Home Argumentum Ad Hominem Argumentum Ad Hominem : legal maxim

Argumentum Ad Hominem : legal maxim

February 25, 2022

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This article is written by Ashutosh Singh, a student at Amity Law School, Amity University, Kolkata. The article explains the legal maxim argumentum ad hominem, its types, examples and usage.

This article has been published by Sneha Mahawar.

Introduction

Maxims are useful tools for legal purposes and the word maxim is taken from the Latin word “maxima” when Latin was the language preferred for legal purposes. Michael Polanyi who was a Hungarian-British polymath said that maxims are significant for the purpose of clear as well as implied modes of understanding. Latin maxims are the well-known principle of law or a legal policy specified in Latin form. Argumentum ad hominem is one such legal maxim.

Ad hominem means “to the person” and it is a Latin word. It means pleading to personal contemplations to be more precise, than to logic or reason. It could include attacking an opponent’s character instead of the opponent’s statements. This phrase is mostly used to explain an argument based on the imperfections of an opponent rather than on the merits of the case. For example, ad hominem is indulged in by people who attack one’s adversary and it is a tried-and-true strategy for people who have a weak case.

These maxims guide courts all over the world in the application of the prevailing laws in a fair and just manner to empower the courts in deciding issues before it. Maxims generally don’t have the authority of law however, when courts apply the maxims in deciding issues of law and when the legislature absorbs these maxims while framing laws, they form the foundation of healthy judgements and take the form of law. This article endeavours to explain the legal maxim argumentum ad hominem because it is much used in the courts against opponents. It is the phrase for an argument with emotional appeal instead of logical appeal.

Origin and history of Argumentum Ad Hominem

“Argumentum ad hominem” is a Latin phrase meaning “argument against the person”. In other words, the phrase means that a person deliberately takes on an argument with another person. The exact birth of this phrase is not known but it was used in the western part of the world earliest by the ancient Greeks. Even Aristotle makes a detailed mention of the fallacy of putting the questioner on scrutiny but not the argument.

The modern understanding of the term “ad hominem” started to take shape somewhere in the mid 19th century, a broad definition of which was given by English logician Richard Whately. According to Whately, ‘ad hominem’ arguments were generally focused on the unusual circumstances, character, admitted opinions, or past conduct of an individual.

Over the years, the phrase acquired a different meaning. Later the phrase was linked to a logical fallacy at the beginning of the 20th century. In this instance, a debater, instead of disproving an argument, attacked their opponent, not physically but through arguments. Nowadays, however, the phrase signifies a direct attack at the character and ethos of a person, in an attempt to negate their argument.

Argumentum ad hominem in courts

‘Ad hominem arguments’ characterise one of the most worrying, mistrustful, tricky and contentious yet effective argument tools in law.

They play a critical role in criminal law. One can say that they are hypothetically in-admissible arguments as they are not focussed against the issue but on the speaker’s argument and against the character of the person who put it forward.

But these confrontations can be awfully effective as a society, and sometimes juries, tend to mistrust people if proven of bad character. Although directly in-admissible, ‘ad hominem arguments are used both by the prosecution and the defence in a courtroom battle. The use of personal attacks to discredit an opponent/ witness is a common trick and skill in a trial setting and a very important form of argument for an advocate or a judge to know about.

Ad hominem arguments have long been considered to be fallacious but now researchers believe that this argument style has progressively moved towards acceptance that they were not always fallacious.

By condemning the spokesperson who may be the prosecutor or the defence counsel in a Court of law, it is possible to draw the conclusion that his/her arguments, in general, should not be accepted because the prosecution can attack and undermine all the possible evidence and arguments submitted by the defence by advocating that the counsel is dishonest, has lied, and fabricated the evidence. Some examples are as follows:

Attacking a defendant’s character

Rather than addressing the actual facts of the alleged criminal activity if the prosecutor says that the defendant hasn’t held a steady job for a long time and what could be worse than the fact that a single employer was not available to vouch for him and provide him with a good reference.

Making the excuse of witness’ geographical location

Emphasising that witness’ geographical location inhibits him from being able to make a clear judgment in the case by saying that he/she has always lived in one city and wouldn’t be able to comprehend matters and issues of importance in some other place.

Making the argument racial

Using racial affronts to debase a person of another race in an argument about a crime involving people of different racial backgrounds by saying that people won’t be able to understand what it’s like to grow up in Srinagar and they have no right to call us terrorists as we are only fighting for our freedom.

