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Alexander Motsenigos And The Unwinnable Argument

By Joshua Siebert

Any cyclist inclined to defend his right to the road is familiar with the following argument, which is offered in various formulations: Lawless behavior by any cyclist relieves all drivers of any legal or moral obligation to all cyclists. Drivers will honor cyclists’ legal rights only when all cyclists conform carefully to the rules of the road with a punctiliousness that most drivers could not achieve if they tried. Ironically, this argument uses the law as a sort of stalking horse to relieve drivers of their own legal obligations.

Anyone who argues for a living, lawyers in particular, knows a secret: The easiest way to win is to shift the burden of proof to your opponent. The party who does so claims a position of rhetorical supremacy: Implicitly, the burden falls on the adversary because he is presumptively wrong. To prevail, the presumptively correct party need only repel his opponent’s advances as he seeks the high ground.

In law, the burden tends to be pre-defined. In debates over policy and individuals’ moral obligations to each other, where there are few rules, the burden