Â Â Â Â I have been practicing and teaching law for over thirty years, but even as I studied law so long ago I remember being perplexed by a commonplace phenomenon. Lawyers and judges disagree about what the law is. In practice and in teaching, as I carefully read and reread the conflicting decisions in the various fields of law I had responsibility for, and as I examined the majority and dissenting opinions within each case, I was puzzled.Â Â "How could it be," I wondered. "How is it possible that people can legitimately disagree as to what the law is?"Â Â I can understand how people can argue about what the facts of a case are. People lie or are mistaken. But law is different, I thought. I thought that the law is something absolute and pure, and that people who are well-informed , intellectually honest, and fiercely dedicated to the rule of law should all come to the same conclusion as to what the law is?
Â Â Â Â Why, for example, do people of good faith – loyal Americans, who are devoted to the Constitution and to the rule of law – differ so greatly on questions of constitutional interpretation? How is it possible that citizens and lawyers and judges disagree about the constitutionality of abortion laws or gay rights or flag burning or the power of the President to combat terrorism through detention and wiretapping? Why do people even disagree about a basic question such as precisely what our fundamental rights are? After all, you would think that if our Constitution is a law, surely someone is right and someone is wrong about the meaning of the Constitution – one side is being faithful to the Constitution and the other is being unfaithful.
Â Â Â Â Â However, the idea of "the law" as a single, unitary concept is in part an illusion. The reason that intelligent people of good faith may legitimately disagree about the meaning of the Constitution (or the meaning of any law) is that law arises from multiple sources, and different people consider different sources of the law to be more or less authoritative. Law is not a single, pure, unadulterated system of rules. It is analogous to a river that has many tributaries – it is derived from many sources – and to understand the multiple potential meanings of the law it is necessary to trace each and every legal argument back to its source.
Â Â Â Â Here is what legal scholars have discovered. Hard cases exist because there areÂ different types of legal arguments. Legal arguments may be based upon text, intent, precedent, tradition, or policy. When every form of legal argument gives you the same answer as to what the law is, it is an easy case. When different legal arguments give you different answers as to what the law is, by definition that is a hard case, because it is not altogether clear what the law is.
Â Â Â Â In the subsequent essays in this series I will explain what the different types of legal arguments are, what their characteristic strong points and weak points are, and give examples of the different types of arguments that different Supreme Court justices tend to rely on. But the most important goal that I wish to accomplish with this series of essays is to encourage you to ask yourself this question: "Which type of legal argument do I find to be most persuasive? And why do I find one source of law to be more authoritative than the others?"
Wilson Huhn is a Professor of Law at the University of Akron School of Law, and is the author of the legal text The Five Types of Legal Argument (Carolina Academic Press 2008). This is the first in a series of essays explaining how people can legitimately disagree about the meaning of the Constitution.