Types of ad hominem arguments

Types of ad hominem arguments that are fallacious

Abusive ad hominem

This is a “personal attack” and the most common type of ad hominem argument. The nature of the argument makes it one of the most common logical fallacies. It focuses more on the person behind the argument, rather than on the argument itself. This fallacy is a direct attack on the individual where an individual’s clothes, hair, and personal appearance are brought up during the argument when they have nothing to do with the subject matter. Apparently, the abusive fallacy is persuasive because we mistake the context of the argument for one of those in which the character or characteristics of the opponent start to matter.

For example, the prosecution tells the defendant’s counsel that his argument is stupid because what he is implying is that the person making the argument is stupid since an argument is not a person it cannot literally be stupid. We also see this approach of argument often in sexual assault cases where the defence counsel attacks the character of the victim

Appeal to motive

It is an argument where a person attacks the motive by calling into question the motive of its proposer and doesn’t take into account his/her claim. A common feature of this type of argument is that if the motive exists, then the motive played a role in forming the argument and its conclusion. Sometimes the mere possibility of a motive is evidence enough.

For example, a scientist making a presentation of his findings on climate change is questioned by a member of the audience as to why anyone should believe him because the career of the scientist and funding of his research depended on his position that climate change is happening. So, the focus here is on the motive and not the claim.

Ergo decedo

This is a fallacy where someone scorns a person with authentic complaints by telling them that if they don’t like the discussion then they can leave. It’s a way of avoiding dealing with the complaint and admonishing the complainer as unworthy of being part of the group or discussion.

For example, a student tells his lecturer that he did not understand what was being taught by him and that it would help if he used more illustrations to explain the lesson. The lecturer in turn tells the student that if he didn’t like his lecture then he should leave and go to some other college he thought was better.

Guilt by association

This is a type of abusive ad hominem that is an unsound argument based on poor reasoning in which one person attacks a second person’s associates in order to question the person and thereby his argument. In guilt by association, one side decides they do not agree with or accept an argument/point put up by the other person/people because he/she doesn’t like the person/people who have put forth the argument.

For example, Anita is a famous Bollywood movie lead actress working in women-oriented movies and also supports the cause for equal pay for equal work and has often participated in their rallies. When once she was a witness in the court, the counsel for the defendant rubbished her comments because she came from an extreme feminist group and that extremists like Anita should not be taken seriously. Making an assumption that Anita is an extreme feminist simply because she supports a cause which if implemented would be beneficial to every man and woman also, is fallacious.

Circumstantial ad hominem

This fallacy comes into play when the opponent’s circumstances are taken into account and it may be irrelevant to the argument. In circumstantial fallacy, legitimate concerns are overturned over conflict of interest by suggesting that the person who is making the argument is biased or predisposed to take a particular stance because the person has a vested interest in it, and thereby, the argument is necessarily invalid. This fallacy, in other words, affirms that someone is arguing as they do only because they have their own vested interest in the matter, and thus their argument should be dismissed as false.

For example, Andhra Pradesh is a coastal state rich in access to seafood. Before the budget session, the minister of the state in the parliament said that it would be in the interest of the country to expand the production of fish and export them. The opposition claimed that the minister was saying that because Andhra Pradesh would benefit from this project being a coastal state.

Tu quoque

This fallacy is also called an appeal to hypocrisy, where the opponent points out how the arguer doesn’t follow his or her own advice. It’s like the pot calling the kettle black because the person doesn’t put into practice what he/she preaches. Tu quoque arguments are fundamentally bombastic rather than dialectical since their effectiveness depends on the presence of an audience. This is thus a type of fallacious ad hominem that attempts to discredit a person’s position by charging the person with hypocrisy or inconsistency.

For example, a political candidate’s speech about the dangers of drug use is attacked and questioned because there is a record of him using drugs while he was in college.

What aboutism

This is a type of logical fallacy where a person endeavours to distract the focus away from the current issue by making a counter-accusation. It’s a particular form of the ad hominem argument in which someone’s claim is doubted due to alleged hypocrisy by the arguer. As the name suggests, it’s illustrated by the phrase “What about…?”, which is generally followed by an issue that may be only distantly related to the original one. It usually comes in use when one is charged with a harmful accusation regarding their past actions, then one counters the charge by conjuring something negative about the opposing side and thus attempts to tone down the degree of their own actions.

