The Construction of Issues: Pleading Theory and
Practice, Relevance in Pragmatics, and the
Confrontation Stage in the Pragma-Dialectical
Theory of Argumentation1
SEBASTIAN MCEVOY
Groupe de Sociologie Politique et Morale
Ecole des hautes études en sciences sociales,
105 boulevard Raspail,
75006 Paris, France
ABSTRACT. Legal theory and practice, particularly on the exchange of pleadings, are
referred to as a means of examining current thinking in pragmatics on relevance. The rules
of pleadings suggest that the concept of relevance as used in pragmatics is emptied of any
meaning and that theories of argumentation have not sufficiently taken into account the
preliminary construction which issues to be argued about require.
KEY WORDS: Pleading, pragma-dialectical theory of argumentation, relevance
The background claim, a twofold or triple one, posits that relevance is a
multiple context-bound norm, and not – as pragmatics has tended to make
it out – a single, built-in discourse constraint (Moeschler, 1985) or communication principle (Sperber and Wilson, 1986).
There are innumerable situations in which the issues to be discussed
have been set down beforehand. And this preliminary definition of the questions at issue restricts what the participants can say: they must stick to the
agenda of the meeting.
There are also innumerable situations in which the restriction of what
is to be discussed is implicit. If I walk into a shop and ask for some change
for the parking-meter, I may feel myself obliged to justify or excuse this
in some way, not if I want to buy an article which the shop carries. The
restriction in that example is written into the setting of the exchange.
Relevance, understood in this way, is indeed a norm, and not – as pragmatics has claimed since Grice (who did not view it as such, Grice, 1975)
– a built-in conversational constraint or principle. The restriction on the
relevant issues acts as a rule which participants must observe or else justify
their departure from, failing which they may be ill-treated in some way or
another. If I am not careful about how I do it, the shop-keeper may be rather
hostile at my asking him for change.
Moreover, the norm of relevance varies in strictness: it is not one but
multiple. The shop-keeper may well not be hostile after all. And there are
Argumentation 13: 43–52, 1999.
 1999 Kluwer Academic Publishers. Printed in the Netherlands.
ARGU
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ART. NO. 50
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situations, such as a dinner, in which if you stick to a point, you may well
be thought a bore, even if abrupt departures from what others say is offhand.
The foregrounded claims will be, first, that accounts of the conditions
of relevance in pragmatics are insufficient to explain the striking out of a
statement as irrelevant and, second, that argumentation theory has not
sufficiently considered the preliminary construction which the local implementation of a norm of relevance requires.
In other than judicial contexts also, utterances may be declared irrelevant and the issues relevant in the given discussion may have been predefined in a preparatory meeting – itself governed by pre-established rules
on turn-taking and voting force – organised to set up the agenda of the
meeting proper; and the rules controlling that preliminary meeting may
themselves have been instituted in the course of yet another ruled-governed
dispute, and so on. But here, common law pleading theory and practice will
be referred to as support for the two claims.2
The common law makes out getting parties to agree on which question(s)
to resolve at the trial to be – at least sometimes – no easy thing. There must
be pre-trial, ruled-governed proceedings, called the exchange of pleadings, to force them into that minimal agreement or, in technical language,
to join issue. Otherwise the parties, uncertain as to which standpoint to
attack or defend, would have nothing to guide themselves by in their quest
for arguments, and, similarly, the court would be at a loss as to which
question(s) to resolve.
The rules governing the exchange of pleadings suggest that relevance
is not a built-in communicational constraint or principle: it is a norm of
conduct, from which parties can deviate, intentionally or unawares, but
which they must be made to observe, if their conflict is to be brought to a
close fairly and economically.
The main reference for pleading theory and practice will be Stephen’s
Treatise. The principles have remained the same (Harwood and Harwood,
1960), even if the rules have changed considerably since the nineteenth
century.
The main account of relevance in pragmatics will be Moeschler’s. Van
Eemeren’s and Grootendorst’s pragma-dialectical theory (1992), which like
Moeschler’s theory integrates the interactional approach to discourse, will
be the reference for the theory of argumentation.
