Precedents are a similar form of reasoning.* Judges review the facts of two cases to determine whether they are relevantly similar. If they are similar in relevance, they apply the same rule to both cases (according to the rule of the case of the older/superior court). If they are not significantly similar, they can apply a different rule, perhaps a rule that comes from another case, or a rule that they invent/modify depending on the circumstances. But it`s not that easy. Textual legal regulations are rare. The terms of the text must be interpreted. Their true meaning must be determined in the context of the present case. Sometimes the meaning may be obvious or undisputed, but often this is not the case. The Irish rule of attack, for example, contains a number of vague or uncertain terms. What does it mean to use force “directly or indirectly”? Slapping someone in the face is certainly direct violence, but what if you throw water in their eyes? Is it an indirect force? When you think about it, what is “power” anyway? In my experience, it is rare for courts to use political arguments to simply create completely new legal rules.

Maybe that happened before at the time. What is more likely these days is that there is a dispute over which rule (or the interpretation of a rule) should apply to a case. To resolve this dispute, the courts will consider the likely outcome of the application of the rule to the case. If they think the result is consistent with their preferred evaluation theory, they will apply it. Otherwise, they look for an alternative rule (or an interpretation of the rule). Here`s an example. The English case of Re A (Conjoined Twins) is notable for a number of reasons. The facts are known.

A pair of twins (called Jodie and Mary in the case) were born in August 2000. Jodie was the stronger of the two. Mary was only kept alive by a common artery she shared with Jodie. If they stayed connected, the two would almost certainly die. If she were separated, Jodie would live and Mary would die. The doctors wanted to separate them. Parents objected. The case was sent back to court to find out whether doctors were legally allowed to proceed with the separation. Every time you go beyond the strict wording of a legal text, you enter troubled waters. He was of the view that lawyers and judges should deal exclusively with the strict textual formulation of the text. You should not add words that are not there or distort the literal meaning with your own preferences or ideas.

Furthermore, the idea that some legal texts have intentions or goals behind them is problematic because they are often conceived by groups of people who may lack a common intention or who were supposed to provide timeless abstract principles for a society (this is a common argument for constitutional texts – if you are interested, I have a few articles on some of the philosophical problems of constitutional interpretation). written). Here is an example of an argument based on intent. There is a famous American case called In Re Soper`s Estate. It was adopted in Minnesota in the 1930s. The facts are somewhat unusual. It was a man named Ira Soper who was married to a woman named Adeline Westphal. They lived in Kentucky. Soper must have been unhappy because he faked his own suicide and fled to Minnesota. There he took on a new identity (John Young) and married another woman named Gertrude Whitby.

As Soper/Young was not dead, his initial marriage to Adeline was still technically valid. Since it was also a criminal offense to be married to two women at the same time, it meant that Gertrude was not technically his legal wife. This technique becomes important for the case. The law as set out in previous court decisions. Synonymous with precedent. Similar to the common law, which stems from tradition and judicial decisions. Several authors have presented frameworks and taxonomies that attempt to bring order to the chaos of arguments in favor of legal rules. I really like Wilson Huhn`s framework, The Five Types of Legal Argument, which not only narrows legal arguments down to five main forms, but also identifies all the different ways of arguing for or against a legal norm in these five main forms. I will try to explain Huhn`s framework in an abbreviated way in the rest of this article. However, I have to say that I`ve tweaked its frame a bit over the years and I`m not quite sure what parts of it are its own and what bits are my own modification. Most of it belongs to him.

Some parts belong to me (and most of the examples are the ones I use in my class, not the ones from Huhn`s book). You might disagree. They may think that the cases are more similar than the judges suggest, or that they are trying to find structural differences to support sectarian or intolerant views. It does not matter and it is part of the way we criticize similar arguments. Nevertheless, this case sequence is a good example of how previous/analogous arguments can work. A full-time lawyer employed by the federal courts to legally defend defendants who cannot afford a lawyer. The judiciary administers the Federal Defence Lawyers Programme in accordance with the Criminal Justice Act.