ArgLab • Colloquium

Giovanni Damele

The appeal to 'common sense' as naturalistic argument

The label “naturalistic argument” is often used, in legal argumentation, to indicate different patterns of argument, such as the appeal to scientific expertise or the reference to the nature of things or to popular opinion (“common sense”) or to popular practice.

More specifically, the argument from the nature of things can be considered, in legal contexts, both as a “productive argument” (the so-called “hypothesis of the powerless legislator”) and as an interpretive argument. In the first case, it is based on the idea that the regulation of social relationships is derived from the “nature of things” and that it cannot oppose the inner nature of those relationships. In the second case – much more common in contemporary legal discourse – the argument is used in order to suggest and select attributions of meaning to legal dispositions, ultimately based on the “nature of things”. This interpretive argument needs other arguments in order to precise the meaning of “nature”. Often, this meaning is expressed through the reference to popular opinion or popular practice. For this reason, the “naturalistic argument” and the “argument from popular opinion” are frequently associated, suggesting that the naturalistic argument is – ultimately – a kind of “appeal to authority”, whose force derives from the authority of the majority of the people or the common opinion (Walton, Macagno and Sartor, 2014). Other authors suggested that the “argument from popular opinion” or “from common sense” cannot be considered as a type of “naturalistic argument”, suggesting that the latter cannot be reduced to a type of authoritative argument.

As a matter of fact, in legal context the “naturalistic argument” seems to be used as an “umbrella concept”, covering different types of interpretive arguments.

This paper aims to analyse the pattern of the naturalistic argument, suggesting that – at least in the legal context – it cannot be simply reduced to a kind of “appeal to authority”. Conversely, it will suggest that there are cases in which the “appeal to common opinion” constitutes – at least in the legal context – a species of the genus “naturalistic argument”.