Module 4

Building an argument: the Toulmin model, ordering, adverse authority and the rebuttal

Modules 2 and 3 gave you two sources of legal argument: the reading of a rule and the comparison with earlier cases. This module is about putting them together into an argument that a judge, a client or a colleague can follow and test. The model we use comes from the philosopher Stephen Toulmin, who observed that real arguments, including legal ones, are not simple chains of premises and conclusions. They have a claim, supported by grounds, linked to the claim by a warrant (the general rule that makes the step from grounds to claim legitimate), which in turn needs backing (where the rule comes from), and which is qualified in strength and open to rebuttal in particular circumstances. Seen this way, most poor legal arguments are poor in one predictable way: a part is missing, and most often it is the warrant. We then look at how to structure a written argument, in what order to put your points, what to do with authority that is against you and how to answer the question the court is actually asking. All the examples are invented, and a tool at the end of the module checks your own argument for its parts.

General education on legal reasoning and argument, using invented cases, by-laws and people. It states common principles and does not describe any one country’s law, rules of evidence or professional conduct rules, which differ and change. It is not legal advice, and it does not replace the instruction of a law school or a supervising lawyer.