PSC 202 March 20, 2007

7 Characteristics of Legal Arguments

1. Doctrine – Tests/formulas used to approach issues (e.g., “strict scrutiny” test applied to laws that make distinctions on the basis of race).

2. Reliance on Precedent – material that judges use to make decisions comes from

previous decisions: reasoning by analogy. 3. Canons of Construction – rules of interpretation that judges and lawyers use to

approach a text. (for example: “the Constitution should be interpreted based on the intent of the framers” vs. “the Constitution was designed to be flexible and should be interpreted in light of the present situation”, or “statutes should be assumed to be constitutional”, and those arguing that it’s not constitutional thus have the burden of proof).

4. Inconsistency or incoherence – those making legal arguments bring forward all

sorts of proofs or supports to advance the main claim even if they are not mutually consistent. This could be seen as a weakness in a political argument, but not in a legal argument.

5. Dialogue with Decision-Makers – Judges recognize that they are only one link in

a decision-making chain. (for example, the Court may explicitly ask for guidance from another court or decision-maker. Another example – Higher court may refuse to hear a case and let the decision of a lower court stand. Judges know that their decision regarding a particular state law may have an impact on other states).

6. Judicial Authority – Courts/Judges consider the following question: Is this

something that the court can/should decide at all? The question is technical and/or philosophical. (ie. Does a proposed lawsuit have legal standing?)

7. Judicial Role – What is the judge’s job? What is the point of law, or of engaging

in legal argument. (To follow the law as written? To fix specific problems? To apply morality or work toward “the good society”?). Argument resting on judicial role often takes the form of a deductive argument (reasoning from principle).