http://www.ohioverticals.com/blogs/akron_law_cafe/2008/09/why-people-disagree-about-the-meaning-of-the-constitution-the-five-types-of-legal-argument/
Why People Disagree About the Meaning of the Constitution: The Five
Types of Legal Argument
<http://www.ohioverticals.com/blogs/akron_law_cafe/2008/09/why-people-disagree-about-the-meaning-of-the-constitution-the-five-types-of-legal-argument/>
*Posted September 9th, 2008 by Professor Will Huhn *
I have been practicing and teaching law for over thirty years, but
even as I studied law so long ago I remember being perplexed by a
commonplace phenomenon. Lawyers and judges disagree about what the law
is. In practice and in teaching, as I carefully read and reread the
conflicting decisions in the various fields of law I had responsibility
for, and as I examined the majority and dissenting opinions within each
case, I was puzzled. "How could it be," I wondered. "How is it possible
that people can legitimately disagree as to what the law is?" I can
understand how people can argue about what the facts of a case are.
People lie or are mistaken. But law is different, I thought. I thought
that the law is something absolute and pure, and that people who are
well-informed , intellectually honest, and fiercely dedicated to the
rule of law should all come to the same conclusion as to what the law is?
Why, for example, do people of good faith - loyal Americans, who
are devoted to the Constitution and to the rule of law - differ so
greatly on questions of constitutional interpretation? How is it
possible that citizens and lawyers and judges disagree about the
constitutionality of abortion laws or gay rights or flag burning or the
power of the President to combat terrorism through detention and
wiretapping? Why do people even disagree about a basic question such as
precisely what our fundamental rights are? After all, you would think
that if our Constitution is a law, surely someone is right and someone
is wrong about the meaning of the Constitution - one side is being
faithful to the Constitution and the other is being unfaithful.
However, the idea of "the law" as a single, unitary concept is in
part an illusion. The reason that intelligent people of good faith may
legitimately disagree about the meaning of the Constitution (or the
meaning of any law) is that law arises from multiple sources, and
different people consider different sources of the law to be more or
less authoritative. Law is not a single, pure, unadulterated system of
rules. It is analogous to a river that has many tributaries - it is
derived from many sources - and to understand the multiple potential
meanings of the law it is necessary to trace each and every legal
argument back to its source.
Here is what legal scholars have discovered. Hard cases exist
because there are different types of legal arguments. Legal arguments
may be based upon text, intent, precedent, tradition, or policy. When
every form of legal argument gives you the same answer as to what the
law is, it is an easy case. When different legal arguments give you
different answers as to what the law is, by definition that is a hard
case, because it is not altogether clear what the law is.
In the subsequent essays in this series I will explain what the
different types of legal arguments are, what their characteristic strong
points and weak points are, and give examples of the different types of
arguments that different Supreme Court justices tend to rely on. But the
most important goal that I wish to accomplish with this series of essays
is to encourage you to ask yourself this question: "Which type of legal
argument do I find to be most persuasive? And why do I find one source
of law to be more authoritative than the others?"
/Wilson Huhn is a Professor of Law at the University of Akron School of
Law, and is the author of the legal text The Five Types of Legal
Argument (Carolina Academic Press 2008). This is the first in a series
of essays explaining how people can legitimately disagree about the
meaning of the Constitution./
This entry was posted on Tuesday, September 9th, 2008 at 6:07 am and is
filed under Constitutional Law
<http://www.ohioverticals.com/blogs/akron_law_cafe/category/constitutionallaw/>,
Government
<http://www.ohioverticals.com/blogs/akron_law_cafe/category/government/>,
Wilson Huhn
<http://www.ohioverticals.com/blogs/akron_law_cafe/category/wilsonhuhn/>.
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