In abstract form, all legal arguments look like this: * Some legal theorists claim that this is false. But in my experience, they offer very technical analyses of case-based reasoning, distinct from how lawyers actually think it works in practice. It is easier, and in my opinion, more accurate to see precedents as some kind of analogous argument. There are many ways to defeat deliberate arguments. Chicken identifies four main forms of attack and they can work regardless of the form of evidence introduced to support the argument: here`s an example. The English case of Re A (Conjoined Twins) is notable for a number of reasons. The facts are known. A pair of twins (called Jodie and Mary in the 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, the two would almost certainly die. If she were separated, Jodie would live and Mary would die. The doctors wanted to separate them.
Parents objected. The case was sent back to court to find out whether doctors were legally allowed to proceed with the separation. Policy-based arguments have two important steps. The first is an examination of the consequences or likely outcomes of applying a particular rule to the facts of the case (so that, in turn, there tends to be an initial agreement on the facts, although it is not as important for this type of reasoning as for a previous argument). The second is the use of an evaluative or normative theory to evaluate these consequences or outcomes. This theory of evaluation can be drawn from several sources: economic theory, moral theory and religious tradition are among the most commonly used theories. It is simple because in every legal case, there is essentially a basic type of reasoning that constitutes the core of the dispute between the parties. This argument is based on a general rule of law to reach a conclusion on the application of that rule to a number of facts. Philosophers and logicians would say that the basic form of legal reasoning is a syllogism: a simple three-step argument that includes a primary premise (a principle or general rule), a secondary premise (a claim on a particular case or scenario), and then a conclusion (an application of the general rule to the particular case). Easy, right? Unfortunately, this is not the case.
While this basic argument is at the heart of all disputes, it is not all of these disputes. The problem is that legal rules don`t just appear and apply to specific cases. There are many potential legal rules that could apply to a particular set of facts. And there are many limitations and exceptions to 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 present case are not merely established. They, too, must be argued, and the law adopts a formal procedure for establishing the facts, at least when a case is brought before the courts. There are three ways to attack an argument based on habit: as law has become a more textual discipline, with formalized procedures for creating and proclaiming legal rules, the importance of usual or tradition-based rules has diminished. Instead of referring to customs, we refer to texts to find the rules that govern our cases. Nevertheless, in some areas, habit is an integral part of the law. In contract law, for example, it is common to use customs within certain professions or places to know what the terms of a contract should look like. Similarly, in international law, the habitual behaviour of States towards each other is one of the main sources of law.
Finally, and perhaps most notoriously, there is no written constitution in the UK. Instead, there are a number of common rules and standards that dictate how the state should be managed. These are the main source of constitutional law in the UK. For example, a lawyer`s argument consists of a presentation of the facts or evidence and the conclusions drawn from them, which are intended to convince a judge or jury to render a judgment in favour of the lawyer`s client. I will not get to the heart of the matter. As Huhn points out in his discussion, all textual arguments must be supported by some sort of text 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: in my experience, it is rare for courts to use policy-based arguments to simply create entirely new legal rules.