Spaak on Legal Argumentation and the Nature of Law

Torben Spaak, Stockholm University, Faculty of Law, has published Legal Argumentation and the Nature of Law as Stockholm University Research Paper No. 133. Here is the abstract.

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law. Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

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Barzun on Catharine MacKinnon and the Common Law @UVALaw

Charles L. Barzun, University of Virginia School of Law, has published Catharine MacKinnon and the Common Law as Virginia Public Law and Legal Theory Research Paper No. 2020-69. Here is the abstract.

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power. This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

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Legal Argumentation

Eveline T. Feteris, University of Amsterdam, and Harm Kloosterhuis, Erasmus School of Law, have published Law and Argumentation Theory: Theoretical Approaches to

Legal Justification. Here is the abstract.

In the past thirty years study law and argumentation has become an important interdisciplinary discipline. It draws its data, assumptions and methods from legal theory, legal philosophy, logic, argumentation theory, rhetoric, linguistics, literary theory, philosophy, sociology, and artificial intelligence. Scholars from various traditions have attempted to explain structural features of legal decision-making and justification from different points of view.

One of the main incentives for the growing interest in legal argumentation has to do with changing views on judicial tasks. In modern legal systems a judge not only applies legal rules but also resolves interpretation problems and justifies his doing so in a reasoned decision. Although it is a part of the Rule of Law that legal decisions must be justified, explicit legal norms for this justification can hardly be found. One of the important problems in the study of legal argumentation is the question which standards of soundness the argumentation should meet. Is it enough that the judge mentions the facts of the case and the legal rules, or does he also have to explain why the legal rules are applicable to the concrete case? How can the interpretation of a legal rule be acceptably justified? What, in the context of legal justification, is the relation between legal rules, legal principles and general moral norms and values?
A second important problem is the question how to reconstruct real life argumentation in legal decisions in order to evaluate the justification. For instance when a judge resolves an interpretation problem in deciding a case, he can choose different types of interpretative arguments to justify his decision. Ideally, these arguments are recognizable in the justification of the legal decision. But in practice these arguments are not always presented explicit, clear and well ordered. The critical reader who wants to evaluate the argumentation must therefore solve a number of reconstruction problems in order to evaluate the argumentation.
Legal argumentation-theory has a descriptive and a normative dimension. It is descriptive in the sense that it gives a reconstruction that starts from arguments expressed in legal discourse and it is normative because the reconstruction is related to a model of acceptable justification. Given these two dimensions, five research components can be distinguished. The philosophical component attends to the normative foundation of a theory of legal argumentation. A central question is which criteria of rationality should be used in evaluating legal argumentation. In the theoretical component, models for legal argumentation are developed, in which the structure of legal argument and norms and rules for argument-acceptability are formulated. The reconstruction component shows how to reconstruct real life argumentation within the framework of a theoretical model. This reconstruction forms a basis for the evaluation of arguments. The empirical component investigates the construction and evaluation of arguments in actual legal practice. It establishes in which respects legal practice fits in or conflicts with theoretical models and examines how possible discrepancies might be explained. Finally the practical component considers how various results forwarded by the philosophical, theoretical, reconstruction, and the empirical components might be used in legal practice. Practical applications are methods for improving skills in analyzing, evaluating and writing legal argumentation.
This chapter describes how researchers deal with these questions depending on their different points of view. Ideas about standards of soundness for legal argumentation and methods for reconstruction, developed by influential authors in the field, will be examined. In the sections 2, 3 and 4 we will discuss the three dominant traditions in legal argumentation-theory: the logical, the rhetorical and the dialogical approach. In section 5 we conclude with some questions for the agenda.

Download the full text of the paper from SSRN at the link. 

James Madison's Legal Writing

Thomas Berg, Julie A. Oseid, and Joseph A. Orrino, all of the University of St. Thomas, St. Paul/Minneapolis School of Law, have published  The Power of Rigor: James Madison as a Persuasive Writer as University of St. Thomas Legal Studies Research Paper No. 11-16.

This article is the third in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. The focus of all the articles is on the lessons modern legal writers can learn from the Presidents. James Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. Even though he was not a lawyer, Madison had all the best writing habits that lawyers should emulate – attention to audience, careful preparation, and attention to consequences.

