Legal Argumentation: Subsumption, Fitness, and Weight
Subsumption, Fitness, and Weight will be the way of framing the event or situation where the rule or to apply the rule to the factual circumstances before us. We are talking about a formal conception of legal arguments; there is more; there is still a legal argument, but it is necessary that the legal arguments are properly structured (formal). The form of this argument depends on the area; the argument will vary. We focus on the legal argument, although improving the formal argument of laws is increasingly important.
Each of these rates is applied depending on the rule to apply:
A) Subsumption: The action rules are rules that contain a condition of application; if certain conditions are met, then a specific legal consequence must follow. The case is subsumed in the rule of action (which is more general and abstract). For instance, in criminal law, if someone kills another with certain characteristics, certain legal consequences should apply. Applying a rule of action is formally very simple, responding to a scheme or modus ponens—a subsumptive form of deductive reasoning. It gives a conditional statement (if man is mortal), a normative premise, generic, which establishes a situation in the abstract; the second premise is factual and particular, specific facts relating to (Socrates is a man); and third, a logical deduction derived from the two previous logically follows (Socrates is mortal). The reasoning is that the judge formally has no discretion; only if the case meets the requirements of the law may it be subsumed in it.
B) Rules of order, using alignment. Under these rules, an achievable goal must be satisfied, without specifying the means. The Civil Code says that if children are deprived, their best interests will be sought. The rule leaves open the options, which depend on the particular case. The type of reasoning in applying these rules is to adapt; find the target to be achieved and then apply actions to seek that goal; apply appropriate consequences to an end. If there are certain circumstances, premises regulations, then it is obligatory to pursue a goal (in case of distress, adopt the standard most favorable to the minor). Second, there is also a factual premise which says that given the circumstances (minor in distress).
Thirdly, a premise that is more of a forecast; if a specific measure or action meets the purpose, then F (planned for this purpose in the standard as required), so you know not whether, but we believe that the goal will be achieved. Fourth premise, that measure, which we call M1, is preferable to other measures; we seek the most appropriate measure to the case; it is also required to justify how and why such action was taken. Finally, the M1 measure is mandatory and must specify why it is mandatory in this case and why it is the best option.
C) Principles applied early. Principles, especially those recognizing constitutional values, are more indeterminate than rules of order (no need for a specific course for which they apply, as they always apply). These are standards that have indeterminate application status; we know what is involved but not when it should or should not apply (principle of equality, for example). Guidelines are other principles, such as social rights (for example, the guiding principles of economic and social policy); they are indeterminate regarding legal consequences; they tell us when to apply but not how, not stating what the consequence is. As Alexy says, they are commands for optimization, something done as much as possible.
How can they be applied when beginning or when two principles conflict? Only one is not worth applying; they must be harmonized. Dworkin discusses guidelines; their application status is undetermined.
It is unclear what the standard requires. Optimization guidelines will mandate, force the accomplishment of a goal as much as possible. An example would be the Freedman case where a policeman did not want his photo taken; the right to information had to be weighed against the right to self-image, to harmonize those two rights.
These guidelines make the actions with which one can meet a goal far more undetermined. In one case, two or more constitutional principles may apply. Moreover, not only the Constitutional Court, but an ordinary judge can also find themselves in a case where they must weigh the application of two or more constitutional principles applicable to a particular case. It notes a conflict between applicable constitutional principles.
This controversy between two principles is solved with rules of precedence.