The Treatise on Argumentation insists on the necessity and variety of “prior agreements” between participants to develop an argumentation — that is, an argument1; no previous agreements are necessary to engage in an argument2:
For argumentation to exist, an effective community of minds must be realized at a given moment. There must first of all be agreement, in principle, on the formation of this intellectual community, and, after that, on the fact of debating a specific question together: now, this does not come about automatically. (Perelman & Olbrechts-Tyteca , p. 14)
Two different kinds of agreements are mentioned here, and, as the text points out, neither of them can be taken for granted.
1. Formation of speech communities
This first kind of agreement deals with the realization of an “effective community of minds”, constituted upon the free decision taken by the participants. It may be considered as an ideal form of argumentative communication. Its nearest approximation may be philosophical or scientific friendly encounters.
Not all argumentative practices depend on the production of such a community. The court is a prototypical argumentative place, and no prior voluntary agreement must be made with criminals to assure their timely appearance; when necessary, legal coercion may be used. Institutions defining specific forums, problems and rules of interaction determine the social and legal conventions ruling argumentative communities. The existence of these social infrastructures makes it possible to avoid previous cumbersome negotiations among speech communities.
2. Agreement about the issue
To discuss an issue, must we first “agree to discuss this issue together”? As was the case for the kind of agreements described immediately above, the different legal systems establish who has the legal right to determine the charges leading to the appearance of a given party; the defendant does not necessarily agree to discuss the matter, but is summoned by the judge.
Prior discussions may be useful in institutionally structured communities in order to establish the points that will be discussed at a particular meeting. But the agenda is not necessarily decided upon by mutual agreement among the future participants in the discussion; it may be the prerogative of an individual in charge of the organization. On the other hand, the issue itself, may be re-framed during the encounter.
Intellectual communities are also social communities, even when they address questions concerning the human condition in general. The disputability of an issue is itself an argumentative exercise, in the same way as the process of discussing the issue itself. Two quite distinct subquestions must be envisioned, first, a central one, the conditions on the “disputability” of the issue properly said, and second, if all the potential partners agree to discuss such and such issue, a practical issue must be settled, the material conditions on the discussion itself – where, when, who will chair the discussion, etc. — not to mention the shape of the table.
The dispute about the maximization vs. minimization of the right to discuss define what may be called the stasis of stasis.
2.1 Maximizing the right to discuss
Concerning the substantial issue, one can either stress the principle of radical free expression according to which any point of view can be affirmed and challenged, or emphasize the pragmatic conditions of such discussion. The first of the “Ten Commandments for Reasonable Discussants” posits that:
Commandment 1, Freedom rule: Discussants may not prevent each other from advancing standpoints or calling standpoints into question. (van Eemeren, Grootendorst, 2004, p. 190)
This is also the position taken by Stuart Mill:
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. (Mill, , p. 76)
2.2 Conditioning the rights to discussion
Absolute liberty of expression would give free rein to racist speech, hate speech, collective verbal and non-verbal persecution of the individual chosen as a scapegoat a group, types of speech which many would find unacceptable. If individuals are free to privately discuss anything, provided they can find a partner willing to do so, actual speech communities put conditions on social discussions. For example, the res judicata principle prevents the reopening of an issue which has already been judged, unless a new fact is to be considered.
Moreover, the proper functioning of a speech community must take into consideration the fact that it is not possible to discuss anything (condition on the subject, on the agenda), with anyone (condition on the participants), anywhere and anytime (material conditions on place and time), no matter how (according to what procedure), S. Manipulation:
Some Truths Are Not for Common Ears. It is lawful to speak the truth; it is not expedient to speak the truth to everybody at every time and in every way.
Erasmus, , On the Freedom of the Will. (no pag.)
The Treatise is very sensitive to the “anyone” condition:
There are beings with whom any contact may seem superfluous or undesirable. There are some one cannot be bothered to talk to. There are also others with whom one does not wish to discuss things, but to whom one merely gives orders.
(Perelman & Olbrechts-Tyteca , p. 15)
Aristotle limits topics of legitimate discussion to the endoxa, and rejects debates questioning “anything”, that is to say, affirmations which in practice nobody doubts:
Not every problem, nor every thesis, should be examined, but only one which might puzzle one of those who need argument, not punishment or perception. For people who are puzzled to know whether one ought to honor the gods and love one’s parents or not need punishment, while those who are puzzled to know whether snow is white or not need perception. (Top., 11)
The undisputable refers to three kinds of evidence: sense data evidence, “snow is white”; religious evidence, “we must honor the gods”; and the social evidence “we must love our parents”; these statements are uncontroversial because it is unconceivable that anyone would argue otherwise — in Aristotle’s Athenian society of course. In order for an opinion to be worthy of doubt, it must, on the one hand, fall within the scope of the doxa. That is, it must be part of the defining beliefs of the community, or seriously claimed by some of its honorable members or a subgroup, S. Doxa.
On the other hand, the doubt must be serious, that is motivated. Arguing being a costly activity, one must have a good reason to doubt. In other words, the person who wants to challenge an accepted statement bears the burden of proof.
In the same spirit, the theory of stasis categorizes as uncontroversial (a-stasic) misplaced, badly worded or intractable questions, or, conversely, questions whose answer is obvious, S. Dialectic; Self evidence; Stasis; Argumentative question.
On the legitimizing effects of debate, S. Paradoxes.
3. Agreement on what counts as an argument
Agreements on the community of speech and on the issue must be supplemented by agreements on beings, facts, rules and values (Perelman, Olbrechts-Tyteca , II, 1). Agreements here should establish what counts as an argument: condition of truth; of relevance of the true statement for the defended conclusion; of relevance of the conclusion (defended by a true and relevant statement) for the debate itself, S. Relevance.
When it is impossible to determine whether a statement is true, relevant to a conclusion itself relevant to a debate, a general system of acceptance or tacit agreement is invoked. In serious global disagreements, sub-agreements are difficult to reach; the disputants anticipate their opponent’s conclusion, and know very well that once the argument is accepted, the conclusion will quickly follow, hence the tendency to postulate disagreement as a ruling principle, including upon what should be considered as facts, S. Politeness; Dissensus; Disagreement.
This “appeal to agreement” is actually grounded on an argument by perverse effects, considering that the absence of agreement would condemn the debate to an undesired state of deepening disagreement, that can indeed lead to a collapse of the discussion (Doury 1997). In practice, two facts must be taken into account. Firstly, points of agreement and disagreement can be negotiated on the spot, during the discussion. Secondly, the lack of agreement does not preclude argumentation, it suffices that third parties take the reins of the discussion. The decision of the judge, and more generally that of the third party, is commonly made on the basis of an argument rejected or ignored by one party, or by both, S. Roles. Judicial organizations intervene precisely when no agreement can be passed between the parties; as representing the ruling power, they dispense with agreements — not with arguments.
In general, if one agrees on the data and rules, the conclusion automatically follows; argumentation becomes demonstrative. But argumentation is a linguistic way of dealing with the different in a system of generalized disagreement and uncertainty. There is a decisive incompatibility between the material interests at stake: one can indeed divide the pie, but what is eaten by any one person cannot be shared with the other. Serious, deep, intractable… disagreement between the parties, proponent and opponent, should be considered to be the basic condition of argumentation; that is why third parties have a key role to play in argumentative devices.
 Quoted after Desiderius Erasmus, On the Freedom of the Will. Trans. by E. Gordon Rupp (no pag., no date). www.sjsu.edu/people/james.lindahl/courses/Hum1B/s3/Erasmus-and-Luther-on-Free-Will-and-Salvation.pdf (05-23-17).