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The Range of Legal Arguments

A Tract Book Essay

By

Anthony J. Fejfar

© Copyright 2006 by Anthony J. Fejfar

In Law not every legal argument works. Some arguments are

ruled out as illogical or irrational. For example, if I were to argue to a

court that my client should win the case because “Sagittarius is in the

Ascendancy,” as a matter of astrology, my argument would not be taken

seriously, and would be considered frivolous.

So, some arguments work and some don’t. I suspect there is a range

of arguments which work and that some typically work better than others.

The strongest argument that I can make is where the law is directly on point

in favor of my position based upon a case, statute, constitutional provision,

etc. I simply argue to the court that “the law perfectly clear that….”

The next most acceptable form of argument is legal interpretation.

Here, for example, I may have to argue my case by analogy. So, for

example, I might say, “your honor, the court in the Flint case applied a legal

rule which is analogous to that which is applicable in this case….”

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Next, if the law does not favor me, I should probably argue public

policy. “Your honor, public policy clearly requires that you rule in favor of

my client, otherwise economic instability will result.”

Next, if the law does not favor me, I should probably argue Equity.

Equity only applies when there is no adequate remedy at law. “Your honor,

a grave injustice is about to perpetrated here, the court must intervene in

Equity. There is no adequate remedy at law to prevent this injustice, so the

court must rule in Equity.”

Finally, if law and Equity does not work there is natural law. “Your

honor, as a matter of natural law a grave injustice is being done to my client.

The court must do the right thing and rule on the basis of natural law to

prevent a grave injustice.

The foregoing gives a good framework for understanding what type

of legal arguments courts find persuasive. It is suggested that Equity and

natural law arguments be saved unless there is no alternative.