Ltl-Final Presentation (Compiled)
Ltl-Final Presentation (Compiled)
Ltl-Final Presentation (Compiled)
System
Abdulrahman Mangandog, Graziella Andaya, Georgia Angela Dacuan,
Denise Michaela Yap, Jose Victor Santos, Santiago Baluyot, Don Christian
Santiago, Renzo Francesco, Cuisia Carlos Castañeda,
Kaisser John Acuaña.
Definition
• Common law-is that body of law derived from judicial decisions of
courts and similar tribunals.
• Civil law-is a legal system, in which that its core principles are codified
into a referable system which serves as the primary source of law.
• Mixed-Implements a little bit of both
In the Beginning: “All Roads Lead to Rome”
• Lingua Franca- Language, as a culture, as a means of communication.
• The concept of law, in general is a microcosm of a culture.
• The template of which was Latin Language.
Rome
• Created the Republic.
• Adopted Greek principles of Democracy.
• Established the Civil Law system by 27 BC
• Had a caste of Jurists, Who develop new principles, rules, and
procedures to meet the challenges of their particular age
• This judiciary was nonprofessional.
Medieval Developments in Italy
• 11-15 Century, successor of the Roman system.
• System of law to fulfil both the commercial and social needs of the
populace.
• Glossators- interpreted textual material from the Corpus Juris Civilis
and disseminated those interpretations to other scholars, law
students, and lay judges
Corpus Juris
Civilis
• Originally from Rome
• Adopted by Italy
• Then adopted later by Spain
• Template for the Civil law
Canon Law
• Originated from Italy
• Made from Corpus Juris Civilis, and customary Law.
• Culminating to Concordia Discordantium Canonum.
• It is the basis for almost all canon law.
Law for Merchants
• Originated from Italy
• Made from Corpus Juris Civilis, and customary Law.
• Necessitated due to the increased trade and infrastructure.
• To maintain logistics and efficiency of the trade, the law was
propagated.
Maritime Code
• Influenced and necessitated by the Laws for Merchants.
• To be able to keep the gears of industry well oiled.
• Consolato Del Mare (Consulate of the Sea)
• Compiled in Spain
Trade Courts
• With increase trade, there was increased conflict.
• Courts had to be created to be able to resolve trade matters.
• separating commercial law and procedure from other parts of the
law.
Recap
Rome
Template
establishment of special commercial courts to deal with trade disputes and trade matters—both in the cities for
the benefit of guilds and at markets and fairs—paved the way for the modern practice in some European
countries of separating commercial law and procedure from other parts of the law. Commercial law and
procedure were assigned to a special commercial code, and special commercial courts were created to
administer the commercial law.
main tributary was Roman law, primarily contained in Justinian’s Corpus Juris Civilis, as modified and
elaborated by the glossators and commentators in the Italian universities. The other tributaries were
customary (local) law, canon law, and the law merchant. Together they came to be known as the jus
commune (or “common law”—different from the common law of England), common to a whole kingdom
and the peoples within it. The jus commune as it was established in France, Spain, and other European
monarchies was characterized by both continuity and similarity of attitudes about the law
Developments
Leading to the
Codification Process
Humanism – originated from renaissance period known as the “NATURAL LAW” school.
politics and religion the decline in the secular influence of the Roman Catholic Church and the
waning of the power and authority of the Holy Roman Empire were accompanied by the birth
of the concept of the nation-state and an emphasis on strong, central governments.
developments culminated in the creation of the modern European system of states by the
signing of the Treaty of Westphalia in 1648, which ended the Thirty Years War and, with it, the
Holy Roman Empire
inspired by the culture of antiquity—primarily Greece, and to a lesser extent Rome.
Hugo de Groot “Grotius”
father of public international law
1. De Jure Belli ac Pacis (On the Law of War and Peace)
- universal concepts of law that transcended national boundaries and were not
dependent on any one legal system.
ADVOCATED that;
a.) law being based on human experiences and desires.
b.) rational approach to the structure of law and the resolution of disputes.
c.) systematic arrangement of legal materials
Samuel Pufendorf and Christopher Wolff
-jurisprudential writers
- Who attempted to build a legal system using the scientific methods of Galileo and
Descartes
-Pufendorf, who introduced the inclusion of introductory articles stating the general
principles of law that provide the framework for the subsequent sections can be
attributed to his work and influence.
“codification in the sense of a rationally organized statement of the whole field of law (or of
all private law) was only possible after the work of the natural lawyers.”
