The Language of Argument

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C o m p o n e n t s o f L e g a l R e a s o n i n g

to the words of the Constitution, the intentions and purposes of the framers

of the Constitution, the effects of adopting an interpretation, moral beliefs,

and so on. Such arguments are often inconclusive. The Supreme Court is

then the final arbiter on questions of constitutionality.

PreCedentS. The U. S. legal system is not only a constitutional system; it is also

partly a system of common law. This means that lawyers and judges often cite

precedents in arguments for present decisions. A precedent is simply a past case

or decision that is supposed to be similar to the present case.

The practice of citing precedents might seem strange at first sight. Why

should one case provide any reason for a decision in a different case? The

answer is that the cases resemble each other in important respects. Of

course, when there is an important enough difference between the cases,

they should be distinguished, and then the precedent provides no argument

in the present case. But, when there is no important enough difference, like

cases should be treated alike. If similar precedents were not followed, the

legal system would lack continuity, and this would make it unfair and inef-

fective. Of course, past decisions that were mistaken or immoral should not

be continued. That is why precedents can be overturned. Nonetheless, our

legal system assumes that, if there is no adequate reason to overturn a prec-

edent or to distinguish the precedent from the present case, then the prece-

dent provides some reason to decide the present case in the same way as the

precedent. This general doctrine of precedent is often called stare decisis—to

adhere to previous decisions.

Precedents are used for many different purposes. When a statute is vague,

precedents are often used to argue for one interpretation over another. When

no statute applies directly, precedents are often used to argue about what

the law is. Precedents can also be used in arguments for general questions of

fact, or simply as sources of persuasive rhetoric.

The form of arguments from precedents also varies. Often a judge or

lawyer merely quotes part of the opinion in the precedent and treats that

quotation as an authoritative pronouncement of the law. Arguments from

precedents are then similar to arguments from legislative statutes, and there

often arises a similar need to interpret the judicial pronouncement in the

precedent. In other precedents, the judge chooses to make the decision with-

out explicitly formulating any general rule of law. The precedent can still be

used to argue for future decisions by emphasizing analogies and discount-

ing differences between the precedent and the present case.

One example occurs in the case of Plessy v. Ferguson, 163 U.S. 537 (1896).

Louisiana passed a statute that required blacks and whites to use “separate

but equal” cars in trains. Plessy refused to comply, and he claimed that the

Louisiana law violated the Fourteenth Amendment to the Constitution,

which forbids states to deprive anyone of “the equal protection of the laws.”

In his argument for this claim, Plessy cited the precedent of Yick Wo v. Hopkins,

118 U.S. 356 (1886). That case was about an ordinance in San Francisco that

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