Download the paper from SSRN at the link.


Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. “The great little Madison” may have lacked physical presence and personal charisma, but he overcame those limitations to become one of the most influential public figures in American history by cultivating his particular strengths. He had an analytical mind that he developed to see and clearly express arguments, counterarguments, and distinctions. He had, despite poor health, an appetite for work that he used to out-prepare others. And he had a sensitivity to surrounding circumstances that he cultivated to address his audience’s concerns and to envision the practical consequences of various actions.



The article considers why rigor is an essential writing quality, reviews Madison’s life and writing habits, and analyzes three examples of Madison’s writings (The Memorial and Remonstrance, Federalist No. 10, and a letter from Madison to Thomas Jefferson).

Setting the Scenes of the Crimes

Alan W. Norrie, University of Warwick School of Law, has published Inaugural Lecture 'The Scene and the Crime' as Warwick School of Law Research Paper No. 2011-05. Here is the abstract.

What is the scene in relation to the crime? That question can be answered in many ways. It may be the legal process, the political, cultural and literary milieu, the social conditions, the historical context. This is an area where a thousand flowers may bloom. I don’t intend to pick them here, but to focus on where I have come from, and where I am headed. What I am going to say this evening will be tentative, and in a way risky, because I focus on something that contextual lawyers have generally avoided, perhaps for good reason. What I am going to dip my toes in is, indeed, something generally not seen as contextual at all, and that is how an understanding of ethical categories of good and evil may be required for the scene and the crime.

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Thurgood Marshall as Writer

Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, all of Widener University School of Law and Ann Fruth, of Widener University School of Law, Harrisburg, have published Thurgood Marshall: The Writer at 47 Willamette Law Review 211 (2011). Here is the abstract.

This article profiles Thurgood Marshall as a writer in his roles as an advocate and social activist, a legal scholar and a Supreme Court Justice. It examines the techniques that he used as a writer to inform and persuade his audiences in his life-long endeavor to achieve equality for everyone. This examination of Marshall’s legal, scholarly, and judicial writings can help lawyers, academics, and students increase their knowledge of how the written word profoundly impacts society. The article first studies his arguments and legal strategy in two early civil rights cases, University of Maryland v. Murray and Smith v. Allwright. It goes on to examine several letters Marshall wrote while he was working on Lyons v. Oklahoma, a murder trial where the prosecution sought the death penalty. It explains how his creativity as a legal strategist was fashioned of necessity as a young African-American lawyer representing African-American clients in a still segregated society. The second profile explores how the social context and the ethical dilemma that Marshall faced in drafting his brief in Brown v. Board of Education influenced his use of persuasive writing techniques. It shows how Marshall’s choices as a writer accomplished an effective strategy that was simultaneously principled and practical. The article then considers Marshall as a moral activist by examining his speech and writing on the occasion of the Bicentennial Celebration of the Constitution in which he famously refused to applaud it. It compares the contemporaneous reaction to his stance to the consequent controversy about his position that arose during the Senate confirmation hearings of Marshall’s most famous clerk, Elena Kagan. Finally, the article looks at Justice Marshall as a writer in his dissent in Payne v. Tennessee, a capital sentencing case. It demonstrates that by choosing to attack the assumptions underlying the majority’s argument, he was able to craft a broad and powerful writing in which he not only advocated his position opposing the death penalty, but also defended a panoply of individual rights that he believed essential to attaining and maintaining his aspiration of equality for everyone.

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Using Law

Jamal Greene, Columbia University Law School, is publishing The Anticanon in the Harvard Law Review. Here is the abstract.

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This Article substantiates that claim and explores those reasons. I argue that anticanonical cases achieve their status through historical happenstance, and that their status is reaffirmed as subsequent interpretive communities avail themselves of the rhetorical resource the anticanon represents. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus. I argue that it is vital for law professors in particular to be conscious of the various ways in which the anticanon is used – for example, to dispel dissensus about or sanitize the Constitution – that we may better decide if and when that use is justified.

Download the article from SSRN at the link.