Module 7

Principle, policy and the other side: hard cases, balancing, the strongest counterargument and honest advocacy

In easy cases the rule and the facts decide. In many hard cases they do not, and the argument turns to something else: what the law is for, what principle best explains it, what the consequences of a ruling would be, and which of two competing interests should give way. Lawyers call these arguments of principle and of policy. They are the arguments that most clearly connect law to its justification, and they are also the ones most open to abuse, since talk of ‘justice’ and ‘public policy’ can be used to dress up a bare preference. This module teaches how to use them with discipline. It explains the distinction between principle and policy, how balancing and proportionality work, why coherence with the rest of the law is a weighty consideration, and how to test an argument by building the strongest version of the other side’s case before they do. It ends with the ethics of advocacy: the duties of candour to the court, the limits on what a lawyer may argue, and the honesty that a client is owed about uncertainty. All the cases are invented.

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.