Law & Society Blog

What are those building blocks of a legal world view that I am suggesting should be compared? They are arguments or argumentative patterns that convince lawyers from a specific legal system or legal culture. I submit that there are some arguments that are convincing to a common lawyer (with no further support) that aren’t convincing to a civil lawyer, and vice versa. There are structures of argumentation that considered acceptable among civil lawyers, but that are unacceptable to common lawyers, and vice versa. This is the fundamental level, the bedrock of legal meaning upon which a body of law is built with all the aspects that can be made subject to macro and micro comparisons.
One way to test for the bedrock of convictions and arguments is to see what questions are never asked. The point at which further reasoning is not demanded in legal discourse is the point at which the argument is considered meritorious, convincing, and lege artis.
To stay with the previous example of contract law. In US common law, the following argument is prevalent: “The law cannot enforce every single contract. People exchange promises, such as dinner invitations and RSVPs, that would be both awkward and impractical to enforce. Consideration separates contracts that should be enforced from those that should not be enforced. Therefore, a contract without consideration is unenforceable.”
What are the questions never asked? First: why consideration and not some other criterion? It does not follow from the fact that the law cannot enforce every contract, that consideration is the right criterion of enforceability. There may be others. Second: Why? Why can’t the law enforce every contract? If two citizens draw up a legal agreement, in writing and signed at a solemn closing, that they are obligated to follow a dinner invitation one has made the other, why shouldn’t the state enforce it? Or put differently, why deny access to the courts if the parties were as serious, thoughtful and determined as they would be in a commercial transaction? What justifies the loss of civil liberty (the liberty to bind oneself to a dinner invitation, on pains of damages awarded by a court of justice)?
The example is a bit crude perhaps. It is meant to illustrate that insufficient and formally incomplete arguments are permissible in a legal system, if they connect to the fundamental arguments of the law. In fact the argument doesn’t appear insufficient or incomplete in the mind of a Common Lawyer. Contract and consideration are connected and the connection does not require further support.
Questions never asked, such as this one, are the first thing the comparative lawyer should take into account. They inform the comparison of the law proper.

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