As law has become a more textual discipline, with formalized procedures for creating and proclaiming legal norms, 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. 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). Huhn describes and explains how lawyers use logic, analog thinking, and policy analysis to solve increasingly difficult cases.
The fourth edition of the book contains new chapters that illustrate the political arguments using graphs and advise law students on how to answer dissertation exam questions. “The book serves as a good introduction to legal analysis and shows students the importance of identifying the categories of legal arguments they encounter.” – Ben Wiles, law student Some philosophers and political scientists would go even further. They would argue that, since it is impossible to write down all the rules that govern society in an authoritarian and complete manner, the law must be supported by a significant set of unwritten, tacit, traditional and customary rules. At some point, judges and lawyers will have to invoke these rules to present legal arguments. The following type of argument is the argument based on intent or goal. This is a subtype of textual reasoning where, instead of examining the simple or objective meaning of a legal rule, you focus on the intent or purpose behind the rule. This type of argument is often used in the interpretation of contracts, where the court discovers the meaning of a contractual clause by resorting to the intentions of the people who wrote it. It is also used in legal and constitutional interpretation when lawyers focus on the intention of the legislator when drafting a law or on the intention of the “authors” when drafting a constitutional text. “The five types of legal arguments will help you change the way you read from simply understanding and memorizing legal texts to critically analyzing and interpreting the text and arguments put forward in the text. I wish I had read this book during my 1L year. Huhn law student Kathleen Rose shows that there are five different types of legal arguments (based on text, intent, precedent, tradition, and politics), and through countless examples, this book teaches law students, lawyers, and judges how to identify, create, attack, and evaluate each type of argument.
The book contains useful tips and illustrations on how to weave the different types of arguments together to make them more compelling. The third edition of the book adds a chapter on the role that analogous reasoning plays in solving difficult cases and in the development of law. This is an example of a strategy-based argument. Brooke LJ examines the possible outcome of applying the defence of necessity to this case, arguing that it is unlikely to have negative consequences (this will not give potential murderers a simple excuse). Therefore, he is prepared to apply the defence to this case. (Note: There are many other political arguments in the decision – this is just one example).
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