Intent — Another type of legal argument is based on the intent of the people who wrote the text— for example, the original intent of the Framers of the Constitution or the intent of legislators who drafted a statute. Evidence of intent may be drawn from: Precedent — Another type of legal argument, the one most well-known to first-year law students, is argument based on judicial precedent.
Tradition — Another source of legal authority is the traditions of the American people. The Supreme Court has identified tradition as a principal test for determining our fundamental rights. Tradition is looked to in various areas of law, such as the law of commercial transactions, where courts consult industry customs and traditions. Similarly, social traditions play a role in the allocation of liability for tort. Policy — A policy argument construes the law by inquiring into the underlying purposes of the law.
It determines the meaning of the law based on the values the law is intended to serve. Policy arguments are different from the other four types because they are consequentialist in nature; that is, unlike the other four types of arguments, which look to the past in that they are appeals to authority, policy arguments look to the future by arguing that a certain interpretation of the law will bring about a certain state of affairs — and that this state is either desirable or unacceptable in the eyes of the law.
Understanding each of these types of arguments can help law students and young attorneys tasked with writing briefs in learning to formulate effective legal arguments. At least, not like this. The types of arguments are introduced to students, but not distinguished from each other very well except perhaps precedent vs. You are commenting using your WordPress. You are commenting using your Twitter account. The problem with these two suggestions is that the practice of distinguishing does not conform to either of these constraints: As a matter of legal practice, then, there are no legal restrictions of this kind on the later court.
Distinguishing, then, does not seem to fit easily with the understanding of rationes as creating binding legal rules. See also Perry , —9 on distinguishing. This approach makes use of the fact that decisions do not provide canonical formulations of the ratio to argue that the ratio is not to be identified with the court's stated ruling on the issue.
The effect of such an approach is to narrow what is regarded as binding in the case to those facts which were crucial to the actual outcome, rather than the stated ruling applied to those facts. The difficulties with this approach are three-fold:. Take the case of the recipient of trust property transferred in breach of trust. A key aspect of the facts is that the recipient did not pay for the property. If the court's own reasoning is put to one side, is it because no consideration was given so had a token been provided that would have been sufficient ; or that inadequate consideration was provided so more than a token would be necessary ; or that a reasonable price was not paid; or that the price was not what the beneficiary would have been willing to accept for the transfer; or that the price is not the best which the trustee could have obtained on the open market?
The requirement for any of them would invalidate the transfer. Take later trust case, for example, in which the recipient has paid nothing for the trust property but has acted detrimentally in reliance on the receipt. This may well lead a later court to distinguish the earlier case, although the facts are otherwise identical to those in the original case. A different response to the problem of distinguishing is to relocate the binding force of precedents in the justification for the earlier decision, rather than in the ruling itself.
See Perry , esp. This approach has three principal attractions. The first is that it explains the lengthy expositions of the reasoning for the result found in many decisions. It is the reasons that contain the gist of the decision, and so it is to this question that most attention is directed by the courts in justifying their decisions. Secondly, this accounts for the fact that courts do not bother and indeed lack the power to lay down a precise formulation of their rationes. The ratio does not lay down a rule which must be followed by later courts, but is simply a convenient short-hand way of referring to the overall effect of the principles justifying the result in the case Perry , , Thirdly, and most significantly, this approach provides a natural explanation for the practice of distinguishing.
A later case is distinguishable where the justification for the result in the precedent does not apply to the different facts of that case, even if it might seem to fall within the ratio of the decision. The initial difficulty arises from the fact that distinguishing is not restricted to the application of the justification provided by the earlier decision. Any good argument can provide the basis for distinguishing, for example by showing that the novel facts in the later case provide considerations which outweigh the original justification: So later courts go beyond what was done in the earlier decision in determining whether to distinguish the later case.
One possible line of response to these difficulties is to abandon the idea that what is binding is the precedent court's justification for its decision. After all, the standard view is that later courts are bound by the ruling in the precedent, not its reasoning. Instead, it is argued, whether the earlier decision must be followed in the later case turns on applying the best justification for the earlier decision. But not the best justification for that decision, taken in isolation.
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Rather, what is binding in law is the set of principles which best fit and justify the totality of the results in past decisions e. Moore , , ; cf. Dworkin , —23 [ 10 ]. From this perspective, distinguishing is not restricted to applying the earlier court's justification for its decision, but in applying the justifications for the doctrine of which that decision forms a part.
The second difficulty, however, applies to both versions of this approach, viz. The practice of precedent involves later courts being bound to either follow or distinguish the earlier decision, but only if the facts of the later case fall within the terms of the ratio. The ratio plays an indispensable role in fixing the scope of the later court's duty to follow or distinguish—it is only if the facts of the later case fall within the ratio that this question arises.
