Here is an example. In the English AG Reference case (No. 6 of 1980), two young people argued in the street. They agreed to settle their dispute by fighting each other. One of them suffered bruises on his face and a bloody nose. They were charged with assault. The issue before the court was whether consent could be a defence to this charge, since both individuals had agreed to fight. The court ruled that consent could not be a defence to an assault charge. There were some legitimate exceptions to such charges, such as legally organized sporting events or certain ceremonial or aesthetic rituals (tattooing, ear piercing) that might otherwise involve activities that we might characterize as assault, but this case did not fall within those exceptions. It was just an ad hoc street fight.
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. Intent-based arguments have the following general form: The general form of the preceding arguments is as follows: In my experience, it is rare for courts to use policy-based arguments to simply create entirely new legal rules. Maybe it happened at the time. What is more likely these days is that there is a debate about which rule (or interpretation of a rule) should apply to a case. In resolving this dispute, the courts will consider the likely outcome of applying the rule to the case.
If they think the result is consistent with their preferred evaluation theory, they will apply it. If not, they will look for an alternative rule (or an alternative interpretation of the rule). For better or worse, law has become a text-based discipline. There are authoritative legal texts – constitutions, laws, case law, etc. – which lay down legal rules. Therefore, one of the most common forms of legal reasoning is to identify the relevant legal texts for the case and then use them to determine the relevant rule. This is the first type of right within Huhn`s framework and perhaps the starting point for most legal arguments. There are many ways to defeat intentional arguments.
Huhn identifies four main forms of attack, and they can work regardless of the form of evidence introduced to support the argument: One of the great virtues of Huhn`s framework is its attempt to comprehensively catalog not only the five main forms of legal argumentation, but also the different ways of supporting or attacking those arguments. We will see this when we discuss the four remaining types of legal arguments. Several authors have presented frameworks and taxonomies that attempt to bring order to the chaos of arguments in favor of legal rules. I like Wilson Huhn`s framework, The Five Types of Legal Argument, which not only reduces legal arguments to five main forms, but also shows all the different ways of arguing for or against a rule of law within these five main forms. I will try to explain Huhn`s framework in a condensed form in the rest of this article. However, I have to say that I have changed its framework a bit over the years and it is not entirely clear which parts are its own and which parts are my own modification. Most of it belongs to him. Some parts are mine (and most of the examples are the ones I use in my classes rather than those from Huhn`s book). Precedents are a form of analogous arguments.* Judges look at the facts of two cases to determine whether they are relevant similar. If they are relevant in a similar way, they apply the same rule to both cases (following the rule of the older or higher level court case). If they are not relevant in a relevant way, they may apply a different rule, perhaps a rule that comes from another case, or a rule that they invent/modify according to the circumstances.
Preparation. Latin means “to reason” used by lawyers in relation to “under the assumption of arguments” that the facts were as the other party claims, but the law prevents the other party from winning. Example: “assuming arguments” that the court finds that our client, the defendant, was negligent, the other party (the plaintiff) was so negligent that he cannot recover damages. In short, the lawyer does not admit anything, but only wants to make a legal argument. The word appears most often in calls. I will not go into details. As Huhn points out in his discussion, all textual arguments must be supported by some kind of textual analysis, that is, a premise that supports a particular interpretation of the rule. This means that textual arguments tend to take the following general form: There are three ways to attack a custom argument: Arguments based on custom or tradition take the following form: The majority judgment in this case ruled that the sentence was ambiguous given the circumstances of the case. You had to look beyond the simple meaning of the text and look at Soper/Young`s intentions when they signed the agreement to find out what it really meant. When you did, they argued that the meaning was clear: Gertrude (the second “wife”) was the intended beneficiary, not Adeline.
This judgment was challenged by a minority judgment, which argued that it went against the clear meaning of the text. There is some logic to the minority judgment, but it is a complicated linguistic issue. In any event, the majority judgment remains a good example of a deliberate argument used to justify the application of a particular rule of law – in this case, a treaty rule – to a case. Here is an example of habit-based reasoning in contract law. This is the Irish case of Carroll v. Dublin Bus. He was a bus driver who had been unemployed for some time due to illness. He returned to work and was given a normal bus route. He denied this claim on the grounds that it was common on board Dublin Bus for drivers who return to work after a period of illness to be offered an `easy` or `rehabilitative` route before returning to a normal work routine. The court agreed that this was indeed a custom within Dublin Bus and had therefore succeeded. The court decided that this custom should be included in the terms of his employment contract. I have been teaching legal reasoning and legal reasoning for years.
When I do this, I try to make students understand that legal arguments are both simple and complex. As law has become a more text-based discipline, with formal procedures for drafting and enacting legislation, the importance of customary or tradition-based rules has diminished. Instead of referring to customs, we point to texts to find the rules that govern our cases. Nevertheless, customary law is an integral part of law in some areas. In contract law, for example, it is common to use the customs of certain professions or places to determine what the terms of a contract should be. Similarly, in international law, the habitual conduct of States among themselves is one of the main sources of law. Finally, and perhaps most notoriously, there is no written constitution in the United Kingdom. Instead, there is a set of customary rules and norms that dictate how the state should be run.
They are the main source of constitutional law in the United Kingdom. Strategy-based arguments have two important steps. 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. In my view, the legal arguments take a similar conditional syllogistic form.