LEGAL TECHNIQUE

A. Types of Legal Argument1

1.

Legal argument

A legal argument is a statement of propositions or reasons based on

the materials of the law. It represents an interpretation or concept of what
the law is as applied to a situation or set of facts.
2.

Sources of legal argument

The materials of legal argument come from any of the sources of law,
identified as:
a. Text. The text or language of the law or legal provision involved;
b. Intent. The perceived intention behind the enactment of the law;
c. Precedent (or Case Law). The interpretation given by the Supreme
Court on the meaning of the law applied to a controversy;
d. Policy. The underlying values and interests that the law is meant to
serve;
Arguments that proceed from these sources are the kinds of arguments
that lawyers and judges accept as legitimate. 2
B. Text as a Source of Legal Argument
3.

Legal text

The term legal text refers to the express language of the law. The law
refers to the Constitution, statutes, ordinances, administrative rules, and
other government issuances that have the force of law. Included in the
definition of legal text are privately written documents such as contracts,
wills, deeds, checks, and promissory notes. Although these private
documents are not law in and of themselves, they are legal texts because
they create or alter legal rights. 3
1 Much of the materials discussed is based on Wilson Huhn, The Five Types of Legal
Argument, 2d Ed. (2008)
2 Id., at 14; The author cited tradition as the 5th type of legal argument, consistent with the
common law roots of the United States system
3 Id., 17

Legal text is frequently unclear as applied to particular factual

situations. Thus the examination of and interpretation of legal text by courts
has assumed critical importance. 4
4.

Plain meaning

The plain meaning rule means that the text or express language of the
law is to be interpreted according to its plain meaning. What this signifies is
that the text is clear enough that it does not require resort to any of the
other modes of interpretation. Text comes first, and if it is clearly dispositive,
then the inquiry is at an end. 5 In short, this rule seeks an unambiguous
definition of the words of the written rule. 6
5.

Canons of construction

The plain meaning rule relies upon the definitions of particular words
and phrases to interpret text. In contrast, the canons of construction are
rules of inference that draw meaning from the structure or context of a
written rule. Canons of construction can be used to interpret any legal text:
constitution, statutes, regulations, ordinances, contracts, or wills. 7
There are two types of canons of construction: textual canons and
substantive canons.
a. Textual canons operate like rules of syntax in that they are used to
infer the meaning of a rule from its textual structure or context. Example:
Expressio unius est exclusio alterius (the expression of one thing in a law
means the exclusion of others not expressly mentioned).
B. Substantive canons are interpretative principles that are derived
from the legal effect of a rule. Examples: the canon that rules of procedure
are to be construed liberally relaxes the strict application of rules based on
the circumstances of a case; the canon that criminal laws are to be strictly
construed protects against vague criminal statutes. 8
To sum up, the canons of construction draw inferences about the
meaning of a rule from its textual or legal context. 9
6.

Intratextual arguments

4 Id.
5 Id., 20, citing other sources
6 Id., 29
7 Id., 22-23
8 Id., 24
9 Id., 29
2

Intratextual arguments use one portion of the legal text to interpret

another portion. In effect, the entire legal document -- the constitution,
statute, regulation, ordinance, or contract maybe used as a codex or
dictionary to interpret the meaning of specific provisions.
Intratextual arguments follow one of two formats: they either compare
the words used in one part of the text with the words used in another part, or
they deduce the meaning of portions of the text from their position within
the organization of the text.
Thus, intratextual arguments look to the placement of a provision of
law within the organization of a document, or to the use of similar or
dissimilar terms in other portions of the document, to determine the
meaning of the provision. 10
7.

Outline of argument based on the law

a.
b.
c.
d.

Position: The answer is X.

The law applicable is (state the law).
The elements of the law are (state all or the relevant elements).
The elements of the law are proved/disproved by the following facts
(state).
e. Therefore (conclusion).
C. Intent
8.

Contextual names

The second source of law is the intent of the people who wrote the
text. This principle is applicable to every area of law, but it is called by
different names in each area. In constitutional law, this type of interpretative
argument is known as the intent of the framers or original intent.
The same interpretative principle is invoked to interpret statutes, and
is called legislative intent or intent of the legislature. Courts also consider
the intent of administrative agencies in determining the meaning of
administrative regulations. In the law of contracts, the court look to the
intent of the parties, and likewise, in interpreting testamentary provisions,
the intent of the testator is sought to be given effect. 11
9.