This role is not appropriately captured by arguing that it is the justifications, and not the ratio , which are binding. Moore , —7, —3.
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What the approach does help to highlight, on the other hand, is the role played in the practice of precedent by the justification for decisions. As noted above, determining the ratio is not a mechanical exercise: The precedent court's own justification for its decision plays an important role in determining the level of abstraction of the factors in the ratio , and for providing arguments for a narrower or wider reading of those factors. This is related to another point: The ratio of the precedent sets the outer limit of what is binding on later courts—i.
Analogies as will be argued below are grounded in the underlying rationale for earlier decisions, but they do not bind later courts. If the underlying justification of precedents were binding, rather than the ratio , then analogies would be binding and legal reasoning would have a different shape. If a precedent is not laying down a rule, nor binding in terms of its underlying justification, how should it be regarded?
One alternative is to think of the precedent as representing a decision on the balance of reasons in the individual case before the court that later courts are required to treat as correctly decided see Lamond The precedent court took a range of facts into account in reaching its decision. Those facts—facts such as the breach of trust, the trustee having power to transfer the property, the recipient being a volunteer, and the good faith of the recipient—ground reasons for reaching some particular legal conclusion.
On this approach, what the ratio provides is a statement of the factors which the court regarded as providing the reasons that were crucial for reaching its result. So the ratio represents the view of the court that those facts spoke in favour of the outcome, and that they were not defeated by any combination of the other factors present in the case.
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For example, the court decides that the recipient of trust property must hold the property on trust if they are a volunteer even though they acted in good faith. In reaching its conclusion the court must deliberate on the competing merits of these two parties and decide which is better supported.
Both parties were ignorant of the dishonesty or incompetence of the trustee, so neither is favoured on that score; the recipient has acquired property which the trustee did have the legal power though not the right to transfer, so upholding the security of property transactions favours allowing the innocent recipient to obtain the complete title to the property leaving the beneficiary with a personal claim for damages against the defaulting trustee ; the principle that no-one can transfer a greater interest than they possess favours the beneficiary.
Other considerations favour one or other of the parties. In making its ruling, the court concludes that in the circumstances of the case before it the merits favour the beneficiary of the trust rather than the recipient. What is the difference between this approach and that in terms of precedents laying down rules? It lies in the fact that instead of the ratio representing a rule which presumptively settles the disposition of later cases whose facts fall within its scope, it provides a pro tanto justification for such a disposition, i.
And it is this that provides a natural explanation for the practice of distinguishing. The correct statement of the doctrine of precedent is that later courts are bound by cases —not simply by rationes —and bound to either follow or distinguish them. So later courts whose case-facts fall within the scope of the ratio must consider the precedent, but do so in order to consider whether the differences in facts between the later and the precedent cases justify deciding the cases differently.
What the later court cannot do, on the other hand, is to distinguish on the basis of factors that were present in the earlier case even if they were not part of the decision's ratio , because to do so would be to imply that the earlier decision had reached the wrong conclusion on the balance of reasons.
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A later court cannot treat the case as wrongly decided, unless it is able and willing to overrule it. The idea that a precedent is reaching a conclusion on the balance of reasons in the particular case at hand makes sense of a number of other features of common law judgments. It explains the practice of providing elaborate accounts of the circumstances of the case, even though only a small subset of those circumstances matter to the ratio , since they were the group of factors that the court considered in reaching its decision.
It is also consistent with the lengthy discussions of the reasons for the conclusion, and the lack of interest on the part of courts in providing a carefully worded formulation of the ratio: The main challenge for this account of precedent lies in explaining when a later court is bound to follow a precedent which it regards as having been incorrectly decided.
In the case of the trust property, the later court may think the precedent court mistaken to have concluded that the recipient must return the property to the beneficiary. May a later court avoid the result of the precedent by pointing to any general factual difference between the cases e. After all, the balance of reasons never supported the precedent in the first place, so shouldn't it be confined to the narrowest possible statement of its facts?
In which case precedents seem to have very little binding force indeed. One obvious possibility for avoiding this problem would be to ask how the precedent court would have assessed the facts in later case.
But although this would be satisfactory in theory if sometimes difficult in practice , it again does not reflect legal practice. Courts sometimes approach the question in this way, but often they do not, and there is no legal requirement that they do so. A better response is this: A case may be distinguished, but only if that distinction does not imply that the precedent was wrongly decided. So in the later case the court must decide whether the factual difference real versus personal property, implied versus express trust provides a better justification against the earlier decision than the facts of that case on their own.