1. RELEVANCE IN THE LAW AND IN PRAGMATICS
The contrastive analysis of a few examples will show how pragmatics,
concerned with ordinary conversation, can make out what is irrelevant in
the law seem relevant and cannot account for the striking out of an utterance as irrelevant in the law, which thus appears as having another standard
THE CONSTRUCTION OF ISSUES
45
of relevance. This should be sufficient to show that relevance is not a single
standard.
Moreover, the fact that irrelevance in pleadings is possible and may lead
to an amendment of the pleadings at the cost of the party whose pleadings
have been struck off shows that the standard here is a norm, not a mere
constraint.
Following that first argument, the contention will be that the account of
relevance in pragmatics empties the concept of meaning.
It will be assumed here that what Moeschler (Moeschler, 1985, pp. 115–
119) calls cotextual appriopateness (appropriété cotextuelle) makes for what
Sperber and Wilson call relevance.
I
Cotextual appropiateness involves an ordered set of conditions. First, it
requires (A) and (B), the latter being a weaker requirement than the former:
(A) cohesion.
(B) coherence.
Second, conversational (A) cohesion and (B) coherence – both within an
exchange and within the interventions constituting an exchange – must
fulfill respectively, on the one hand, (A1) and (A2) and, on the other hand,
(B1) and (B2), (B2) being a weaker and less general requirement than (B1):
(A1) a thematic condition.
(A2) a propositional content condition.
(B1) an illocutionary condition.
(B2) an argumentative-(co)orientation condition.
A responsive allegation in an exchange of pleadings – or, in Moeschler’s
terminology, a reactive intervention – can fulfill conditions (A1), (A2) and
(B1), and yet be held irrelevant, or as pleading theory and practice say not
pertinent or immaterial, which means – if Moeschler’s account is satisfactory – that the standard of relevance in ordinary conversation is weaker
than in pleadings. (Condition (B2), which is a constant requirement for a
coherent intervention, need not be retained for the analysis of relevance in
pleadings, because it is not a requirement for a coherent exchange: it is a
requirement only for the positive resolution of an exchange, that is when
the speakers come to an agreement. The joinder of issue, which the
exchange of pleadings aims to achieve, means that the parties have come
to an agreement as to what they do not agree about: to simplify, let us say,
in Moeschler’s terminology, that pleadings are designed to bring about a
negative but a restricted negative resolution of the exchange.)
Taken from Stephen’s comment on rules which tend to secure the materiality of the issue (Stephen, 1838, p. 269), exchange [1],3 in which P stands
for the plaintiff and D for the defendant, concerns an action in tort for
assault and battery:
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[1]
(P1) D agressed P.
(D1) A judgement was recovered (obtained) and execution
issued thereupon against X; and P, to rescue X’s goods from
the execution, assaulted the bailiffs (court officer); and in aid
of the bailiffs, and by their command, D molliter manus
imposuit (‘gently’ or justifiably laid hands) upon P, to prevent
P’s rescue of the goods.
(P2) The bailiffs did not give the command.
Is (P2) pragmatically relevant? (A1), the thematic condition, is fulfilled,
as the discursive theme in (P2) is also present in (D1): the bailiffs’
command. So is (A2), the propositional content condition. For this be fulfilled, there must be a semantic relationship between (D1) and (P2), which
can either be oppositive (contradiction), implicative (inference) or paraphrastic (synonymy). Here (P2) contradicts (D1): by the bailiffs’
command/not by the bailiffs’ command. What about (B1), the weaker
illocutionary condition? (D1), viewed here as an initiative intervention, is
an assertion which calls for either a positive or a negative evaluation in
the reactive intervention, which evaluation in turn can either be on the
utterance (énoncé) or on the act of uttering (énonciation): here (P2) can
be characterized as a negative utterance evaluation on part of (D1) (by their
command). (P2) therefore fulfills all the required conditions for pragmatic
relevance.
Is (P2) legally relevant? The rules of pleading have more specific names
for the different turns in the exchange (McEvoy, 1991, pp. 252–254). (P2)
is a replication to (D1), which is a defence against the plaintiff’s initial
declaration (P1). Moreover, the rules of pleadings specify the categories
of moves which the opponent’s prior move allows (McEvoy, 1991, p. 255).
