Types of Legal Argument

I had a quick flick throught the book for this week’s reading, and I have had the benefit of reading the summary that Tim has posted on his blog.

So instead of repeating points already made, I thought I would draw everyone’s attention to a section in a book called “Letters to a Law Student” by Nicholas J. Mc Bride, because it deals with a similar topic to the five types of legal arguments book, but from a slightly different perspective. Most of the book is for those who haven’t yet begun to study law, but there are a few paragraphs I found myself coming back to as a student when marshalling my arguments for moot court because they give you a clue about how to make the kind of legal argument that would persuade a judge (as opposed to a law professor). Keeping these four points in mind as I wrote kept me focused on the crucial question: what do I want the judge to do with the information I am presenting?

Here is my summary:

McBride says there are four basic reasons that a judge decides a case. Depending on which of these reasons a judge chooses to apply (or emphasise if the judge uses more than one type of reason), the outcome of the case can be different. The judge will look at all the materials presented and come to a decision based on one of the following. 

Reason 1: The formalistic approach

The judge decides the case based on his interpretation of the rule. The material used to come to the decision is the statute, case or contract where the rule is contained.

Reason 2: The principled-based approach

The judge takes an overview of all the relevant precedent in a particular area, and gleans a principle based on the fact that many previous cases seem to be giving effect to a particular idea - a common thread that runs through all the disparate cases. 

Reason 3: The policy-based approach

This sort of judgment focuses on the consequences on future behaviour that would result from the judgment itself. 

Reason 4: The justice-based approach

This is where the judge simply thinks it is fair that the cases is decided in the particular way. 

Finally, there is the “opaque” approach - the sort of judgment that does not make it clear why the case was decided in the way that it was. 

McBride asserts that the public generally expect cases to be decided for Reasons 1 and 2, or a combination that results from the statutes and the cases. By contrast, when it looks as if a judgment has been made for reasons of fairness, justice and the public interest, the public start to think that the system is too subjective and say things like: “If only I had got a different judge!”

Whereas if the decision is based on statutes and cases, the losing party can be consoled by the thought that it was the rule, not the judge, that was his or her downfall. 

My guess is that a great many arbitrators feel the same way. Unless they have been specificaly requested to deliver an ex aequo et bono or an unreasoned award, they will want to (try to) render an award that commands the respect of both parties. For this reason, it is my suggestion that policy and fairness arguments should be very sensitively addressed to the tribunal. My aim would be to provide the arbitrator with sufficient amunition to write an award that could be based entirely on Reasons 1 and 2. I would feed in Reasons 3 and 4 where appropriate to (as Professor Bayer say) “make the arbitrator feel good” about coming to the decision you want him or her to come too.

What are your views on policy and fairness arguments? Do you think my approach is too formalistically British?