The Language of Argument

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C H A P T E R 1 8 ■ L e g a l R e a s o n i n g

Despite this variety, some rough generalizations can be made: A decision in

a legal case usually depends on (1) questions of fact and (2) questions of law.

Components of Legal Reasoning

Questions of Fact

A criminal law prohibits a certain kind of behavior and assigns a punishment

to those who violate it. When a person is accused of violating this law, a

trial is held to determine whether in fact he or she has done so. The judge

instructs the jury on the law bearing on the case. If the members of the jury

then decide that the accused has violated the law, they find him or her guilty,

and the judge usually hands down the punishment stated in the statute.

In a civil suit, one party sues another, say, for breach of contract. Because

states have laws governing contracts, once more a trial is held to decide whether

in fact there was a contract (instead of some other speech act, as in Hawkins v.

McGee, cited on p. 28) and whether in fact it was breached. If a breach of con-

tract is found, the judge or jury awards damages as the law specifies.

Although questions of fact arise in all cases, criminal and civil cases do

differ in the burden of proof—in who is required to establish the facts and

to what degree of certainty. In a criminal procedure, the prosecution must

establish its case beyond a reasonable doubt. In a civil case, the burden of proof

is less. Generally, the case is won by the party who shows that the preponder-

ance of evidence favors his or her side of the case. Although this is a bit too

simple, it is sometimes said that if the scales tip ever so slightly in favor of A

rather than B, then A wins the case.

The only way to carry the burden of proof is to present evidence. This evi-

dence can contain conflicts and unclarities, which make it hard to prove the

facts. Sometimes the facts are so complex that they simply cannot be proved

one way or the other, and sometimes the distinction between facts and law

is not so clear.

These problems arise often in cases that raise larger social issues. For ex-

ample, in the famous case of Brown v. Board of Education (347 U.S. 483 [1954]),

which found segregated schools unconstitutional, the Supreme Court an-

swered the question of law at issue by saying “the opportunity of an educa-

tion... is a right which must be available to all on equal terms.” The Court

next asked: “Does segregation of children in public schools solely on the basis

of race... deprive the children of the minority group of equal educational

opportunities?” This question was presented as a question of fact. The Court

answered in the affirmative and tried to justify its answer by citing various

psychological studies of the performance of minority children from segre-

gated schools. This answer would be accepted by most people today, but the

studies used as proof were controversial and inconclusive, so the Court had to

decide whether studies of this kind were reliable enough to serve as evidence

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