(D1) could have consisted either in (I), (II) or (III):
(I) a traverse (a denial of the allegations in (P1)).
(II) a plea of confession (of (P1)) and avoidance (of the usual legal
consequences of (P1) through an allegation of new facts).
(III) a demurrer (an objection that (P1) does not allege actionable facts,
has no legal effect).
And in fact, (D1) amounts to (II). (P2) could have consisted either in (I9)
a traverse of the new facts alleged in the plea of confession and
avoidance or in (III9) a demurrer to that plea of confession and avoidance
(an objection here that the law does not allow the avoidance on those new
facts, which are therefore without legal effect). And in fact consists in (I9),
a partial denial of the new allegation. What happened after (P2)? The defendant demurred, and (P2) was held to be bad. Why? Because it was immaterial or not pertinent, that is devoid of legal effect: for even without the
command of the bailiffs, says Stephen, the defendant might lawfully interfere to prevent a rescue, which is a breach of the peace.
THE CONSTRUCTION OF ISSUES
47
II
The requirement of relevance is then stricter in pleadings than in ordinary
conversation. The point to be contended now is that the account of relevance in pragmatics, which posits that it is a built-in conversational constraint, empties the concept of all meaning.
For the concept to have meaning, one should be able to strike off as irrelevant at least some utterances; but for relevance to be a built-in conversational constraint, the striking off of an utterance as irrelevant should be, at
worst, exceptional. There are clear instances of utterances which are prima
facie irrelevant. But the theory of indirection allows their being held, after
all, in some way relevant. That is the case with (2) in exchange [2],
modelled on (2) in exchange [3], one of Moeschler’s examples (Moeschler,
1985, p. 116):
[2]
(1) Do you like caviar?
(2) I don’t like Rolls-Royces.
[3]
(1) Do you like haddock?
(2) I don’t like smoked fish.
Is (2) in [3] relevant? Moeschler uses it to illustrate the fulfilment of
(A2), the propositional content condition for cohesion, which requires a
semantic relationship between interventions of an exchange and between
the constituants of an intervention. There is prima facie no semantic relationship between (1) and (2). But Moeschler claims that there is: there is
an indirect semantic relationship. All one needs to have for this relationship to become apparent is assumption (a):
[3]
(a) Haddock is smoked fish.
The assumptions reinforce the fulfilment of both conditions (A1) and (B1):
as for (A1), the common discursive theme turns out to be not only my likes
and dislikes but my liking haddock; as for (B1), I am not only answering
a request for information but providing the requested information.
On those lines, surely (2) in [2] is also relevant. All I need claim is that
there is an indirect semantic relationship between (1) and (2) on the ground
of assumptions (a) and (b):
[2]
(a) Caviar is a luxury.
(b) Rolls-Royces are a luxury.
The only difference in the analysis is the number of required assumptions
but Moeschler does not state that beyond a certain number of required
assumptions, an intervention can be struck off as irrelevant.
The analysis of relevance in pragmatics thus empties the concept of all
meaning. Sperber and Wilson (1986), of course, have brought in an
economic principle: the cognitive effort required must be proportionate to
the contextual effect obtained; but, first, there are as many steps of assump-
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tions in examples Sperber and Wilson give and, second, there is no way
of assessing either the effort nor the effect. The consequence is that any
intervention or utterance can be interpreted as being relevant, and striking
off an intervention or utterance as irrelevant may always be objected to.
2. RULES FOR THE CONSTRUCTION OF ISSUES
Modern argumentation theory has devoted no more attention than ancient
rhetoric to a preparatory condition for argumentation: the agreement of
the parties in conflict on the question(s) about which they have different
standpoints. Ever since the Middle Ages, common law civil procedure has
required that the parties reach a preliminary out-of-court agreement on the
question(s) to be argued at the trial and to be resolved by the court. In
technical language, the parties must join issue before their case can be
argued and judged.
The rules for the exchange of pleadings are simpler today, but their traditional complexity suggests that the joinder of issue is not easily reached.
