7.8 The Main Part: Building Arguments

Construction and Deconstruction of Arguments

Arguments in favor of your thesis or hypothesis need to be constructed. Obvious or previously stated or published counter-arguments need to be deconstructed or disproven.

 A. Construction of Arguments

1. Reinterpreting Primary Sources

The foremost way of constructing an argument is to use the primary sources acknowledged by everybody and to make a persuasive claim that they support the argument. If the argument is innovative – as it should be – this will typically mean a suggestion that the primary sources should be (re-) interpreted in a new and different way than they have been so far.

In this section, you need to show your thorough understanding of the primary sources, including all relevant ways of reading and understanding those primary sources.

To suggest a new interpretation of the primary sources, we start from the four classical methods of interpretation after Carl Friedrich von Savigny, namely grammatical interpretation (the literal meaning of the text), historical interpretation (determining the intent of the legislator by reference to the legislative history), systematic interpretation (considering the context of a particular rule and the position in the entire document), and teleological interpretation (the purpose of the rule, what it is supposed to achieve).

The most important method, at least if the other three methods don't provide unambiguous answers, is the teleological method of interpretation. It is also the most flexible method because the purpose does not have to be the purpose originally intended by the legislature or author(s). It can also be a purpose that has been adjusted for the evolution of society and the problem at hand. For example, the Second Amendment of the US Constitution provides "the right of the people to keep and bear Arms". The literal meaning of the text is not clear. Did the Founding Fathers want to preserve the right of the people to bear whatever arms may be available to them at any time in the future, including modern day assault rifles? Or just the arms they had at the time, essentially front-loading single-shot muskets? Based on the literal text alone, we will never know what "the correct" interpretation of the text would be. However, we can ask what the intention of the Second Amendment actually is. Although we will hardly get a consensus in this effort either, a strong argument can be made that the right of the people to keep and bear arms is and was intended for them to be able to defend themselves. On that basis, the right to keep and bear arms would include those modern weapons that are primarily suitable for self-defense but not those that are primarily suitable for the killing of large numbers of people in a war-like scenario. Unsurprisingly, an AR-15 is virtually never used by anyone trying to defend themselves against a burglar or a robber but it is regularly used in mass-shootings of innocent people. It is just not a weapon for self-defense and, therefore, not protected under the Second Amendment. (An important author in support of the prioritization of the teleological approach is Emilio Betti. Quite possibly the most important modern author on the subject more generally is Ronald Dworkin. See also H.L.A. Hart, in particular his book The Concept of Law.)

To the extent that the Savigny Methods leave ambiguity – and an argument of ambiguity can almost always be made for teleological interpretation – we can now apply additional and value-based methods of interpretation, for example

• law and morality
• critical legal studies
• feminist legal studies
• economic analysis of law.

We will discuss these methods in the Module on Understanding Modern Value-Based Methods of Textual Interpretation.

2. Critical Analysis of Existing Proposals in Secondary Sources

Whenever we suggest that the primary sources should be re-interpreted and, in particular, if we end up arguing that even a reinterpretation cannot provide a satisfactory solution, we also need to critique existing proposals in secondary literature, i.e. by other authors who have already written about the problem. This may lead to the proposal of a solution that is based largely on an innovative re-combination of existing arguments, i.e. an incremental approach to innovation that agrees with at least some of the pre-existing proposals and seeks to develop them further. Alternatively, we may end up rejecting – with reasoning – the existing proposals altogether (see Deconstruction, below) and focusing instead on more radically innovative solutions as presented below.

In this section, you need to show your awareness of all relevant pre-existing literature and your ability to distinguish your arguments from those previously made.

3. Borrowing Solutions from Elsewhere

To the extent that the primary sources do not address the problem or cannot be interpreted in a persuasive way to provide a satisfactory solution to the problem, and after we have rejected, with persuasive reasons, the solutions so far presented by other authors, we can move on to borrowing solutions from other contexts or fields of analysis and applying them by transfer or analogy to our problem. For example, an approach taken in commercial law may suggest a solution to a problem in criminal law, or a solution suggested in political science can turn out to be beneficial to a legal issue, or a solution discovered in a foreign country could work domestically. To make this persuasive, we need to show

1. why the transfer or analogy can be made, i.e. how the issues are sufficiently comparable,
2. why it should be made, i.e. why it provides a solution that would be superior to any other so far suggested, and
3. why there are no good reasons for not making the transfer or analogy.

In this section, you can show your broader education and understanding and the mastery of disciplines and fields beyond the relatively narrow subject of the inquiry.

4. Finding New Solutions

If there are no promising solutions based on existing primary sources, and we either do not have proposals that could be derived from other contexts, nor from other authors/secondary sources, or we have good reasons for rejecting those, we can find ourselves in a void.

One possible approach to finding completely new solutions is the so-called formal scientific method.

Essentially, this method involves the listing of all possible solutions to a given problem, their organization on a continuum from impossible/unaffordable/unacceptable to easy, affordable, and acceptable but largely ineffective, and the discussion of those solutions that may be new and potentially promising.

For example, if we are confronted with the problem of unacceptably long delays in the Italian courts, where cases can linger for many years, formal scientific method would begin with a list of potential solutions that may include the creation of many more judges positions and other fairly obvious solutions like the simplification of procedural rules, and/or the restrictions on rights of appeal. However, formal scientific method would also look beyond the obvious at the simplification of the civil and criminal codes to reduce the number of disputes that would come to the courts in the first place, the incentivization of the current judges via a variety of carrots and sticks, the privatization of some or all of the courts, etc.

In this section, you can show your creativity and your understanding of the formal scientific method as an organized way of developing creative solutions.

Once you have made a list of possible solutions, working from the fringes (the impossible, unaffordable, unacceptable) towards the center (the more obvious but possibly less effective), you need to critique the possible solutions while applying the Four Levels of Analysis (don't even mention the really crazy ideas, such as no legal remedies for claims under 1000$) and focusing on the most promising but potentially also most controversial or expensive, to persuade the readers why this is exactly what should be done.

 B. Deconstruction of Arguments

Besides building your own arguments, you may also have to deal with arguments that are already out there or that will clearly be made and that contradict your arguments. We call those "hostile" arguments.

There are four main techniques of deconstruction or dealing with hostile arguments, i.e. ideas and arguments that are incompatible with or contradictory to your own suggestions and conclusions:

1. Distinguish the facts: “While the hostile argument is correct, it does not apply here because the facts are different…”
2. Argue or show that the law has changed: “While the hostile argument was correct at the time, it is no longer relevant because the law has changed…”
3. Argue that times have changed: “While the hostile argument was correct at the time, it should no longer apply because times have changed, society has changed, it no longer provides a suitable or the most suitable solution…”
4. Argue that the original argument was always erroneous: “The hostile argument was false from the outset, because…”