Arguing in the Alternative

Arguing in the alternative is a technique often used in criminal law to pre-emptively address the concerns of the opposing counsel by stating their presumed rationale and demonstrating its flaws.

Arguing in the alternative can also be used to demonstrate the flaws of a parallel arguement by demonstrating that even if a primary clause is plausible, its conclusion is not.

However, this technique has been found in studies to be confusing to juries, who feel they are being told mixed messages, or that the defendant has compromised their liability by acnowledging the possibility of a primary clause. Because of this, arguing in the alternative is considered a risky technique.

Contemporary Uses

One of the more humorous examples of arguing in the alternative is Bart Simpson’s line, “I didn’t do it, no one saw me do it, you can’t prove anything!”

Critics have also pointed out the use of the technique by the current American administration.

Specifically, the case for the War in Iraq is cited as an example of claiming that causus belli is present, but yet cannot be demonstrated without the call for action in question.

“Facing clear evidence of peril, we cannot wait for the final proof – the smoking gun – that could come in the form of a mushroom cloud,” said Bush. “To wait for certainty is to wait for disaster.”

Others have pointed to the detention and transfer of detainees in the War on Terror. In the Committee on Legal Affairs and Human Rights’ report entitled Secret detentions and illegal transfers of detainees involving Council of Europe member a section entitled “The dynamics of truth” descibes “How President Bush’s disclosure of the Central Intelligence Agency (CIA) secret detention programme has accelerated the dynamics of truth” in section 24:

The end was portrayed as paramount – “we’re getting vital information necessary to do our jobs, and that’s to protect the American people and our allies”; the means of getting there inconsequential – “I cannot describe the specific methods used – I think you understand why”.

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Law is Cool
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