Monday, September 19, 2005

The classic straw man argument

If you are teaching a class that involves the use of logic in its subject matter, you might want to clip out this article on foreign rulings applied to the law of the United States for its prime example of the classic "straw man" fallacy. Here's the argument as presented in the article:

Perhaps we prefer the more restricted judge, closed up in chambers lined with American texts, denying himself the indulgence of literary allusions and citing only the binding precedents, lest it appear that he gave too much weight to something he found merely interesting. John Roberts offers to be that man, to take his overflowing intellectual gifts and submit to the rigorous practices of that cloistered life.

I deeply respect Judge Roberts and the conception of judging that he will bring to the court. But I also think that he will need to interact with other judges who do things differently, who open their minds to the opinions of the world and bring some fresh thinking back to constitutional interpretation. There is, I suspect, no ideal judge, but there is an ideal court: one composed of a variety of judges, compelled to talk to each other.

Promising scrupulous attention to the scriptorium in addition to interacting with his peers in a search for fresh thinking is certainly the recipe for the ideal medieval monk; apparently the author confused Judge Roberts' nomination to the Supreme Court with his potential promotion to abbot of the local monastery.

The straw man argument here, in the context of the role that foreign laws should play in the judgement of cases made by domestic judges, is that any judge who isn't considering foreign laws in his or her deliberations is deliberately removing himself or herself from the judicial mainstream by exclusion. The fallacy is the exclusion of the possibility that a judge who is in touch with the wide range of contemporary legal thought may still object to citing foreign laws in his or her decisions as a matter of principle. The author's case that such citations of foreign laws would be essentialy decorative -- akin to the illustration of initial letters in medieval manuscripts -- simply makes no effort to address Roberts' countering position seriously.

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