Legal practice

Legal practice is, to a great extent, ethically ambivalent.

 In the U.S., we like to think that our system of legal advocacy is a crucible that forges accurate application of law. In a broader social setting, you might acknowledge that competent and honest argument over the application of rules, principles, and policy will allow fair decisions to prevail.

Understanding the tools of argument will allow you to be more persuasive, to counter the arguments of opponents, and to make decisions when you are the target of persuasive arguments. The best tools of argument are also tools of thinking and will enable us to persuade the most important decision-makers—ourselves—as to what is right.

The Importance of Preparation

Good preparation consists of considering your facts and the applicable rules, and of thinking about the ways in which each argument described in this book may be applied, either to support your side, or to support that of your opponent.

The Power of Texts and the Incompleteness of Texts

Law is primarily composed of written rules. While there are important unwritten rules, and lawyers play a critical role in arguing about what those rules are, most of the work of lawyers is concerned with written rules. Written rules, produced by a government as laws, or produced by private parties as contracts or other rules, are best understood as a specification about how people will behave in the future, or at least about the consequences of certain behavior in the future.

The important point here is the temporal one. Laws (and contracts) are prepared in advance to control later behavior. Legislation is the mechanism by which societies agree in advance about what to do to prevent or affect specified behavior. This is a valuable mechanism, allowing societies to overcome cooperation problems so that they can create public goods or prevent individuals from doing harm to one another. Law is essential to our character as a social animal and to humanity’s ability to improve its welfare.

All laws, and all contracts, are inevitably incomplete.Other times there is no legal or contractual rule to apply—a gap in our structure of rules. In these cases, the law or contract cannot affect behavior or impose penalties, and any loss remains where it falls.