To take the pragma-dialectical theory of argumentation, the rules of
pleading make out the first stage in a conflict-resolution aimed discussion,
the confrontation stage, to be exposed to ills other than the argumentum
ad baculum and argumentatum ad hominem fallacies and lead one to view
differently rule 3, the relevance rule, and rule 10, the linguistic usage rule,
which are valid at all discussion stages:
Rule 1. Parties must not prevent each other from advancing standpoints
or from casting doubt on standpoints.
Rule 3. A party’s attack on a standpoint must relate to the standpoint
that has indeed been advanced by the other party.
Rule 10. A party must not use formulations that are insufficiently clear or
confusingly ambiguous and a party must interpret the other party’s
formulations as carefully and accurately as possible.
Stephen (1838), in chapter II of his Treatise, attempted to rationalize the
rules of pleading which he gleaned from the Reports and the treatises or
abridgments on the the English law: the first sections (I–IV) are titled as
dealing with rules aimed at obtaining an issue, and an issue having certain
features; the others (V–VII), as dealing with rules which the drafting of
pleadings must observe; but the distinction is immaterial, as the features
of the issue result from those of the pleadings.
I
The purpose of pleadings is to have the parties join issue (section I), the
moves for which the analysis of exchange [1] gave an opportunity to
describe, and moreover to ensure that an issue has the following features:
it must be material or legally relevant (section II), a point also seen in the
THE CONSTRUCTION OF ISSUES
49
analysis of exchange [1], it must be single (section III) and certain (section
IV), that is place, time, quantity, etc. where relevant must be stated. Let
us consider the second feature: singleness, which is also pursued at later
stages of judicial proceedings.
The issue was to be single, or more precisely there was to be a single
issue per claim, which means that for a same claim,4 there could not be
several declarations nor several defences, except if there were several
defendants who might each put forward a separate defence. But where
several distinct claims were allowed to be pursued cumulatively in the same
suit, as when several trespasses had been committed, the pleadings could
result in a separate issue on each cause of action.5 Such was the general
rule against doubleness or duplicity. Baker (Baker, 1979, p. 77) understands
it as a means of preventing the nightmarish possibility of having pleadings multiply in geometric progression.
Today, and since the statute 4 Anne, c. 16, s. 4, it is lawful for a defendant to plead several matters.
In terms of Van Eemeren’s and Grootendorst’s classification of disputes,
the change may be expressed in the following way. The old rule allowed
the joinder of issue on a single claim to constitute a single mixed dispute,
involving a positive standpoint (+ p) and a negative standpoint (– p)
with respect to the proposition meant to support the claim, or inversely
(– p/+ p). The new rule allowed multiple mixed disputes (+ p/– p; + q/– q;
etc.).
The attempt to reduce a case to a single point, despite these changes, is
still current, and can be observed at later stages in judicial proceedings. In
Read v. Lyons (1947), for example, Viscount Simon was of the opinion that
strict liability is conditioned by several elements, among which (i) and
(ii):
(i) escape from the land of something likely to do mischief if it escapes.
(ii) non-natural use of the land.
But he added immediately:
It is not necessary to analyse this second condition on the present occasion, for in the
case now before us the first essential condition of “escape” does not seem to me to be
present at all.6
And there are many instances such as these in the Reports, opinions on
questions thus set aside being one category of obiter dicta, i.e. opinions
that cannot bind future decisions: the move makes for economy, and sometimes elegance in decision-making.
II
Curiously, Stephen comes up with headings in his sections on pleadings
(V–VI), rather than those on the issue (I–IV), which anticipate Grice’s
classification of conversational maxims (especially the subclassification
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under the maxim of manner) and rules 3 and 10 of the pragma-dialectical
theory of argumentation quoted previously:
Section V. Of rules which tend to prevent obscurity and confusion in
pleading.
Section VI. Of rules which tend to prevent prolixity and delay in pleading.
Seeing their head-titles, these rules should correspond to Grice’s stylistic maxims of manner and the rules in section V also to Van Eemeren’s
and Grootendorst’s rule 10 requiring clarity. In fact, a closer look brings
out that they are also related to the other Gricean maxims, particularly as
a verbally brief utterance, complying with one of Grice’s maxims of
manner, can be substantially prolix, and thus infringe upon Grice’s manner
of quantity. I have discussed this point elsewhere (McEvoy, 1993, pp.
118–123).
