Katharina Stevens: Just Argumentation

This month Legal-Phi is interviewing Katharina Stevens. Katharina has held the prestigious Dworkin-Balzan Postdoctoral Fellowship at NYU up until 2017. She is now Assistant Professor of Philosophy at University of Lethbridge, Canada.


Katharina, welcome to Legal-Phi. Why did you decide to study philosophy and pursue a career in academia? And what brought you to legal philosophy?

Katharina: In Germany, philosophy is a subject in school, and that is where I first encountered it. After about three or four weeks, I decided that I would study philosophy in University, and that I would try to become a philosopher. The decision seemed to make itself. My parents convinced me to do a degree that would also enable me to teach in high-schools. That was my plan B, but I gave up on it when I decided to move to Canada to do my PhD at McMaster University. I know that one should think long and hard about the choice to go into academia, but I didn’t, it was just what I wanted to be. I came up with back-up plans, of course.

I wrote my Master’s degree in argumentation theory, a small and relatively new sub-field of philosophy and I am still just as passionate about argumentation theory as I was. But McMaster has a course-requirement attached to the PhD, and I ended up in one of Wil Waluchow’s Phil of Law classes in my first term. Thank Chance I did. Philosophy of Law shares the direct, practical connection to real-world matters with Argumentation Theory, so I was instantly attracted to it.

Most of your recent work bridges argumentation theory and legal philosophy. In your doctoral thesis you have proposed a novel account of reasoning by precedent. Could you give us a precis of how does your proposed account differ from existing ones? 

Katharina: There is a debate in the literature about reasoning by precedent. Extremely oversimplified, I can say that one side thinks that reasoning by precedent is reasoning with rules, and the other side thinks that reasoning by precedent is analogical reasoning. There are many great papers spelling out why one of the sides cannot work, and usually they try to show that this is because the criticised account cannot explain precedent-constraint well enough.

I wrote my PhD thesis defending the analogy account against its critics. But then, when I returned to it in my postdoc, I noticed that the rule-account can also be defended. So, there is no context-independent answer to whether judges should reason with rules or whether they should reason analogically when they reason with precedents. Both ways can work, and either way the judge will have the same amount of discretion (I still think that the analogy approach has the unique advantage of directing attention both to reasons for following and reasons for distinguishing, but that is a whole big argument). I think this becomes easily visible if you approach reasoning by precedent with the point of view of an argumentation theorist. We tend to see reasoning as something that happens between people, not just in the head of one person. So, when you try to describe a form of reasoning, you have to ask yourself which perspective you are dealing with. There is at least that of an arguer who is reasoning to convince others, and that of an interlocutor, reasoning to evaluate arguments. Judges who reason with precedents usually evaluate whether and how the existence of the precedent impacts their case, which means that they are in the position of an interlocutor. If they reason with rules, they will try to find the rule in the precedent in order to evaluate whether it applies to their case. If the precedent does not readily offer a fully formulated rule, then they have to use some discretion to fill out the gaps. And if they reason analogically, they have to evaluate whether this precedent can count as legally relevantly similar to this case that they are deciding right now. Which means they have to see whether those factors that the precedent judge declared legally relevant in the precedent case are shared by the present case. Again, they have to use some discretion where the precedent is vague. But it is the same amount of discretion either way, just at different places in the reasoning process. The idea that reasoning by analogy would somehow make the judge much freer to do what she wants rests, I think, on a mistake.

Still related to your work on precedent, it has been claimed that reasoning by analogy may not provide an adequate justification for judicial decisions. In a forthcoming paper, you try to rebut this criticism by appealing to some considerations about the role of the judge. Could you tell us what these considerations are and how they eliminate the worry?

Katharina: There is that worry that judges who reason analogically are not constrained in their decision-making and end up just deciding however they want. I cannot speak for all judges, cheating is always possible, but I do not think that the form of reasoning should be blamed when it happens. It is true that analogical reasoning can be very pliable – after all, the effect of analogy is that two completely different things can suddenly seem similar. That has to do with the cognitive effects of trying to understand an analogy, but I am not cruel enough to the readers to get into those now. So, if you are an arguer and are trying to make a point, you can simply choose as analogue that precedent that will create the right impression of the case at hand. And this gives you a lot of freedom.

