Juridical arguments are argument schemes considered by law professionals as the most important and typical in their field, and presented as the basis of “juridical logic” (Perelman, 1979). Such arguments are important for the general theory of argumentation insofar as they illustrate the explicit and controlled implementation, in the field of law, of general principles currently met in ordinary argumentation. They are presented here from this perspective.
Cicero’ Topica is perhaps the first essay to bring together a list of legal inferential principles, which are historically significant in all the classical fields of argumentation study. S. Interpretation 2; Collection 2.
These juridical arguments rule the interpretation of legal texts and their application to concrete cases. They allow the application of a text to a case, possibly by extending its meaning and legal force. Given a fact “f” submitted to legal evaluation on the basis of a code (legal, religious…), it most often happens that the judge can attach “f” to a category M mentioned in the code in order to apply to “f” the legal provisions concerning m.s, the members of the category M. It may also be the case, however, that the code does not contain a category which is immediately relevant to the case at hand. This may occur, for example, if there are equally good reasons to categorize “f” as an M or as an X. This situation corresponds to a stasis of categorization. Such stasis might evolve into a stasis of definition, where the code must be interpreted in order that it also applies to “f”. In such cases, the judge does not simply apply the law, but produces the law.
The process of interpretation is not limited to the juridical domain. Generally speaking, it starts from a proposition P, which is to be interpreted. In the interpretation process, P takes the status of argument, accepted because it belongs to a stock of statements, a Code, a Regulation, a Sacred Text… itself accepted by the community of interpreters or believers. A proposition Q is then derived from P. Q has the status of a conclusion, which corresponds to an interpretation of P. The juridical argument schemes are the basic tools that rule such derivations in the domain of law. The limit of interpretation is fixed by the principle “what is clear must not be interpreted”. This principle enshrines the existence of a literal meaning, based on grammatical data. If, in order to vote in a Syldavian presidential election, a citizen must be 18 and a Syldavian national, nobody meeting only one of the two criteria will be admitted to vote. There is nothing to interpret.
1. Three collections of juridical argument schemes
Specialists in legal arguments offer lists of argument schemes that are particularly important in law. The lists provided by Kalinowski and Tarello are frequently included in the general framework of argumentation studies (Perelman 1979, Feteris 1999, Vannier 2001). We have added the list provided by lawoutlines.com[1] (no author’s name). These three lists make extensive use of Latin terminology.
— Kalinowski (1965) lists 11 argument schemes:
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- A pari
- A contrario sensu, or a contrario
- A fortiori ratione, or a fortiori
- A maiori ad minus, or from the biggest to the smallest
- A generali sensu, or argument of the generality of the law
- A ratione legi stricta
- Pro subjecta materia, or consistency argument
- From preparatory work
- A simili, or argument by analogy
- Ab auctoritate, or argument from authority
- A rubrica, or argument from the title
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— Tarello (1974 ; quoted in Perelman 1979, p. 55) lists 13 argument schemes:
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- A contrario
- A simili, or argument by analogy
- A fortiori
- A completudine
- A coherentia
- Psychological a.
- Historical a.
- Apagogical a.
- Teleological a.
- Economical a.
- Ab exemplo a.
- Systemic a.
- Naturalist a.
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— Lawoutlines considers 10 argument schemes:
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- By analogy or argument a pari
- Of greater justification or argument a fortiori
- By contrast or argument a contrario
- Of absurdity or ab absurdum
- From generality or a generali sensu
- From superfluity or ab inutilitate
- From context or in pari materia
- From subject matter or pro subjecta materia
- From title or a rubrica
- From genre or ejusdem generis
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2. How many argument schemes?
34 argument schemes are specified.
— Four argument schemes are included in the three lists; arguments:
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- A contrario ; a contrario sensu ; by contrast or a contrario, S. Opposites.
- A fortiori ratione, a fortiori ; of greater justification or a fortiori, S. A fortiori.
- A pari argument is considered separately, or as equivalent to the argument by analogy (“by analogy or a pari”).
- A simili argument is assimilated to analogical argument, S. Analogy; A pari.
— Three argument schemes are common to two lists; arguments:
— Fifteen (or twelve) are specific to one of the three lists; arguments:
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- From preparatory work, historical, psychological, teleological, S. Legislator’s Intention.
- From context or in pari materia, S. Consistency
- Ratione legi stricta, S. Strict Meaning
- Ab auctoritate, S. Authority ; Precedent
- A completudine, S. Completeness
- A coherentia, S. Non-contradiction ; Consistency
- Economical, S. Superfluity
- Ab exemplo, S. Precedent ; Example
- Systemic
- Naturalist, S. Weight of circumstances
- From superfluity or ab inutilitate, S. Superfluity
- From the same genus, or ejusdem generis.
We thus obtain 22 different legal topics, which may be reduced to 19 if we admit that, under various labels, the argument from preparatory work, the historical, psychological and teleological arguments refer to what Perelman globally terms the “legislator’s intent” (1979, p. 55).
3. Groupings
These 22 legal topics can be divided into sub-groups as follows.
(i) General arguments, not specific to law, operative in any controlled argumentative situation:
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- From consistency (a coherentia)
- A pari, a simili, analogy
- From genus
- A contrario
- A fortiori
- Fom the absurd
- From precedent
- From authority.
In law, these last two forms of argument are based on, and reinforce, the historical continuity of legal practice.
(ii) Arguments legitimizing interpretations based on the conditions of production of the law. Arguments based on:
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- Preparatory work
- History (of the law)
- The legislator’s intention, teleological argument
- Psychological argument.
(iii) Arguments appealing to the systemic character of the code of laws to legitimate an interpretation. Arguments based on
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- Systemic considerations
- Coherence (a coherentia, in pari materia)
- Comprehensiveness
- Necessity (all the articles of the code are necessary)
- The title of a section of the code, a rubrica.
These argument schemes aassume that the text to be interpreted is “perfect”, in the sense that it contains neither contradiction nor redundancy. All content is necessary; the text contains nothing superfluous, or redundant. All elements hang together; they have meaning only by their relation within the structure. This insistence on the systemic character of the legal code could lead to a mechanical view of the law and its application. Ultimately, all the properties of a formal system are attributed to the code.
The establishment of precise definitions of these forms of argumentation within the field of law, their illustration with examples, the determination of the conditions for their application, and the problems connected with their construction and use, fall within the jurisdiction of lawyers.
4. Prescriptive scope of the topics
This set of arguments legitimizes the interpretation of the law in view of application to specific cases. When used in the imperative form, this set of arguments becomes a guide for the drafting of laws. For example, as the argument from superfluity (economic argument, or argument from uselessness) assumes that the laws are not redundant; the legislator will endeavor to avoid any redundancy in the drafting of the law, and the same for the other interpretative principles.
5. Generalization to other fields,
[1] Legal tradition-Trahan.doc. P. 21-22.
www.lsulawlist.com/lsulawoutlines/index. php?folder=/TRADITIONS (09-20-2013)