Law & Society Blog

My last entry on the subject of legal reasoning outlined the fundamental distinction between the external and the internal point of view. While the external point of view is of critical importance to parties and observers of the legal system, such as sociologists, philosophers, economists, and those involved in other “law & …” disciplines, the internal point of view is determinative for participants in the legal system, including judges and, in the last consequence, lawyers. As a result, lawyers make and judges consider doctrinal arguments. A claim is legally valid, if and only if it is backed by a statute, a regulation, or by precedent. Almost always, there will be competing claims to derive authority from these sources of law. Ultimately, the court’s opinion will validate certain of these claims and dismiss others.

Once again, I do not suggest that external considerations don’t influence a court’s decision. For example, a judge might be unfairly prejudiced. But he or she can’t openly base an opinion on external factors such as prejudice. The judge can’t say: “The state wins, because I’ve been a government person all my life, and if you are charged with a crime, then chances are that you’ve done at least something wrong.” (Of course, he or she could write just that. But that opinion would be appealed and reversed right away.) Because of the constraints imposed by the participant’s status, the biased judge would have to express his or her prejudice within the forms provided by the law. For example, the biased judge could write: “The defendant’s motion to suppress the evidence is denied, because the defendant consented to the warrantless search of his apartment when he failed to protest as the police broke through the front door. The fact that the defendant was asleep and somewhere else at the time is irrelevant.” Of course, that’s not a great legal argument, but it is a legal argument in form and content. So, in a sense, the hope and the promise of the legal system is that not all external reasons can be transformed into valid internal legal arguments.

In any event, the judge, the law clerk, and the lawyers, once they have assumed their roles as participants, are confined to making legal arguments. (For purposes of this entry, I don’t distinguish between law and equity.) Every complete legal argument has the same objective, to assign a binary value (lawful/unlawful) to a claim. Of course, there are subsidiary points along the way, mostly of definitional nature (e.g., is “a wink and a nod” an agreement?), but the complete argument is always about whether a claim is lawful (valid, backed by the law) or unlawful (invalid, not backed by the law). (A more detailed discussion of whether the distinction should be lawful/unlawful or lawful/not lawful can be found here.) The next entry in this series will address the craft of making a good legal argument.

License

This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.