For example, climate change is a global issue and requires international intervention and global cooperation. A president of a developing country may evidently refuse to take corrective actions to alleviate climate change in his country because some other developed countries are not taking any corrective steps themselves to mitigate the problem.

Poisoning the well

Poisoning the well is a logical fallacy. Even though having much in common with ad hominem arguments, it is best analysed in terms of argument schemes as a distinctive fallacy type. In this type of ad hominem argument, a person attempts to place an opponent in a position from which he/she is unable to reply. It is a type of fallacy where unfavourable information about a target is pre-emptively given to an audience, with the intention of discrediting and ridiculing something that the target person is about to say.

For example, a history professor is good at his job and has a good reputation but you are told by your college buddies that he doesn’t like women because he doesn’t elaborate on the contributions of women in history. Now, when you attend his class for the first time, your opinion of the professor and the lectures will be corrupted by your friend’s words.

Ad hominem arguments that are not fallacies

Just as there can be negative fallacious arguments against someone, there can also be a valid ad hominem argument that is not a fallacy. In other words, in arguments where the character or circumstance becomes relevant to the substance of the argument then there is no fallacy.

Argument from commitment

This works to persuade the opponent of a premise about information that the opposition already believes to be true. For example, in many cases, the ad hominem arguments are considered completely relevant arguments and not fallacious if they provide evidence.

Ad hominem arguments, testimony and authority

Sometimes the conflict of interest is being hidden. This could be a personal gain that influences a person’s position and in such cases, the ad hominem could become relevant where the person being criticised is making the arguments from authority, or testimony that is based on personal experience, rather than proposing formal reasoning in which a conclusion is drawn from assumed propositions/premises. For example, in the Court, when the defence counsel cross-examines an eyewitness, shedding light on the fact that the witness was convicted for lying in the past might suggest the conclusion that the witness should not be trusted, which would then not be a fallacy.

Case laws related to Argumentum Ad Hominem

Gurudevdatta Vksss Maryadit and Others v. State Of Maharashtra and Others (2001)

In this case, the Bombay High Court negated the petitioner’s assertion of the restrictive list of voters with respect to the provision to Section 27 (3) as added by the amendment to the Maharashtra Co-operative Societies Act, 1960. Elections were around the corner and the entire election programme including the list of voters was finalised. However, after the amendment to the Act, certain societies lost their right to vote due to the introduced proviso although the voter’s list had been finalised. The High Court concluded that the societies which were eligible to vote earlier cannot be faulted on the basis of the amendment which came into force at a later date. The High court said that the societies therefore can’t be denied the right to vote and hence the appeal before the Supreme Court.

The question came up before the Supreme Court about the judicial inclination to interfere with the legislative decisions and the Supreme Court replied that whether it was a political question or not, judicial inclination to interfere could not be faulted though not otherwise.

The Apex Court emphasised that the same stands subject to the facts of each case and it is almost next to impossible to even represent an outline as to what will and what will not constitute judicial reluctance to interfere. The exception is the field which can be described to be as ad hominem or even any attempt to draw the line because every case is decided on the given facts.

In this context, the Supreme Court relied on the decision of the Privy Council in the case of Liyanage and others v. Reginam (1966), wherein, their Lordships of the Privy Council introduced the concept of legislation ad hominem and struck down the legislation by reason thereof.

State v. Keil (1990)

In Missouri Court of Appeals, Eastern District, Division Four, during the rebuttal portion of the state’s closing argument in the aforesaid case, the public prosecutor stated that “. . . if he’ll do it to his own nephew, he’ll do it to anyone” where the prosecutor was implying about an act of sexual intercourse. The Trial Court sustained the defence counsel’s objection to this argument, and no further relief was requested. As if this was not enough, a few moments later the prosecutor referred to the defence attorneys as ‘vultures’. The Trial Court again sustained the defence counsel’s objection and requested that the jury be instructed to disregard the statement. However, the Court overruled the request for a mistrial.

Argument ad hominem condemns the argument because it condemns the arguer and in the aforesaid case, the law doesn’t allow a lawyer to denigrate the opposing counsel by making a personal attack upon the lawyer. such as by calling the defence attorneys “vultures”.

