Legally Speaking: Public Perception and the Fine Print of the Law

Abstract

Legal argumentation operates internally, in the construction of decisions, and externally, in the communication of those decisions. In this paper, I am interested in the external communication of legal decisions and the standards they assume. Treating “fine print” as a metonym that stands for much more than just contract disclosure, I explore what legal argumentation highlights and ways in which it marginalises features that a fully informed public should reasonably require for its own deliberations. In the course of this, I consider the nature of the “reasonable person” that the law addresses.

KEYWORDS:

• argumentation
• fine print
• informed consent
• legal rules

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

Notes

1 Justice Christopher Grauer, as reported in the Vancouver Sun, March 5, 2020. https://vancouversun.com/news/local-news/ian-mulgrew-fine-print-liability-waivers-not-good-enough-says-appeal-court.

2 See also Gilbert and Sullivan (2019).

3 Elsewhere, Meyerson allows that no contract “can be fully specified. There are simply too many conditions and contingencies regarding even the simplest transaction” (Meyerson 1990, 587).

4 Hence, a distinction maintained throughout Perelman’s work between argumentation and demonstration. The latter involves the self-evident, about which argumentation is unnecessary. The principles of science lie (perhaps controversially) within the domain of demonstration; but the principles of law lie clearly within the domain of argumentation.

5 As I note elsewhere (Tindale 2015), this triad fits nicely with the three levels of Habermas’ lifeworld, with its objective world that is a source of claims about facts, its intersubjective world of norms and values, and its subjective world of private thoughts.

6 “A plausibilistic argument is one that yields a conclusion that is an assumption that seems to be true, on the basis of the evidence at some point in a proceeding, but may be subject to a retraction if new information comes into the case at a later point in the proceeding” (Walton 2008, 62).

7 “Primary” in the sense that they provide foundational treatments that become influential in their respective fields, even though they base those treatments on work developed elsewhere.

8 The scheme itself is elaborated as follows:

• Argument from Witness Testimony

• Position to Know Premise: Witness W is in a position to know whether A is true or not.

• Truth-Telling Premise: Witness W is telling the truth (as W knows it).

• Statement Premise: Witness W states that A is true (false).

• Generalisation: If a witness W is in a position to know whether A is true or not, and W is telling the truth (as W knows it), and W states that A is true (false), then A is true (false).

• Conclusion: Therefore (defeasibly) A is true (false). (Walton 2008, 45).

9 A rebuttal directly attacks a claim and serves as a reason for rejecting it; an undercutter attacks the connection between a premise and a claim, thus rendering the claim questionable but not providing sufficient reason to reject it.

Additional information

Notes on contributors

Christopher W. Tindale

Christopher W. Tindale is Director of the Centre for Research in Reasoning, Argumentation and Rhetoric, and Professor at the Department of Philosophy, University of Windsor, Canada.