Argument and artifice: What is special about Legal Argumentation

The thought that there is something distinctive about legal argumentation is core to the self-image of many lawyers and legal educators. And yet, pinning down precisely in what it is distinctive has proved difficult. This chapter both surveys and contributes to these debates. It examines skeptical views that reject the distinctivenesss of legal argumentation entirely; “Realist” (and realist-inspired) views that legal argument is essentially about predicting what courts will do, or manipulating legal materials in service of extra-legal ends; the view that legal argumentation is distinctive in its extensive reliance on authoritative reasons; and the view that it is a “special case” of practical argumentation. Each of these perspectives contains an important element of truth, though in each case the authors concerned reach stronger conclusions than are warranted. The chapter concludes by returning to the idea, famously expressed by Edward Coke, of the “artificial reason” of the law, arguing that this artificiality obtains across three cross-cutting dimensions. It is in the skilful exploitation of the set of argumentative resources created by this multi-dimensional artificiality that the distinctive art of the lawyer—of legal argumentation—resides.