USING LEGAL ARGUMENTATION IN LEGAL REASONING:

In a legal context, the argumentation put forward as a justification of a legal decision may consist of different levels, depending on the forms of critique the judge must react to. On the first level, the justification implies that the decision is defended by showing that the facts can be considered as a concrete implementation of the conditions which are required for applying the legal rule.

In clear cases, such a single argumentation may suffice as a justification of the decision. Often, the argumentation is more complex because one of the elements of the main argumentation of the first level must be supported by further argumentation. The supporting may consist of proof for the facts or a justification of the applicability of the legal rule.

Legal argumentation can’t be based on a static or unchangeable foundation of rules and laws. Therefore, it would appear that the kind of reasoning involved in the legal process is one in which the classification changes as the classification is made. The rules change as the rules are applied. In a sense all reasoning is of this type, but there is an additional requirement which compels the legal process to be this way. Not only do new situations arise, but in addition, peoples’ wants change. The categories used in the legal process must be left ambiguous in order to permit the infusion of new ideas. And this is true even where legislation or a constitution is involved. In this manner the laws come to express the ideas of the community and even when written in general terms, in statute or constitution, are moulded for the specific case.

POSSIBILITY FOR CONTROVERSY:

Attention must be paid to the process. A controversy as to whether the law is certain, unchanging, and expressed in rules, or uncertain, changing, and only a technique for deciding specific cases misses the point. It is both. Nor is it helpful to dispose of the process as a wonderful mystery possibly reflecting a higher law, by which the law can remain the same and yet change. The law forum is the most explicit demonstration of the mechanism required for a moving classification system. The folklore of law may choose to ignore the imperfections in legal reasoning, but the law forum itself has taken care of them.

What does the law forum require? It requires the presentation of competing examples. The forum protects the parties and the community by making sure that the competing analogies are before the court. The rule which will be created arises out of a process in which if different things are to be treated as similar, at least the differences have been urged. In this sense the parties as well as the court participate in the law making. In this sense, also, lawyers represent more than the litigants. Reasoning by example in the law is the key to many things. It indicates in part the hold which the law process has over the litigants. They have participated in the process of law making. They are bound by something they helped to make. Moreover, the hearing in a sense compels at least vicarious participation by all the citizens, for the rule which is made, and is applicable to them.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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