It was a very interesting read, thank you very much for the report. I have two proposals on substance and two and a half proposals on form that can still improve it; From the beginning, when you show the general abstract form of a legal argument, your use of “(or not)” can be interpreted to mean that the consequences do not follow if the conditions are not met. However, since your premise is “If A, then B” and not “If and only if A, then B”, this interpretation would be a false counterposition. I`m pretty sure you know this distinction and it`s just a small point, I just thought it might be beneficial to be more specific. If you explain the concept of ejusdem generis, the wording is not quite correct, although I would say that what you mean is clear. There are no “other members of this list”. Perhaps you write something like “[if the items in a non-exhaustive list are of a particular type, then] it is assumed that the rule that uses that list also applies to all other members of that TYPE.” The first method of attacking a political argument should be a bullet, like the others. In the paragraph mentioning “Reference AG (No. 6 of 1980)”, there is no “not”. « […] but this case [NOT] fell within those exceptions. (Maybe search and replace to change all instances of double spaces to one space.) Greetings In abstract form, all legal arguments look like this: I just want to make one final point about the previous arguments. Because of the way they work – drawing analogies between the factual models of two or more cases – this type of reasoning requires an established view of the facts of the case.
You must agree that the present case has certain characteristics and that the previous one has certain characteristics. If the facts are disputed or differ from what the judge or lawyer claims, this may block the application of the previous judgment. Thus, this type of argument combines a defense of the main premise of the legal argument with an implicit defense of the secondary premise. 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. 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. 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). 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.
Some philosophers and political scientists would go further. They would argue that, since it is impossible to write authoritarianly and exhaustively all the rules that govern society, the law must be supported by a large body of unwritten, tacit, traditional and habitual rules. At some point, judges and lawyers have to invoke these rules to make legal arguments. 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 in which these arguments can be supported or attacked. We will see this when we discuss the four remaining types of legal arguments. 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. The majority judgment in that 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. The fourth type of argument is the custom or tradition argument. This is unusual. Indeed, we know that companies follow rules, even when there is no formal legal system.
