Juridical Arguments: Three Collections

LEGAL ARGUMENTS

Legal scholars consider legal arguments to be the most fundamental argument schemes in their field. These arguments form the basis of “legal logic” (Perelman, Logique jJuridique, 1979). They are significant to the general theory of argumentation because they demonstrate the explicit and controlled application in the field of law of general principles currently found in ordinary argumentation. This is the perspective from which they are presented here.
Cicero’s Topica is perhaps the first essay to compile a list of historically significant legal principles of inference that are historically significant in all the classical fields of argumentation study, see Interpretation 2; Collection 2.

These legal arguments govern the interpretation of legal texts and their application to concrete cases. They enable the application of a legal text to a case, by potentially extending its meaning and legal force. Given a fact f that is subject to legal evaluation based on a code (legal, religious, etc.), the judge can usually associate f with a category M mentioned in the code in order to apply the legal provisions concerning M to f. In other cases, category M must be interpreted as applying to case H. In such cases, the judge creates the law rather than applying it.
However, the code may not contain a category, N, to the case at hand, h. In this case, category N must be interpreted so that it also applies to h. In such cases, the judge produces the law rather than simply applying it.

The process of interpretation is not limited to the legal field. It applies to a problematic proposition P belonging to a body of statements, a code, a rule, or a sacred text that is accepted by a community of interpreters or believers. The derivation of an interpretation IP  from a passage P, {P, IP} obeys the same rules and principles as the argumentative derivation of a conclusion C from an argument A, {A, CA}. An interpretation is constructed a contrario, by analogy, and so on.

The limit of interpretation is set by the principle that “what is clear must not be interpreted.” This principle establishes the existence of a literal meaning, based on grammatical data. For instance, if a Syldavian presidential election requires voters to be 18 years old, and a Syldavian national, then only those who meet both criteria will be allowed to vote. There is nothing to interpret.

1. Three Collections of Legal Argumentation Schemes

Legal argumentation specialists compile lists of argument schemes that are particularly important in law. Lists provided by Kalinowski and Tarello are often included in the general framework of argumentation studies (Perelman 1979, Feteris 1999, Vannier 2001). We have also included the list from by lawoutlines.com[1] (no author’s name). These three lists extensively use Latin terminology.

— Kalinowski (1965) lists eleven argument schemes:

      • A pari
      • A contrario sensu, or a contrario.
      • A fortiori ratione, or a fortiori.
      • A maiori ad minus, or from greatest to least.
      • A generali sensu, or argument from the generality of the law.
      • A ratione legi stricta, or argument from the strict meaning of the law
      • Pro subjecta materia, or argument from consistency.
      • Argument from preparatory works.
      • A simili, or argument by analogy.
      • Ab auctoritate, or argument from authority.
      • A rubrica, or argument from the title.

— Tarello (1974 ; quoted in Perelman 1979, p. 55) lists thirteen argument schemes:

      • A contrario
      • A simili, or argument by analogy
      • A fortiori
      • A completudine
      • A coherentia,  argument from coherence.
      • Psychological a.
      • Historical a.
      • Apagogical a.
      • Teleological a.
      • Economic a.
      • Ab exemplo a.
      • Systemic a.
      • Naturalistic a.

— Lawoutlines considers ten argument schemes:

      • By analogy or argument a pari.
      • Of greater justification or argument a fortiori.
      • By contrast or argument a contrario.
      • From absurdity or ad absurdum (ab absurdo).
      • From generality, a generali sensu.
      • From superfluity, ab inutilitate.
      • From context, in pari materia.
      • From the subject matter (of the law), pro subjecta materia.
      • From the title a rubrica.
      • From genre or ejusdem generis.

2. How many argument schemes?

Thirty-four argument schemes are specified.

— Four argument schemes are included in the three lists; arguments:

    • A contrario ; a contrario sensu ; by contrast or a contrario, see opposites.
    • A fortiori ratione, a fortiori ; of greater justification or a fortiori, see a fortiori.
    • The a pari argument is considered separately, or as equivalent to the argument by analogy (“by analogy or a pari”).
    • The a simili, a simile argument is assimilated to analogical argument, see analogy; a pari.

— Five argument schemes are common to two lists; arguments:

    • A generali sensu, argument from the generality of the law.
    • Pro subjecta materia ; from the subject matter (of the law).
    • Ab inutilitate; Economical arg.; non-redundancy principle.
    • A rubrica ; from the title.
    • Apagogical ; from absurdity.

— Ten (or thirteen) are specific to one of the three lists; arguments:

Thus, we obtain twenty-two different legal topics, which can be reduced to nineteen, if we acknowledge that the argument from preparatory work, the historical argument, the psychological argument, and the teleological argument refer, under different labels, to what Perelman calls the « intention of the legislator » (1979, p. 55).

3. Groupings

These twenty-two legal argumentation schemes can be divided into the following sub-groups.

(i) General arguments, that are not specific to law, and are operative in any serious argumentative situation.

    • From consistency (a coherentia).
    • A pari, a simili, analogy.
    • From genus.
    • A contrario.
    • A fortiori
.
    • From absurdity.
    • From precedent.
    • From authority.

In law, the latter two forms of argument are based on, and reinforce, the historical continuity of legal practice.

(ii) Arguments that legitimize interpretations based on the conditions under which the law was produced. Arguments based on:

    • Preparatory work.
    • History (of the law).
    • Intent of the legislator, teleological argument.
    • Psychological argument.

(iii) Arguments that appeal to the systemic character of the code of laws to legitimize an interpretation. Arguments based on

    • Systemic considerations.
    • Coherence, a coherentia, in pari materia).
    • From superfluity, ab inutilitate.
    • Comprehensiveness, a completudine.
    • Necessity : all articles of the code are necessary and non redundant.
    • The title of the section of the code, a rubrica.

These argument schemes assume that the text to be interpreted is “perfect”,

    • It contains no contradictions
    • It contains no redundancies
    • All content is necessary (nothing is missing)
    • All elements are interconnected and have meaning only by virtue of their relation within the structure.

Ultimately, all the properties of a formal system are attributed to the code. This emphasis on the systemic nature of the legal code can result in a mechanical view of the law and its application.

Lawyers establish precise definitions of these forms of argumentation in law, illustrate them with concrete cases, determine the conditions for their application, and address the problems connected with their construction and use.

4. Prescriptive Scope of Argumentation Schemes

This set of arguments allows the law to be interpreted for application to specific cases. When used in the imperative form, it serves as a guide for drafting laws. For example, as the argument from superfluity (economic argument, or argument from uselessness) assumes that laws are not redundant; so the legislators strive to avoid any redundancy when drafting of laws. The same applies to other interpretive principles.

5. Generalization to Other Fields,

See Interpretation

[1] Legal tradition-Trahan.doc. P. 21-22.
www.lsulawlist.com/lsulawoutlines/index. php?folder=/TRADITIONS (09-20-2013)