Styles of Argument

What makes a “good” or “persuasive” or “correct” legal argument? An answer to the question is often fundamental to resolving a dispute in court or convincing a political decision-maker to make some kind of legal or policy change.

One way to answer this question is to focus on “style”.¹ This idea of style will seem pretty wishy-washy to some people at first. Aren’t legal arguments clear, logical, and rational? Knowing enough about the law and the facts, shouldn’t we always be able to determine the correct legal answer to a problem?

The reality is that legal arguments in Anglo-Canadian legal systems–the common law in particular–are very highly patterned.² This makes the structure of those arguments–though not necessarily the outcome of the arguments–fairly predictable. Patterns of legal argument recur again and again in the cases and other materials we will read this year. Becoming proficient in making and using these arguments means being able to recognize and make use of these different patterns.

For example, in a legal dispute, one party might argue:

Plaintiff has a right to do X (such as, exclude other people from their property).

The other party might respond:

True, but these facts justify a limitation on plaintiff’s right to do X in the circumstances (such as, authorization to be on land for certain purposes).

The basic structure of this argument (“I have a right to do X” / “Your right is limited in this context”) is one that you will across a whole range of different disputes and areas of law. We could list other examples of different argument types, and probably develop a sensible system to label and classifying them.

The problem is that, more often than not, there is no obvious way to resolve which side of the argument is “correct”. One claim is met with a counter-claim, which in turn is met by another claim and its predictable, patterned response. And on and on. Both sides appears to have legal merit.

In the end we need something more than just these basic patterns of call-and-response to answer the question of makes a good or persuasive legal argument. This is the role of historically-situated styles of Anglo-Canadian legal reasoning, which are constituted by the different assumptions and modes of rhetoric employed by different jurists over time.

A good way to think about all this is by way of analogy to language.³ Learning to speak a new language requires you to learn a whole new set of words that make up the language—i.e., its vocabulary. But to actually learn to use the language, you need to learn not only its vocabulary but also its grammatical structure—i.e., how the words fit together to form coherent thoughts expressed in that linguistic context.

The recurring forms of legal argument and counter-argument your will learn to recognize are the basic units of Anglo-Canadian legal vocabulary. Styles of legal argument refer to how this vocabulary is used according to the system’s deeper grammatical structure to engage in positions or perspectives that seem more or less persuasive to their audience(s).