indeed, dialectical reasoning is probably not apt for most legal arguments. But if you?re arguing the rare case that will make law, you might consider a dialectical argument, to present your proposed rule of law as the most reasonable.