Argument 101
Burden of Proof vs. Burden of Rejoinder
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What makes some arguments so energizing, while others leave you drained? Why do some arguments feel productive and when others just go in circles?
It has a lot to do with the conditions that make disagreement possible. According to the Roman rhetorician Quintilian, “every question is based on assertion by one party and denial by another.”
In other words, anytime we have a disagreement, one party is affirming a claim. The other party is negating (disputing) this assertion.
I like to think of affirmation and negation as the “protons” and “electrons” of argumentation: they can be combined in different ways to produce something more complex. This is a bit of over-simplification, but it’s a helpful way to think about argumentation theory.
The Burden of Proof (Affirmation)
In argumentation theory, the “burden of proof” rests with the party affirming a claim, not the party that denies it.1
The “burden of proof” describes the standard of evidence a speaker or writer has to meet if they want other people to consider their argument. Every discourse community has its own standards and framework for evaluating evidence and deciding which speakers have met this burden.
In a U.S. court of law, the burden of proof changes according to the situation. In criminal cases, the prosecution is required to prove guilt beyond a reasonable doubt. In civil cases, however, the prosecution only has to establish guilt according to the preponderance of evidence. The latter is a much lower burden of proof.
But however this standard is established, the burden falls on the party advancing the claim to support what they’re asserting. This is what separates a good investigative journalist from a conspiracy theorist. Good investigative journalists assume the burden of proof in their writing and support what they’re saying with evidence.
The Burden of Rejoinder (Negation)
The party affirming the claim has the burden of proof. But the party denying (negating) the claim has the corresponding burden of rejoinder, which means they must directly respond to the specific claim, evidence, or warrant being presented.
A good example of someone failing to uphold the burden of rejoinder would be “whataboutism,” which is when you respond to someone’s argument by introducing a completely unrelated topic. For example, if I say eating meat is inhumane and you respond by saying, “what about capital punishment? Isn’t that even more inhumane?” that would be an example of whataboutism.
Ad hominems, which attack a person instead of the position they’re defending, and straw man arguments, which respond to a watered-down version of what someone is actually saying, are other fallacies that happen when writers responding to a claim shirk the burden of rejoinder.
So, when we’re talking about the conditions that make a productive, “good faith” disagreement possible, we’re talking about two parties that are taking on these respective burdens: the burden of proof and the burden of rejoinder.
Clash
Assuming these respective burdens is the only way to ensure clash, which is the dynamic interaction of claims and evidence. Clash is the primary affordance of argumentation: it’s something argumentation can give us that other modes and genres of discourse can’t. Clash is what makes argumentation educational, generative, and interesting.
We can think of clash as a form of satisfaction (or jouissance) that is specific to argumentation. It’s the intellectual pleasure we derive from the dynamic exchange of ideas, the challenge of defending our position, and the opportunity to refine our thinking through engagement with opposing viewpoints.
Clash is the conflict or tension that moves the discussion forward, but it doesn’t have to be hostile or negative. When it’s created respectfully, clash infuses disagreements with positive energy. Briefly put, clash is what elevates a difference of opinion into a debate.
There is nothing more draining or exhausting than trying to argue with someone who won’t respond to what you’re actually saying. You end up talking past each other, because there’s no clash happening.
But think about the most productive disagreements you’ve ever had: the ones you enjoyed, learned something from, and left feeling more respect toward the person you were disagreeing with. These conversations can only happen when both parties are listening and responding to what the other is saying.
If we’re committed to argumentation, not just as a means of proving we’re right, but as a tool we’re using in the collective search for truth, then we need some way to ensure clash. Put differently, we need a point of stasis where disagreement can occur.
Next week, I’ll discuss an ancient technique for identifying these moments in the conversation. In the meantime, good luck with your writing!
When I use the term “proof,” I’m not talking about the distinction between proof and evidence I introduced a few weeks ago.
I know it’s a bit confusing to use the same term in two different ways but, in that post, I was distinguishing between “proof” and “evidence” to identify what distinguishes critical theory as a genre of writing. I wanted you to understand that writing long-form argument is more of an art than a science.