If it does, then the court may distinguish citing that differences with the original case , since that does not imply that precedent was mistaken. If not—because real property or implied trusts raise no special considerations in this context—then the precedent must be followed. This approach, of course, assumes that it is possible to make these sorts of comparative judgements for arguments that this is not generally possible see Alexander , 34—7.
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Most discussions of precedent focus on the justifications for having a doctrine of stare decisis by which later courts are bound to follow earlier decisions. There is, of course, a prior question of why the decisions of courts should be regarded as making law at all. In some Civilian legal systems, such as the French, the official view is that court decisions do not make law, they merely involve the application of the law.
This follows from a straightforward understanding of the separation of powers: For the courts to make law would be to usurp the legislative function, and to usurp a function to which the courts have no legitimate claim. One distinctive feature of Common Law systems is the existence of central areas of law that have no legislative foundations—such as contract, tort, trusts, and personal property. All of these areas have seen legislative intervention, but most Common Law jurisdictions still leave them on a non-statutory footing. Here the decisions of the courts are the basis of the law.
In practice no modern legal system has functioned without the decisions of the courts playing at least an auxiliary role in settling the content of the law. Formally, the law is found in those five articles, and a court decision is legally flawed if it does not cite at least one of them as the basis for its ruling.
But there is a vast body of cases interpreting and applying those articles, and these cases are regularly cited before the courts to assist them in reaching their decisions, even though judgments themselves do not mention earlier cases. In substance, then, if not in form, this area is partly constituted by judge-made law.
So one question that can be raised about precedent is why it is justifiable for the decisions of courts to be treated in this way at all, i. There is a more specialised question, however. In the Common Law at least, the doctrine of stare decisis requires later courts to follow earlier decisions even if they were wrongly decided.
It should be emphasised that such a conclusion depends upon and is relative to the context provided by existing legal doctrine.
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Take the question of whether parents should be able to recover for the cost of raising a healthy child when it has been born as a result of a negligently performed sterilisation operation on one of the parents. In some legal systems such costs are recoverable, whereas in others they are not. Here it is quite possible that these conflicting decisions are both correct, in the sense that each is correct within its own doctrinal context.
So whether a decision is wrong is not a question of how the case ought to be decided without any reference to the law, but whether it goes against the merits of the legally relevant reasons. The doctrine of precedent thus raises two justificatory issues: For general discussions of the justification for precedent, see: Schauer , —, Golding , 98—, Benditt , 89— It would simply be inconsistent to treat them differently. In the case of precedent this argument is said to favour following the earlier case: This argument is made independently of other concerns such as parties' expectations or community perceptions of the court process or the problem of moral disagreement.
Arguments of this kind certainly have weight in some circumstances. If a legal system is morally legitimate and has authority over those subject to it, then it is inconsistent for one person to be treated less or more favourably by the law than another person whose situation is legally indistinguishable. A later case should only be treated differently to an earlier case when the law itself has been changed by the legislator or the courts, including cases where the court overrules an earlier decision in reaching a decision on the case before it So concerns of consistency provide some justification for treating earlier decisions as sources of law, rather than approaching each question anew when it arises again.
This fact does not, however, support a doctrine of following earlier decisions even when they are wrong , i. If the earlier decision was wrong then the person subject to it may have been treated more or less favourably than they should have been treated. If they were treated more favourably then clearly that should have been corrected e.
If it was not corrected then the person had an undeserved slice of good fortune. But that a mistake was made in the earlier case is not—in itself—an argument for repeating the mistake in the later case. The first litigant did not deserve their outcome, even if for reasons of the finality of legal processes they are entitled to retain it. Equality does not demand the repetition of mistakes.
On the other hand, if the original litigant was treated less favourably than they deserved then again that mistake should be corrected if it can be e. Taken in isolation from other considerations such as expectations and predictability , equality does not support the bindingness of incorrect decisions. By contrast, arguments of equality bite where the court in the original case was confronted with a situation where the correct outcome was indeterminate, i. This may be due to each outcome being equally well supported by reason, or by the outcomes being supported by different, incommensurable, values.
In some of these cases the law has closure rules to settle the matter, e. A possible illustration of such indeterminacy is the position of a person who quite innocently buys stolen goods. In some legal systems the purchaser acquires good title to those goods, whereas in others such as the Common Law she does not. Here, arguably, the merits of the two innocent parties the purchaser and the original owner are on a par, and all the law can do is choose which one is to prevail.
