Legal Reasoning and Argumentation

Course content

This course provides a general introduction to the theory of legal practice. Whilst law school provides a good understanding of legal doctrine, legal practitioners often lack clear guidance on the broader philosophies underlying the profession, and in particular, the theoretical underpinnings of the core apects of how to argue as a lawyer. As such, this course is an introduction to both a ‘craft’ and a ‘philosophy’ that draws from research undertaken by the course instructors and close reading of academic texts on how to be a better lawyer in making legal arguments. These texts will be used to better understand how legal arguments are made in legal practice and how some arguments come to prevail over others.

The course is structured around principal legal theoretical categories (formalism and pragmatism) and their application within discrete fields of law (contract and private transactions, constitutional politics, human rights) and also addresses fundamental emerging issues on the role of science in adjudication and pursuing social issues through cause lawyering. The course does not focus on the law of a specific jurisdiction, but rather addresses cross-cutting issues which are common amongst contemporary legal systems, and ultimately, timeless lynchpins of lawyering skills. The first half of the course provides an introduction to the basic skills of lawyering, whilst the second half delves into cross cutting special topics.

Throughout the course, students will develop a solid understanding of the main argumentative ‘tools’ of contemporary lawyering – rhetorics, interpretation, reasoning, precedent, the law/fact distinction and concept formation – which they will further learn to implement through extensive class exercises and case work on both domestic and international legal cases. The assessment for this course will consist of student’s writing an individual written assignment in the form of a shadow plea or a shadow judgment, that addresses the theories underlying lawyering in practice. Students will be instructed to write both a formal (shadow) plea/judgment and to explicate how/why the chose the wording used in that exercise.

This course thus offers a good choice for those students who want to ‘master’ the art of lawyering by completing existing studies at the BA/Bachelor level on general introductions to law and legal philosophy. Students that take this course will be thus not only well equipped for making good legal arguments as a member of the legal profession, but will also gain a solid understanding of the theoretical construction of the social world to support academic legal research.
 

Learning outcome

Knowledge:

  • Understanding of key argumentative techniques underlying legal practice
  • Knowledge of basic distinctions between formalism and pragmatism in approaches to legal theory and practice
  • Understanding key concepts of lawyering such as: rhetorics, interpretation, reasoning, authority, the/law fact distinction, and how these are operationalized in argumentative practice
  • Understanding of the social implications of law and the social role of being a lawyer


Skills:

  • The ability to construct and use argumentative techniques to produce persuasive legal arguments
  • The ability to analyze legal arguments for persuasiveness and weaknesses, and to respond to them with counter arguments
  • The ability to translate social grievance into to justiciable claims
  • The ability to write rhetorically strong pleas and judicial arguments in a formal legal language
  • The ability to convincingly build a legal justification for a decision in a concrete dispute
     

Competences:

  • Competence to apply techniques of legal interpretation to a variety of contexts
  • Competence to apply techniques of distinguishing to analysis of precedent
  • Competence to reflect on the theoretical basis of lawyering across a range of contemporary issue areas (e.g. expert witnessing, climate litigation, cryptocurrency, etc.)
  • Competence to craft a legal judgment that applies the foundational skills of being a lawyer
  • Competence to critically reflect on the role of lawyers in society Competence to assess the quality of legal academic writing

The course is an interactive class, where the lecturer sets the themes through presentation, followed by periodic but extensive discussion and group work. Students will undertake many and varied class work exercises under the principal topics. The course will include a number of case work sessions and a final debate concerning the use of law as a social instrument. Students will be expected to present oral arguments in every class (except the first introductory session.)

The course syllabus runs as follows: 
1.       What is legal argumentation and why is it important for practice?
2.       Formalist and pragmatic theories as applied in legal argument
3.       Legal interpretation: textual, historical, and evolutionary methods
4.       Legal rhetoric: ethos, pathos, and logos
5.       Legal reasoning: formal logic and inductive and deductive models
6.       Arguing from legal authorities: precedent and bindingness
7.       Arguing about facts: the fact/law distinction and discursive constructions
8.       Theory of a contract and the philosophy of private law
9.       Constitutional interpretation and legal politics
10.     Science in adjudication: expertise and policy
11.     Critique and cause lawyering
12.     Revision and exam preparation

Reading will be a maximum of 800 pages as per 15 ECTS.
There is no set textbook for the course as it presents cutting edge research specifically chosen with respect to the learning obbjectives. However students wishing to gain a deeper understanding of the course material are encouraged to consult:
- F Schauer, Thinking Like a Lawyer: a new Introduction to Legal Reasoning (HUP, 2009)
- P Schlag and A Griffin, How to Do Things with Legal Doctrine (UCP,2020)


It is illegal to share digital textbooks with each other without permission from the copyright holder.

Written
Oral
Individual
Collective
Continuous feedback during the course of the semester
Feedback by final exam (In addition to the grade)
ECTS
15 ECTS
Type of assessment
Home assignment
Type of assessment details
Individual written assignment

The examination is an individual written assignment where students are required to write a ‘shadow judgment’ of a written decision or pleading that provides an alternative explanation/argument for the legal grounds and reasoning from a case provided by the course instructors, using theories and techniques derived from the teaching program.
Aid

Read about the descriptions of the individual exam forms, including formal requirements, scope and deadlines in the exam catalogue

Read about practical exam conditions at KUnet
 

Marking scale
7-point grading scale
Censorship form
No external censorship
Exam period

Hand in date: TBA

Re-exam

Hand in date: TBA

Single subject courses (day)

  • Category
  • Hours
  • Preparation
  • 356,5
  • Seminar
  • 56
  • English
  • 412,5

Kursusinformation

Language
English
Course number
JJUA55323U
ECTS
15 ECTS
Programme level
Full Degree Master
Full Degree Master choice
Duration

1 semester

Placement
Spring
Price
  1. Students enrolled at Faculty of Law or holding a pre-approval: No tuition fee
  2. Professionals: Please visit our website  
Schedulegroup
Please see schedule for teaching time
Studyboard
Law
Contracting department
  • Law
Contracting faculty
  • Faculty of Law
Course Coordinator
  • William Hamilton Byrne   (22-87797c7c79717d3e78717d797c847f7e3e7289827e75507a85823e7b853e747b)
Saved on the 01-05-2024

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