But judges are not meant to be arguers, that is simply not their institutional role (at least not until they write their opinions). Judges are supposed to make an unbiased decision based on the arguments presented to them. They are meant to be interlocutors. And from the perspective of the interlocutor, the whole thing looks differently. The precedent is already chosen, and the claim that it is relevantly similar to the case at hand is already made. The interlocutor’s task is to determine whether this is really the case. Assuming the interlocutor operates in good faith – and that is what judges are supposed to do – she has to do this in two steps. First, she has to use the principle of charity and figure out how far the two cases really are similar. This is where those cognitive effects I did not explain come in. They let her see her case as it would have to be understood in order for the precedent to apply. And then she has to evaluate this similarity. In the end, she has to weigh the reasons for seeing the two cases as similar and the reasons against doing so. If she does this in good faith, this is a pretty constraining process. After all, she has used the analogy in order to see why someone might think the two cases similar.  She can only resist that if she can find reasons against their similarity that are weighty enough.

You have recently published a paper on Case-to-Case Arguments where you claim that there are two types of these arguments. Could you explain what case-to-case arguments are and why it is important to distinguish different types of such arguments?

Katharina: In argumentation theory, there has been a really long debate about analogical arguments, and one part of that debate is about normative arguments by analogy. Some of these arguments use fictional situations as the analogue, like for example Judith Jarvis Thompson’s famous violinist argument for the permissibility of abortion. But others use past decisions that the addressee of the argument or someone else has made in order to argue that the decision should (or could) be made again now, in this similar situation. Those are what I call ‘case-to-case arguments’.

When you read around in argumentation theory, you will see that people simply assume that these arguments contain, as a premise, that the past decision was the right one. But, as everyone who deals with precedent in the common law knows, that is not necessarily the case. Judges have to follow precedent even if they do not like the precedent decision. And this also exists outside of the courtroom, as everyone in a parenting or teaching position has probably experienced. Case-to-case arguments can be legitimate, even when the person who made the past decision now thinks that it was horrible. All you need is a second order reason why the similarity of the situations and the fact that the decision was made are relevant. So, there are two kinds of these arguments. I decided to point this out because if you are unaware of it, you can be misled with fallacies like two-wrongs-make-a-right. Case-to-case arguments are simply so common and so often legitimate that people overlook it when the decision was not right and there is no good second order reason of the right kind. And also, but this is probably only interesting to argumentation theorists, we need to change our lists of argument schemes – we need two schemes instead of one.

Besides working on argumentation theory and legal argumentation, you have also written some pieces on constitutional theory and constitutional interpretation. In one of your papers you take issue with originalism (i.e., (roughly) the idea that the meaning of constitutional provisions is rigid and established when the provisions are first enacted). Can you tell us why you think originalism is mistaken?

KatharinaI think that originalism is mistaken for all the usual reasons, but what I tried to argue against is this idea that written constitutions necessarily have clear authors, and that these authors are the framers. I am honestly not sure how well this argument works, but the thought is that we would not call the people that write down folk-tales the authors of the folk-tales in the full sense, not even when they adapt them a little. The authorship for those tales is not clear, they have developed over such a long time and through so many different story-tellers that they really do not have a single author whose intentions you can use to figure out their meanings. There are, I think, parts of constitutions that are similar. The idea of certain rights that you find in Bills of Rights and Charters, for example, have long histories, and they have gone through many hands (or mouths?). The people who write them down and integrate them into a constitution cannot claim copyright on them, so to speak. To me, it makes little sense to treat them as their authors.

Future projects? Anything you can share?

Katharina: I just finished a paper on the rule of law and opinion writing that I will present in Edinburgh on the 15th of February. I argue that it can be the right decision, even from a rule of law point of view, when a judge does not provide a general norm in her opinion after deciding a case. My reason for this again has to do with the role of the judge: When she writes her opinion, she does not thereby get to entrench the norm she might include. Later judges, who follow, distinguish, re-interpret or overrule her precedent have more influence over the fate of the bit of law she might make than she herself does. So, formulating a norm that will get whittled down slowly and cause uncertainty that way may have higher rule-of-law costs than delaying norm-formulation.

Having finished a draft on that, I think, I will now turn my attention more fully to this idea of roles, and how they influence us when we argue and reason. I have written a couple of papers on this in argumentation theory, and I want to take it further. I think there is an argument to be made that we need to get involved in argument in order to access our full reasoning capacity, and that we can do so only if we are given argumentative roles that we can be reasonably expected to fulfil. I think expecting people to argue in roles they cannot fulfil is unjust. This injustice becomes obvious, for example, when people socialized as female miss out on the chance to engage in meaningful argument because they have been taught not to be too assertive or aggressive. And the most obvious place where it appears in the law is, I think, in the situation of pro se litigants who have to plead their case in an adversarial system. They do not have the money to hire an attorney, or the education to plead their case effectively. They are guaranteed access to the court, but for that to be really meaningful, they would have to be able to fulfil an argumentative role (that is usually occupied by an attorney) that they cannot reasonably be expected to fulfil. That pro se litigants are in a bad situation, and that something has to be done is widely recognized, but I am excited to look at it from the point of view of argument-ethics.

