* There are legal theorists who claim that this is false. But in my experience, they offer very technical analyses of case-based thinking that differ from how lawyers actually think it works in practice. It is easier and, in my opinion, more accurate to regard precedents as some kind of analogous argument. Governmental body empowered to settle disputes. Judges sometimes use the term « court » to refer to themselves in the third person, as in « the court read the pleadings. » Every time you go beyond the strict wording of a legal text, you enter troubled waters. Some believe that lawyers and judges should focus exclusively on the strict wording of the text. They should not add words that are not present or distort the literal meaning with their own preferences or ideas. Moreover, the idea that some legal texts have intentions or objectives is problematic because they are often written by groups of people who may not have a common intention or who were intended to provide timeless abstract principles for a society (this is a common argument on constitutional texts – if you`re interested, I have written a few articles on some of the philosophical problems related to constitutional interpretation). A panel of 16 to 23 citizens who listen to the evidence of criminal charges presented by the prosecutor`s office and determine whether there is a probable reason to believe that a person has committed a crime. See also Indictment and United States Prosecutor. Easy, right? Unfortunately, this is not the case. While this basic argument is at the heart of all disputes, it is not the totality of these disputes.
The problem is that the legal rules do not appear and do not apply to certain cases. There are many possible legal rules that could apply to a particular issue. And there are many limitations and exceptions to the legal rules. You need to argue in favor of the rules themselves and show why a particular rule (or important premise) should apply to a particular case. Moreover, the facts of the case do not establish themselves. They, too, have to argue, and the law introduces a formalized procedure to establish facts, at least when a case is brought before the courts. I will not go into details. As Huhn points out in his discussion, all textual arguments must be supported by some kind of textual analysis, that is, a premise that supports a particular interpretation of the rule. This means that textual arguments tend to take the following general form: a written statement filed in a court or appellate case that explains the legal and factual arguments of a page. A request made as a result of a proceeding by a losing party on one or more issues, for a higher court to review the decision to determine whether it was correct.
To make such a request is to « appeal » or « to appeal ». The one who appeals is called a « complainant »; The other party is the « appellant ». A court order preventing one or more named parties from acting. An injunction is often issued to allow for a finding of fact so that a judge can determine whether a permanent injunction is warranted. Several authors have presented frameworks and taxonomies that attempt to bring order to the chaos of arguments in favor of legal rules. I like Wilson Huhn`s framework, The Five Types of Legal Argument, which not only reduces legal arguments to five main forms, but also shows all the different ways of arguing for or against a rule of law within these five main forms. I will try to explain Huhn`s framework in a condensed form in the rest of this article. However, I have to say that I have changed its framework a bit over the years and it is not entirely clear which parts are its own and which parts are my own modification. Most of it belongs to him. Some parts are mine (and most of the examples are the ones I use in my classes rather than those from Huhn`s book). Generally refers to two events in individual bankruptcy cases: (1) the « individual or group briefing » of a nonprofit budget and credit advisory agency, which individual debtors must participate in before filing under a chapter of the Bankruptcy Code; and (2) the « Personal Financial Management Course » in Chapters 7 and 13, which an individual debtor must complete before debt relief is registered. There are exceptions to both requirements for certain categories of debtors, urgent circumstances, or if U.S.
trustees or insolvency administrators have determined that there are not enough licensed credit counselling agencies available to provide the required advice. The fourth type of argument is the custom or tradition argument. This is unusual. Indeed, we know that companies follow rules, even when there is no formal legal system. Hunter-gatherer bands, for example, have rules expected of their members regarding sharing food and treating others. These rules are rarely laid down in a binding text. They are only used to society. It is sometimes claimed that the common law system originated in such traditions or customs. The first common law judges followed no precedent. There was no precedent to follow.
Instead, they recognized and adopted existing customary rules. A full-time lawyer hired by federal courts to legally defend defendants who cannot afford a lawyer. The judiciary administers the Federal Defence Counsel Programme in accordance with criminal law. There is only one way to defend a previous argument, and that is by following the process of analogous reasoning, that is, a careful examination of the facts of each individual case, the identification of relevant similarities and the justification for the application of the same rule. Since no two cases are perfectly identical, it will always be an imperfect exercise, and therefore similar arguments are often questionable. Huhn suggests that there are six main ways to attack such arguments: But it`s not that simple. Textual laws are rare. The terms of the text must be interpreted. Their true meaning must be determined in the context of the present case.
Sometimes the meaning may be obvious or undisputed, but often it is not. The Irish encroachment rule, for example, contains a number of vague or uncertain terms. What does it mean to use force « directly or indirectly »? Hitting someone in the face is certainly direct violence, but what happens if you throw water in their eyes? Is it an indirect force? Think about it, what is « violence » anyway? There are three ways to attack a customary argument: For example, a lawyer`s argument consists of a presentation of the facts or evidence and the conclusions drawn from them, aimed at convincing a judge or jury to render a verdict in favour of the lawyer`s client. Non-insolvency proceedings in which an applicant or creditor attempts to submit its claim to a debtor`s future wages. In other words, the creditor requests that part of the debtor`s future salary be paid to him for a debt owed to him. The lawyer will then insert this rule into an argument about your case. Depending on the facts, they may say that you are likely to be found guilty or that you acted under a lawful excuse (such as self-defense) and therefore likely to get away with it. Jury selection process to interview potential jurors to determine their qualifications and determine a basis for challenge. The legal power of a court to hear and decide a particular type of case. It is also used as a synonym for jurisdiction, i.e. the geographical area over which the court has territorial jurisdiction to rule on cases. The legal system that originated in England and is now used in the United States is based on the articulation of legal principles in a historical succession of judicial decisions.
Common law principles can be changed by statute. A claim for which no specific value has been determined. It`s simple because in every legal case, there is essentially one type of basic reasoning that is at the heart of the dispute between the parties. This argument leads from a general rule of law to a conclusion on the application of that rule to a number of facts. Philosophers and logicians would say that the basic form of the legal argument is a syllogism: a simple three-step argument that involves a main premise (a principle or general rule), a secondary premise (a statement about a particular case or scenario), and then a conclusion (an application of the general rule to the particular case). Here is an example. The English case of Re A (Conjoin Twins) is remarkable for several reasons. The facts are known. A pair of twins (named Jodie and Mary in this case) were born in August 2000. Jodie was the stronger of the two. Mary was only kept alive by a common artery she shared with Jodie.
