The Five Types of Legal Argument
- Introduction; Textual Arguments – Plain Meaning, Canons of Construction, and Intratextual Arguments (6/18/2013 7-8pm)
- Historical Arguments – Intent, Precedent, and Tradition (6/20/2013 7-8pm)
- Policy Arguments (6/25/2013 7-8pm)
- Identifying and Attacking the Different Types of Arguments (6/26/2013 7-8pm)
- The Stages of Legal Reasoning – Logic, Analogy, and Policy (6/27/2013 7-8pm)
Why take this course?
“How could it be,” I wondered. “How is it possible that people can legitimately disagree as to what the law is?” I can understand how people can argue about what the facts of a case are. People lie or are mistaken. But law is different, I thought. I thought that the law is something absolute and pure, and that people who are well-informed, intellectually honest, and fiercely dedicated to the rule of law should all come to the same conclusion as to what the law is. Why do people even disagree about a basic question such as precisely what our fundamental rights are? After all, you would think that if our Constitution is a law, surely someone is right and someone is wrong about the meaning of the Constitution - one side is being faithful to the Constitution and the other is being unfaithful.
However, the idea of "the law" as a single, unitary concept is in part an illusion. The reason that intelligent people of good faith may legitimately disagree about the meaning of the Constitution (or the meaning of any law) is that law arises from multiple sources, and different people consider different sources of the law to be more or less authoritative.
This program will explain what the different sources of law are, and the different types of legal arguments that spring from those sources.
Who should enroll?
I have presented this program to judges, lawyers, and laypersons, but it is perhaps most valuable to law students and persons about to enter law school. When a professor calls upon us in class, it is our earnest hope that when we open our mouths to speak, something will come out! In this five-part program I will teach you about the different types of legal arguments, as well as their strengths and weaknesses. You will learn how to identify, attack, and evaluate the merits of legal arguments.
Brief summary of the five types of argument
As noted above, law is not pure and homogenous. It is instead composed of many elements. Like a river it draws upon many sources, and to understand the law it is necessary to trace every argument to its source.
Law is based upon legal text, the drafters’ intent, judicial precedent, the traditions of the people, and (hopefully) sound policy. The five types of argument are therefore text, intent, precedent, tradition, and policy. This program explores the content of each type of argument (that is, the data that judges and lawyers use to construct each type of argument), the structure of each type of argument, the characteristic strengths and weaknesses of each type of argument, how to construct persuasive arguments, how to attack legal arguments, and how to evaluate the their relative persuasiveness.