What is your general impression of the work done by legal philosophers nowadays? Do you think the field has made some progress? Is there any approach or attitude towards philosophical problems that you think slow things down?

Katharina: Of course progress is being made, it is silly, in any field of philosophy, to think that no progress is being made simply because the big questions remain without an answer that everyone agrees to. Our understanding of legal reasoning, for example, has greatly profited from insights in the cognitive sciences about biases and analogy etc. What I would love for people to do now is to go further in the direction of thinking of reasoning in general as a group-activity. All my role-talk is supposed to slowly inch towards that. I think that the concentration on the single judge – or even the single court – slows things down. Reasoning is always done with an other in mind, and figuring out who that other is (later courts? the attorneys? the parties?) and how they influence the reasoning process is an important part of understanding legal reasoning.

Are there any papers in your field which you think are either underrated or not very well-known?

Katharina: This is not a paper that is underrated or little known in general. But I think it should make more of an impact on the literature on legal reasoning than it has so far. It is called: “Why do Humans Reason? Arguments for an Argumentative Theory”, by Hugo Mercier and Dan Sperber. The title is probably enough to show why I like the paper: these two cognitive scientists argue that reasoning has evolved as an argumentative tool rather than a truth-seeking one. They have also just published a book on the same topic, it is called The Enigma of Reason.

What was your biggest challenge as a PhD student? And now as an Assistant Professor? 

Katharina: I have done nothing to deserve this, but life has made things easier for me than it very well might have. I have always been surrounded by wonderful people and I always had great mentors – first Harald Wohlrapp, then Christopher Tindale, and then Wil Waluchow. It is amazing how much difference it makes when someone is looking out for you and warns you if you are about to make a mistake. And I have been surrounded by wonderful friends, like Matt Grellette, Maggie O’Brien and Michael Baumtrog, who are always willing to discuss an idea, read a draft and call me an idiot. But this does not change how hard it can be to face the constant possibility of failure on a scale that seems grand. If I had chosen to stay with the path towards becoming a high-school teacher, then failing – getting fired or not getting a job – would be a problem, but there is always a next try and another school. In academia, everything seems to be of monumental importance. Going on the job-market, for me, meant trying to be ok with the probability of failure. Now it is the path to tenure. I joke about ending up under a bridge, but I think we should be honest and admit that we really are afraid that could happen. I think that we share this fear is a reason for people in academia to support one another, offer to read and edit cover letters and paper drafts. We all face an increasingly difficult environment. We should stick together.

How do you usually spend your leisure time?

Katharina: I like my husband and my dogs. So, we go on walks, read books together and play video games. Right now we read Ancilliary Justice and play Nier Automata. The dogs can’t read or hold a controller, but they listen and watch, and sometimes they try to eat a book. It makes me mad, but maybe that counts as participating.

Finally, could you list two books in philosophy and two books outside philosophy that have influenced you in some way? Could you also tell us how they have influenced you?

Katharina: The two books that influenced me most inside philosophy are Harald Wohlrapp’s The Concept of Argument and Kant’s Groundwork to the Metaphysics of Morals.

The Concept of Argument was the first work in argumentation theory that I ever read, and it very much shaped the way that I look at reasoning, arguing and communication in general. It was also the first book I knew the author of, so that I could ask questions about it and disagree with a person, not just a bunch of words on paper. And in the last chapter, Wohlrapp formulates something that I had always felt, but never put in words: What it means to have faith in reason as a collective activity. I am an atheist, but I never felt that there was something missing, and what Wohlrapp writes in that chapter explained perfectly why – because the belief in human reason is just as basic and as unfounded as the belief in a deity. You also find this faith in reason in Kant’s. But there is another reason why I love that book so much: Because it is so darn beautiful. I had to teach part of the Groundwork of Metaphysics of Morals as a TA in an Intro to Ethics -course, and I tried to make an argument tree for it on the board. I am sure I messed it up, but when I was done, I took a step back, and the way the argument was built was just so elegant and beautiful. It made me even more sure that this was what I needed to do.

Outside of philosophy, I really love Terry Pratchett, and most of all probably the books about Esmeralda Weatherwax. My father gave me those books to read when I was eleven or twelve, and I always wanted to be like her: An old grumpy Lady who gets things done by being absolutely sure of herself. There is a description of her, lost in the forest. I will not get this right, but approximately, Pratchett writes that she knew exactly where she was, she was just not sure about the position of everything else. I always wanted to be like that. Who wouldn’t think that is the ideal?