Thannoo v. State (1958)

In this case, the appellant appealed before the Allahabad High Court against his conviction by the Sessions Court of Budaun under Section 304, IPC, and the sentence of nine years given to in which the learned Sessions Judge did not say as to which of the two parts of Section 304 of IPC, that the appellant was convicted.

The deceased is said to have died on the spot as a result of a single lathi blow on his head. The case involved a row over a strip of land separating the houses of the appellant and the deceased on which the appellant was keen to build a house. This attempt of the appellant was opposed by the deceased that resulted in tense relations between the appellant and the deceased. Apparently, due to this tension between the appellant and the deceased, an altercation over the building of the house took place and abuses were exchanged between the two. After this, the appellant is alleged to have struck the defendant with his lathi on the head as a result of which the deceased fell down and died on the spot and this was witnessed by 5 people. The defence denied the allegations by the prosecution and a witness was produced in defence. The learned Sessions Judge did not believe the defence witness and convicted and sentenced the appellant relying upon the testimony of the eye-witnesses produced by the prosecution, There was no attempt at a restoration of the defence evidence in the Sessions Court.

The issue was whether the learned Sessions Judge was right in exonerating the appellant of the offence under Section 302 and convicting him only under Section 304. The learned Sessions Judge, while acknowledging that the blow on the head was given with great force, held that the appellant could not be held guilty under Section 302, of IPC because the act fell under Exception 4 to Section 300 of the Code. The Sessions Judge totally ignored at least two of the ingredients of the Exception. One ingredient ignored was that the offender takes no undue advantage, and hence this was a case of ‘argumentum ad hominem’. The second ingredient was not at all considered by the Session Judge because homicide should have been committed in a sudden fight. He also said that a sudden quarrel caused a homicide to take place. But the quarrel, according to the exception should have taken place in a sudden fight. Although a fight is a different ball game altogether it implies a contest in which both the parties participate irrespective of how they fare in it.

Ford Motor Co. v. EEOC (1982)

The U.S. Supreme Court, in this case, noted the opposition’s claim that the majority had misread the Court of Appeals’ decision, transforming a narrow Court of Appeals ruling into a broad one. This was just so the court would reverse and induct a broad new rule of their own choosing, rather than attempt to decide the particular case actually before them. Believing that the court’s framing of the issue was correct and fair, the court declined the opportunity to address further this ad hominem argument. The Court said that the dissent’s argument is an ‘argument ad hominem, at least in part.

The Court further added that undeniably, a simple statement that the majority misread the lower Court’s opinion would not be concentrating on the character or circumstances of the majority and hence would not be ad hominem. However, the assertion that the misreading was the outcome of an improper or even legitimate motive, the wish to establish a broad new rule, is ad hominem. Instead of arguing that the majority’s view is incorrect, the opposition strongly advocated that the majority had a motive to transform the lower court ruling. The Court added that even if the majority did have such a motive, the opposition’s ad hominem does not determine that the majority acted only on that motive or that the majority’s argument is flawed.

United States v. Biasucci (1986)

In this case, the court found the prosecutor’s addressing the defence counsel as inappropriate in his rebuttal statement. The prosecutor addressed the defence counsel as “you sleaze, you hypocritical son….., and so unlearned in the law “. The Court found the prosecutor’s repeated engagement needless and unwarranted ad hominem attack against the defence counsel.

Conclusion

To summarise, an ad hominem argument makes the opponent an issue instead of addressing the issue presented by an opponent. It tends to distract the attention from the argument to the arguer instead of invalidating the substance of what is asserted in the argument by the arguer. The use of ad hominem attacks undermines the argument even if the arguer offers other elements of logic and reasoning because the argument gets diminished and the focus is distracted from the well-argued points. Ad hominem arguments are generally used in their fallacious form.

A fallacy can be described as an illogical step in the formulation of an argument. For example, some may say that blue is a bad colour because it is linked to sadness which is an argument because it makes a claim and offers support for it, whether the claim made is true or false. Some might argue that this argument is fallacious because blue represents calmness to them.

Ad hominem arguments are seen in politics, law, and the media are notorious for these tricks. Some ad hominem arguments are an everyday occurrence in society and are often committed unintentionally. These fallacies can sometimes even make illogical arguments seem logical and they are used to persuade audiences to believe illogical claims.

Ad hominem arguments have long been considered to be fallacious but recently they have progressively moved towards acceptance of the view that they were not always fallacious. However, when they are fallacious, they are best seen as perversions or corruptions of perfectly good arguments.

References

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