Introduction
Phrases such as legal method and legal reasoning are often used as labels for the ways in which lawyers think and argue. While there is no intrinsic harm in this sort of shorthand, there is always a risk that its shortness may be misleading.
In the present case that risk becomes reality if it is understood to be suggesting that the ways in which lawyers think and argue are not used by anyone else. The truth of the matter is that lawyers think and argue in ways that are very common in many other subjects; and in life in general. Admittedly, it may also be true that when lawyers use these common techniques of thinking and arguing they tend to do so in exceptionally precise and explicit ways. But even if this is true (and many non-lawyers would dispute the point with the utmost vigour), accepting the point is a long way from asserting that legal thinking and arguing possess any uniquely distinctive characteristics.The question which this chapter sets out to answer is therefore: which techniques of reasoning and arguing do lawyers find most relevant to the tasks they have to perform? Pausing only to notice that the next chapter takes the matter one stage further by explaining how to read the sources of law you will encounter most frequently, the answer to this question falls under two headings, namely:
the importance of using careful reasoning, while recognising that arguments may be presented in reasoned form without being truly reasoned; and
being sensitive to language generally and recognising in particular the importance of the context within which specific words are used.
We will consider each of these topics in turn, but before doing so we must emphasise something which students often overlook when coming to the law for the first time, namely that legal method is a creative process.
Of course, as far as many points of law are concerned, this creativity is all in the past, so the points of law concerned are now perfectly clear legal rules which can be applied in a very straightforward way to many situations. On the other hand, there are still many situations in which the exact scope of the law is less than perfectly clear and there is, therefore, room for argument.Additionally, there is always the possibility of novel situations arising from either social or technological developments since a statute was passed. Many non-lawyers find this proposition rather startling, because there is a widespread belief that lawyers do not need to know any more law than anybody else, but only need to know where to find the law when they need it. People who hold this belief think that the only skill lawyers need is the ability to find the right page of the right book (or digital database) and the right answer to any problem will leap off the page (or computer screen). However, a few moments’ thought will show that this idea is hopelessly unrealistic.
Unless you already know a lot of law, you will not even know roughly where to look, and still less will you know whether something which appears to provide an answer to the problem you are trying to solve provides a complete answer. For example, it is one thing to discover that there are differences between leases of land and licences to occupy land and even to understand what the differences are. But it would be possible to gain this knowledge without also discovering that different schemes of security of tenure apply to leases of business premises and residential premises – not to mention the detailed content of each of those schemes. It is surprisingly easy for lawyers whose thinking lacks a good foundation of legal doctrine to see legal matters through a glass darkly rather than with the crystal clarity that is necessary if they are to give advice which is both relevant and reliable.
The fact that the law may be open to argument in individual cases is vitally important to legal method in professional practice.
Lawyers have a professional duty to give the best possible advice and to present the best possible cases, bearing in mind their clients’ circumstances. Unfortunately, this leads many people to be unduly cynical about law, lawyers and the legal process. This cynicism flows from the seeing the lawyerly ability to construct arguments and present any case on either side as being evidence of a lack of principle (if not outright dishonesty). In fact, this ability is simply the exercise of the professional skills that lawyers are required to employ on behalf of their clients and they are doing no more than their clients would do for themselves if they possessed the necessary knowledge and skills. The point may be illustrated by the following old (and no doubt apocryphal) legal anecdote.Someone who wanted to know the result of adding 1.111 and 8.888 began by asking a mathematician, who replied: ‘The answer is obvious. It is 9.999’. The inquirer then put the same question to an engineer who said: ‘Well, strictly speaking the answer is 9.999; but engineering is a practical subject and for all practical purposes the answer is 10’. Finally, the inquirer put the same question to a lawyer, who replied with a question: ‘What do you want it to be?’. In other words, the lawyer would be equally comfortable arguing either side of the case.
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