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. It`s a bit more complex than that, of course. The precedent system recognizes a hierarchy between the courts. Judgments of the higher courts of the same jurisdiction must be followed, but not judgments of the lower courts. But even if there is no strict rule that previous judgments must be followed, it is common for judges to refer to previous cases when deciding ongoing cases for guidance or reassurance. This applies even if there is a binding legal text (such as a law or constitution) that clearly defines the rule applicable in the case. As we have just discovered, these texts must be interpreted and are often ambiguous, vague or uncertain. As a result, judges draw on previous cases where the same rule has been interpreted and applied. Therefore, the foregoing arguments are an essential element of the law.
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. Every time you go beyond the strict wording of a legal text, you enter 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).
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. Exaggerated adjectives, ad hominem attacks and deliberate misinterpretations do not win the arguments. They cry out for weakness. But if you write clearly and carefully, every sentence, every paragraph, every heading subtly serves the result you are looking for, so that the conclusion at the end has the power of a fait accompli. This is the purpose of these rules: to write so well that the result seems without artifice, without effort, inevitable. Think carefully about the choice of words for the most important facts of your case. For example, if you want to argue that a company did not adequately address a sexual harassment complaint, don`t write «the investigation,» but you could use «the response» to suggest that no real investigation took place.
Similarly, you would write that the hiring manager «met» or «talked» to the alleged harasser instead of «interviewing» or «interviewing» him. This choice of words should be both subtle and precise, so you can include them in your statement of facts and throughout your briefing to reinforce your argument at every opportunity. This serves two purposes. First, it helps to stop the opponent`s claims. Sometimes an opponent writes so badly that you can`t understand what he or she is trying to say. If you don`t know, chances are the judge or employee doesn`t know either, and can therefore rely on your interpretation. Second, providing the specific page numbers for your opponent`s argument helps the judge or author identify with it, which means they can better judge what you say about it. 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. Easy, right? Unfortunately, this is not the case. While this basic argument is at the heart of all disputes, it is not the totality of these disputes. The problem is that the legal rules do not appear and do not apply to certain cases. There are many possible legal rules that could apply to a particular issue.
And there are many limitations and exceptions to the legal rules. You need to argue in favor of the rules themselves and show why a particular rule (or important premise) should apply to a particular case. Moreover, the facts of the case do not establish themselves. They, too, have to argue, and the law introduces a formalized procedure to establish facts, at least when a case is brought before the courts. So there you have it. This is a brief overview of the top five ways to defend and critically analyze the first premise of any legal argument. I`ve summarized all the important ideas in a handy chart that you can download here if you want. 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. In my experience, it is rare for courts with political arguments to simply create completely 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).
Every detail you include in a briefing should serve you in one way or another. Otherwise, it distracts from your argument. For example, I do not quote proper names other than the parties to the dispute. Instead, I identify individuals by a descriptor such as «personnel specialist», «medical expert of the accused», «duty officer». I do the same with the date and time; I only accept them if they have legal significance. Even then, I explain why they are important. For example, I would write, «The mockery lasted six months after she complained to the human resources department» or «He died two days later.» Eliminating details in this way lightens the cognitive load on your reader and leaves more room to focus on your argument.