So where an outcome is underdetermined there are arguments of equality for later courts following the earlier decision rather than adopting any of the other possible solutions. None of this, of course, is an argument for following earlier decisions that were wrongly decided, since these are cases where the earlier court did not make a mistake, but took one permissible option. Another common argument in favour of precedent is in terms of protecting expectations: The fundamental problem with this line of argument in the case of precedent is that it suffers from a type of circularity.
It is true that legal systems that follow a practice of precedent create expectations that earlier decisions will be followed in the future. But it is important to bear in mind that it is only legitimate expectations which need to be considered in decision-making, not any expectation which someone forms. The mere fact that a decision was made in the past provides no reason in itself to expect that it will be followed in the future, and certainly creates no entitlement to expect that it will be followed. Where there is an institutional practice of following past decisions, on the other hand, the reliance of those subject to future decisions may ground legitimate expectations, but it is always open to the institution to announce that it will no longer treat past decisions as binding and will, instead, decide each case on its merits.
Whether a past decision creates legitimate expectations, therefore, depends upon there being good independent reasons for the institution to follow its earlier decisions, or upon the existence of a practice of doing so. But the practice itself should only be maintained if there are good independent reasons for having it: The preceding arguments for precedent presuppose that decision-makers can correctly ascertain the merits of the cases before them, but law of course operates under non-ideal conditions where decision-makers make mistakes and disagree among themselves about the merits of cases.
In practice, the outcome of a case may be uncertain not simply because the correct result is rationally indeterminate, but because the decision-makers are fallible. Given this, a practice of precedent in law, it can be argued, has a number of advantages due the fact that it may make institutional decisions replicable see Eisenberg , 10—12, 23—4, whose coinage it is; and Schauer , —8.
That a decision is replicable refers to the fact that it is possible for others to make an informed judgement on the likelihood of a particular outcome, in the light of the relevant legal materials, the canons of reasoning used in a system, and an acquaintance with the general culture from which the decision-makers are drawn. Replicability means that decisions are more predictable than if they were made de novo each time. This, in turn, allows individuals to make plans that are consistent with the law and to avoid falling foul of it, and hence allows them to be guided by the law. This provides a rationale both for treating earlier cases as contributing to the law and for the doctrine of stare decisis.
Other things being equal, it is better if the law is predictable than if it is unpredictable. It should be noted, however, that such a rationale does not necessarily support as strong a doctrine of precedent as that found in many Common Law jurisdictions. The concern for predictability needs to be weighed against the moral desirability of the law in question.
This would suggest that a in some circumstances lower courts should be allowed to depart from the decisions of higher courts where their view is that the earlier decision was in the context of the relevant law clearly morally undesirable, b giving greater freedom to courts to overrule their own decisions on the basis that there was a morally preferable decision in that legal context. A final justification for the doctrine of precedent is that it is desirable to give courts the power to make law. The thought here is that it is valuable for the courts to have the power to improve and supplement the law Hart , —6; Raz , — The assumption underlying this justification is that the law is sometimes incomplete and in need of being given greater specificity, or that it is erroneous and needs to be corrected.
On this view the courts are analogous to delegated legislators: Although the need for law-making is often cited as a justification for precedent, the substance of the argument normally boils down to concerns with either equality or replicability. If the law has resolved an indeterminacy in one acceptable way in the past, then precedent helps to ensure that future litigants are treated as un favourably as past litigants, and so all are treated equally.
The Five Types of Legal Argument by Wilson Huhn
In addition, if the application of the law is indeterminate, due to the type of value conflict involved or the nature of the decision-makers, then it is desirable for judicial decisions to constitute precedents in order to make the law more replicable in the future. On the other hand, if the argument in favour of courts having law-making power is that they can thereby improve the law, this is really an argument in favour of having the power to overrule precedents, rather than an argument in favour of precedent in the first place.
Tradition is looked to in various areas of law, such as the law of commercial transactions, where courts consult industry customs and traditions.
Similarly, social traditions play a role in the allocation of liability for tort. Policy — A policy argument construes the law by inquiring into the underlying purposes of the law.
It determines the meaning of the law based on the values the law is intended to serve. Policy arguments are different from the other four types because they are consequentialist in nature; that is, unlike the other four types of arguments, which look to the past in that they are appeals to authority, policy arguments look to the future by arguing that a certain interpretation of the law will bring about a certain state of affairs — and that this state is either desirable or unacceptable in the eyes of the law. Understanding each of these types of arguments can help law students and young attorneys tasked with writing briefs in learning to formulate effective legal arguments.
At least, not like this. The types of arguments are introduced to students, but not distinguished from each other very well except perhaps precedent vs. You are commenting using your WordPress. You are commenting using your Twitter account. You are commenting using your Facebook account. Notify me of new comments via email.
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