A full-time lawyer employed by the federal courts to legally defend defendants who cannot afford a lawyer. The judiciary administers the Federal Defence Lawyers Programme in accordance with the Criminal Justice Act. For example, a lawyer`s argument consists of a presentation of the facts or evidence and the conclusions drawn from them, which are intended to convince a judge or jury to render a judgment in favour of the lawyer`s client. It`s a little more complex than that, of course. The system of jurisprudence recognizes a hierarchy between the courts. The judgments of the higher courts of the same jurisdiction must be followed, but not those of the lower courts. But while there is no strict rule that says previous decisions must be followed, it is common for judges to use previous cases when deciding on pending cases. This also applies if there is a relevant legal text (such as a law or constitution) that clearly sets out the rule applicable to the present case. As we have just noted, these texts must be interpreted and are often ambiguous, vague or otherwise uncertain. Therefore, judges look for clues in previous cases where the same rule has been interpreted and applied. Therefore, precedents are a central element of the law. The key to a good argument, based on an inch, is twofold: (i) to show that the written law does not cover the facts that occur in the case or is necessarily incomplete without habit; and (ii) provide evidence to show that people are truly attached to this custom.
There are several ways to do this (ii). Chicken mentions the following: Simple, right? Unfortunately, this is not the case. While this basic argument is at the heart of all disputes, it is not all of these disputes. The problem is that legal rules don`t just appear and apply to specific cases. There are many potential legal rules that could apply to a particular set of facts. And there are many limitations and exceptions to 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 present case are not merely established. They, too, must be argued, and the law adopts a formal procedure for establishing the facts, at least when a case is brought before the courts.
I would just like to make one final comment about the precedent-setting arguments. Because of the way they work – by drawing analogies between the fact models of two or more cases – this type of reasoning requires an established view of the facts of the case. You must agree that the present case has certain characteristics and that the previous case has those characteristics in common. If the facts are contentious or different from what the judge or lawyer claims, this may block the application of the previous judgment. This type of reasoning therefore mixes a defense of the main premise of legal reasoning with an implicit defense of the secondary premise. Policy-based arguments have two important steps. The first is an examination of the consequences or likely outcomes of applying a particular rule to the facts of the case (so that, in turn, there tends to be an initial agreement on the facts, although it is not as important for this type of reasoning as for a previous argument). The second is the use of an evaluative or normative theory to evaluate these consequences or outcomes. This theory of evaluation can be drawn from several sources: economic theory, moral theory and religious tradition are among the most commonly used theories. Written statements submitted to the court describing a party`s legal or factual allegations about the case.
There are many ways to defeat deliberate arguments. Chicken identifies four main forms of attack and they can work regardless of the form of evidence introduced to support the argument: Intent-based arguments have the following general form: All of the debtor`s interests in the property at the time of bankruptcy. The estate technically becomes the temporary rightful owner of all the debtor`s assets. Prison sentences for two or more offences served simultaneously and not consecutively. Example: Two five-year prison sentences and a three-year prison sentence result in a maximum of five years behind bars if served at the same time. In my experience, it is rare for courts to use political arguments to simply create completely new legal rules. Maybe that happened before at the time. What is more likely these days is that there is a dispute over which rule (or the interpretation of a rule) should apply to a case. To resolve this dispute, the courts will consider the likely outcome of the application of the rule to the case.
If they think the result is consistent with their preferred evaluation theory, they will apply it. Otherwise, they look for an alternative rule (or an interpretation of the rule). Here`s an example. In the English case AG Reference (No. 6 of 1980), two young people quarrelled in the street. They agreed to settle their dispute by fighting against each other. One of them suffered from bruises on his face and a bloody nose. They were charged with assault that caused harm. The question in court was whether consent could be a defense against this charge, since both people had agreed to the fight.
The court ruled that consent cannot be a defence to a charge of assault that causes harm. There were some legitimate exceptions to such an accusation, such as legitimately organized sporting events or certain ceremonial/aesthetic rituals (tattooing, ear piercing) that might otherwise involve activities that we might qualify as an attack, but this case did not fall within those exceptions. It was just an ad hoc street fight. The last type of argument (according to Huhn`s framework) is the policy-based argument. This is perhaps the most controversial type of reasoning. It is a question of advocating for the application of certain rules because they are good policies or, on the contrary, of opposing the application of certain rules on the grounds that they are bad policies. This type of reasoning is controversial because some people think that lawyers and judges should not be involved in policy-making, but the practical reality is that policy-based arguments are widely used in law and are often critical in the most controversial cases. „Oral reasoning Merriam-Webster.com Legal Dictionary, Merriam-Webster, www.merriam-webster.com/legal/oral%20argument. Retrieved 14 January 2022. 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 for which the court has jurisdiction to rule on cases. Every time you go beyond the strict wording of a legal text, you enter troubled waters. He was of the view that lawyers and judges should deal exclusively with the strict textual formulation of the text.