In this two-part article, I want to explore some of the complexities of legal arguments. I do this first by looking at the different types of arguments you can make for or against certain legal rules (i.e. for and against the main premise of the legal argument). Understanding these types of arguments is the main function of legal education. People who study law at universities or professional schools spend a lot of time researching all the different ways lawyers try to prove that a particular rule should apply to a particular issue. It`s simple because in every legal case, there is essentially one type of basic reasoning that is at the heart of the dispute between the parties. This argument leads from a general rule of law to a conclusion on the application of that rule to a number of facts. Philosophers and logicians would say that the basic form of the legal argument is a syllogism: a simple three-step argument that involves a main premise (a principle or general rule), a secondary premise (a statement about a particular case or scenario), and then a conclusion (an application of the general rule to the particular case). Here is an example. The English case of Re A (Conjoin Twins) is remarkable for several reasons. The facts are known.
A pair of twins (named Jodie and Mary in this case) were born in August 2000. Jodie was the stronger of the two. Mary was only kept alive by a common artery she shared with Jodie. If they stayed connected, they would almost certainly die. If she were separated, Jodie would live and Mary would die. The doctors wanted to separate them. The parents objected. The case was referred back to court to determine whether doctors were legally permitted to proceed with the separation.
The conventional view seems to be that the main difference between common law reasoning and civil law reasoning is that civil lawyers generally start with the principle and then try to apply it to the facts in question (deductive reasoning), but ordinary lawyers do it the other way around (inductive reasoning). In my opinion, this is exaggerated at best and all lawyers use both types of reasoning. Feedback? The key to defending a policy-based argument is (a) to demonstrate that the intended consequence or outcome is likely to occur and (b) that it is consistent/inconsistent with the preferred valuation theory. There are many different evaluative theories, so there are many ways to defend the normative premise of this argument. Nevertheless, we can basically say that there are two basic methods of evaluation. First, there is a deontological evaluation, where you check whether the proposed legal rule is consistent with another rule that comes from your preferred evaluation theory (for example, a secular moral theory such as Kantianism or a religious moral theory). Second, there is a purely consequentialist evaluation, where you check whether the consequences of the rule are good or bad according to the criteria of your favorite valuation theory (does it promote economic growth? limit suffering? promotes well-being and well-being? reduces crime? and so on) “I found the argument of the five types of legal invaluable because it succinctly breaks down the legal analysis. First, reading legal opinions, especially with majority and dissenting opinions, can be a dizzying experience. But as you break down arguments, you learn to recognize calls to different types of arguments.
The reward is twofold: first, you can more easily understand legal opinions and criticize or appreciate them on a more sophisticated level. Second, the five types of legal arguments become a checklist of tools you can rely on to provide compelling legal arguments. Bryce Landier, former law student In abstract form, all legal arguments look like this: You might not agree with that. One might think that the cases are more similar than the judges suggest, or that they struggle to find structural differences to support sectarian or intolerant views. It does not matter and it is part of the way we criticize similar arguments. Nevertheless, this case sequence is a good example of how precedents/analogous arguments can work. “In law school, professors always tell us not to focus on the trees, but to step back and see the forest when we are analyzing legal issues. This book certainly encourages this well-thought-out approach. Amanda Johnson, law student Every time you go beyond the strict wording of a legal text, you are walking in troubled waters. Some believe that lawyers and judges should focus exclusively on the strict wording of the text.
They should not add words that are not present or distort the literal meaning with their own preferences or ideas. Moreover, the idea that some legal texts have intentions or objectives is problematic because they are often written by groups of people who may not have a common intention or who were intended to provide timeless abstract principles for a society (this is a common argument on constitutional texts – if you`re interested, I have written a few articles on some of the philosophical problems related to constitutional interpretation). “The book provides a good introduction to legal analysis and shows students the importance of identifying the categories of legal arguments they encounter.” Ben Wiles, law student There are two important steps to policy arguments. The first is an examination of the likely consequences or outcomes of applying a particular rule to the facts of the case (again, there tends to be initial agreement on the facts, although it is not integral to this type of reasoning as to a previous argument). The second is the use of an evaluative or normative theory to evaluate these consequences or outcomes. This evaluative theory can be drawn from several sources: economic theory, moral theory and religious tradition are among the most commonly used. The next type of argument is the argument based on intent or purpose. This is a subset of textual arguments where, instead of examining the clear or objective meaning of a legal rule, you focus on the intent or purpose behind the rule.