Evidence of intent

10 Id., 29
11 Id., 31-33
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Evidence of intent may be drawn from the text of the law itself, from
previous versions of the text, from its drafting history, from official
document, or from contemporary commentary.
a. Evidence intent from the text itself. The statute itself states the
manner by which it is to be interpreted.
b. Previous versions of the text. When the current version of the law
differs from previous versions, the courts naturally infer that the drafters of
the current law intended to change the law. This type of argument can be
used to interpret a constitution or a statute.
c. History of the text. A common evidence of legislative intent is drawn
from the minutes or transcripts of deliberations in Congress before the law
was approved.
d. Official comments. This category of proof of legislative intent is
drawn from commentaries or notes that accompany statutes, especially
codifications of several laws related to specific fields.
e. Contemporary commentary. Commentary on the meaning of legal
text around the time of its adoption is another important category of
evidence bearing on the intent of the people who adopted the text into law.
Law review articles are a common source of commentary on pending or
newly adopted legislation, and are a secondary source of proof of intent. 12
10.

Outline of argument based on intent

a. Position: The answer is X.

b. The law applicable is (state the law).
c. Based on (state evidence of intent), the intent behind the law (or
provision) is (state the intent).
d. Therefore (conclusion).
D. Precedent
11.

Stare decisis

Supreme Court decisions applying the law to specific controversies

have a binding authority, compelling obedience by lower courts and
government agencies under the principle of stare decisis (to stand by things
decided). The principle, however, applies only to the holding (ratio
decidendi) of the previous case. Judicial reasoning that is unnecessary to a
decision (obiter dictum) has no binding effect.
12 Id., 34-39
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The use of precedent is essentially reasoning by analogy. This process

of analogical reasoning is described thus:
The basic pattern of legal reasoning is reasoning by
example. It is reasoning from case to case. It is a threestep process described by the doctrine of precedent in
which a proposition descriptive of the first case is made
into a rule of law and then applied to a next similar
situation. The steps are these: similarity is seen between
cases; next the rule inherent in the first case is
announced; then the rule of law is made applicable to the
second case. 13
The first step identifying a similarity between cases is often difficult.
What is it that makes one case similar to, or different from, another? Which
points of similarity and dissimilarity are important? The similarity of one case
to another may be measured on two levels: facts and values. One may say
that one case is similar to another because they implicate the same
underlying values.14
12.

Outline of argument based on precedent

a. Position: The answer is X.

b. The facts are analogous to those in the case of ___ where the Supreme
Court came out with X ruling.
c. The facts of this case and those in the cited case are similar/ dissimilar
(compare and contrast).
d. Therefore (conclusion).
E. Policy
13.

Differences from other types

The core of a policy argument is that a certain interpretation of the law

will bring about a certain state of affairs, and this state of affairs is either
acceptable or unacceptable in the eyes of the law. Deriving rules from text,
intent and precedent is inherently conventional: such rules represent specific
choices that lawgivers have already made. Deriving rules from policy
arguments, on the other hand, is inherently open-minded; the specific
choices have not yet been made. Text, intent and precedent look principally

13 Id., at 42-43, citing Edward Levi, An Introduction to Legal Reasoning (1948)

14 Id., at 43
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to the past for guidance; policy arguments look to the future for
confirmation.15
A policy argument construes the law not by consulting a dictionary, but
by inquiring into the underlying purposes of the law. The meaning of the law
is determined not by a literal definition of its terms but by reference to the
values that the law is intended to serve. 16
14.

Roots in legal realism

The traditionalist view of law was that it is like science and

mathematics. Law consists of certain principles or doctrines that operate like
general axioms of conduct that could be applied with constant facility and
certainty to the whole range of human affairs by abstract syllogistic
reasoning.
Legal realism, in contrast, takes off from the view that the legal rules
are to be understood and applied in the realm of human experience,
expressed in Justice Holmes aphorism that the life of the law is not logic but
experience. What happens in life with the law? What does a law mean to
ordinary people? The final cause of the law, Justice Holmes added, is the
welfare of society. In interpreting the law, courts must consider the
underlying policies of the law.
15. Structure of policy argument
Policy analysis proceeds in two steps. Every policy consists of a
predictive statement and an evaluative judgment. The court first predicts the
consequences that will flow from giving the law one interpretation or
another, and then decides which set of consequences is more consistent with
the underlying values of the law.
16.

Outline of argument based on policy

1. The policy behind the legal provision is (state the policy)

2. This policy will be strengthened/ undermined (relate to the position
youve taken)

15 Id., 51
16 Id., 53
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