There is one rule from section V which is of particular interest for pragmatics, and for the theory of argumentation:
Rule III. Pleadings must not be argumentative.
In other words, Stephen (Stephen, 1838, pp. 411–412) comments, pleadings must advance their positions of fact in an absolute form, and not leave
them to be collected by inference and argument only. Now this rule is quite
contrary to van Eemeren’s and Grootendorst’s rule 10, as they do allow
implicatures, i.e. indirect statements of standpoints, while also pointing
out the fallacies they may entail (Van Eemeren and Grootendorst, 1992,
pp. 196–207).
Stephen’s rule rests on the distinction between pleas and arguments:
pleadings must advance only pleas, and arguments must be left for the
hearing in court. That is so even when the argument clearly implies the
plea, which is the case for (D1) in [4], an exchange of pleadings involving
an action of trespass (Stephen, 1838, pp. 412–413):
[4]
(P1) D took and carried away P’s goods.
(D1) P never had any goods.
Clearly, if P never had any goods, D could not have taken and carried
them away, which amounts to a traverse of the declaration. But the court
remarked: “this is an infallible argument that the plaintiff is not guilty,
and yet it is not a plea”.
The prohibiting of argumentativeness evinces the characteristic formalism of pleadings, and more generally the forms of action proceedings
upon which common law was founded: it is as if the rules of pleading
denied the inferential competence of the parties, or as if the legal system
of which pleadings were a part could not cope with anything but the
explicit.
There is another reason to Stephen’s rule against argumentativeness,
which he states for the rules in section VI on prolixity: the risk it creates
of delaying the emergence of an issue or of closing the exchange on an
irrelevant point. In [4], (P1) alleges actionable facts, since (D1) does not
THE CONSTRUCTION OF ISSUES
51
demur. P could have traversed (D1), as in (P2), but the clash of standpoints (D1) and (P2) would have meant slipping from the relevant issue
(I1) to the irrelevant issue (I2):
[4]
(P2) P did have goods.
(I1) Did D take and carry away P’s goods?
(I2) Did P have any goods?
There is then behind the rule against argumentativeness the fear of obtaining
an irrelevant issue or of slipping from one question to another indefinitely.
The purpose of the rules of pleading, this rule shows again, is to force
the parties as quickly as possible into what Van Eemeren and Grootendorst
call a single mixed dispute or, in more recent practice, a multiple mixed
dispute on the main propositions, and not on subordinate arguments. And
this as a prerequisite for the holding of a resolvable critical discussion.
*
Legal theory and practice, and in particular on pleadings, have been used
here to examine current views in pragmatics and the theory of argumentation, and in particular the theory of relevance.The confrontation has led,
first, to criticize the criteria of relevance in pragmatics as being too loose
and making the striking out of interventions or utterances as irrelevant
theoretically unjustified (although a common practice in innumerable
situations) and, second, to bring out the complexity involved in the construction of an issue, that is the question by which the relevance of arguments is to be assessed, a point which the theory of argumentation, more
concerned with the argumentation stage, has tended to set aside.
NOTES
1
The first version of this article was read at the Third International Conference on
Argumentation (1994) in Amsterdam and published in the Proceedings of the conference,
Amsterdam: Sicsat, 1995. For further development on rule-governed disputes: McEvoy 1998.
2
Founded on centuries of thought on judicial conflict-resolution, legal theory and practice
are here used as a means of examining current thinking in pragmatics. There is possibly some
form of circularity in this. Legal theory and practice become relevant to pragmatics because
pragmatics has constructed issues and concepts which allow a reading of legal theory and
practice in terms which happen to make them relevant to pragmatics.
3
The examples of pleadings are here simplified: in Latin till 1731, they remained extremely
formal until the second half of the ninenteeth century when demurrers for lack of form ceased
to be allowed.
4
In law, the term claim is ambivalent: it can refer either to what P asks for (e.g., damages)
or to the reason why he is, or thinks himsef, entitled to it (i.e., the cause of action). Here,
it is to be taken in the first sense.
5
The declaration was then made up of different parts or counts corresponding to the cause
of action for each claim or part of the total claim.
6
Read v. Lyons (1947) A.C., 156, at 168.
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