During the 18th century, ENLIGHTENMENT had paved a way with regard to the intellectual and social
turmoil that happened during the 15th – 17th Century
- based on a belief in the fundamental importance of reason
- provided the final stimulation for the creation of the modern comprehensive codes of the
different European states
Justinian’s
starting point for the codification process
In their codification it also provided a rational statement of the legal principles and rules on
almost the entire range of subjects of private law and was a shared tradition in almost all
European legal systems
age required that citizens be knowledgeable on matters of law, so that each citizen
could know and understand his or her rights and duties under the law.
The Codification Processes in
France and Germany
The French code
• Napoleon appointed four senior practitioners of law
• four years, devoted to drafting the code
• Code Civil des Français - 1804, with 3 books and has 2,281 articles
following is the basic structure of the Code Civil:
1.Six articles at the beginning of the first book announce general principles
of law, including the publication, effects, and application of the law.
2. Subsequent titles in Book I (articles 7–515) deal with civil rights and the
status of persons, and with marriage, divorce, and paternity.
3. Book II (articles 516–710) covers real and personal property, and the
ownership and rights relating to such property.
4. Book III (articles 711–2281) contains provisions on rights of succession,
contracts, and obligations (the law of obligations covers general principles of obligations, as well as
specific contracts, quasi-contracts, delict (tort), security rights, and property rights in marriage).
The German Code
• ended up with a code that was largely the product of codification processes in three
Germanic states: Bavaria, Prussia, and Austria
• still in effect, resulted from the creation of a commission by statute in 1873 to codify
German civil law. Bürgerliches Gesetzbuch, or BGB containing 5 books
• Book I—General parts, including natural and juristic persons, the definition of things,
classification of legal acts, and prescriptive periods.
• Book II—The law of obligations, including creation and discharge of obligations,
contracts, and the law of delict.
• Book III—The law of real and personal property, including the ownership and possession
of property and servitudes on property and securities.
• Book IV—Family law, including marriage and other relationships within the family.
• Book V—The law of succession, including hereditary succession and the rights of heirs,
wills, settlements, and requirements of proof relating to inheritance.
The Codes of Chile and Brazil
condition of the sixteenth- and seventeenth-century German courts, staffed by lay judges untrained
and unsophisticated in the law
law professors, the academic jurists in Germany.
The German professors were writing the decisions according to their own developed doctrine.
Evolution in france
• The monarchy encouraged legally trained men into the judiciary.
• French legal scholars and law professors were never able to achieve
the standing and power accorded their colleagues in Germany.
• The leading jurists of the pre-Napoleanic period in France, Charles
Dumoulin (1500–1566) and Robert Pothier (1699–1772), were not
law professors. Dumoulin was an advocate and later “consultant,” and
Pothier was a judge for over fifty years of his long professional life.
Contrast of german and French jurist
• With reference to appellate cases
• Both cases involve an issue of tort liability of individuals involved in
concerted activities.
• French decision is cryptic, containing only about 500 words and citing only
two sections of the code and no doctrinal treatises. The German decision is
longer—about 2,000 words—with a
• more lengthy analysis of the issues, and cites not only relevant code
provisions, but the writings of at least three German jurists
• The two cases are also instructive about the role of precedent in these
countries. The French decision contains none, and the German decision
only three.
Part II: TheFunctions in the
System As It Exists and
Functions in the Modern Era
The Private Law – Public Law Dichotomy
• The fundamental division in modern civil-law systems is that between
private and public law.
• As exemplified in the 17th and 18th century civil codes, Private law is
that area of the law in which the sole function of the government was
recognition and enforcement of private rights.
• Thus, today private law includes at least the civil and commercial
codes.
The Private Law – Public Law Dichotomy
• Public law focuses on the effectuation of the public interest by state
action
• Today, Public law includes at least what common law attorney would
recognize as constitutional law, administrative law, and crminal law.
The Private Law – Public Law Dichotomy
• Public Law generally is not part of comprehensive civil codes.
• Public Law tends to be more fluid than the civil codes since it change
rapidly in reponse to political forces.
Court Structure
• They are the modern-day successors of the various civil courts that
existed in Europe.
French System
• The apex of the ordinary court is First Level of French Court consists
the Cour de Cassation (Supreme of:
Court of Cassation).
• General Civil
• The court reviews on a
discretionary basis, only questions • Criminal trial courts
of statutory interpretation. • Specialized Courts
• Cour de Cassation is composed of
100 judges who sit in six rotating
specialized panels.
Court Structure
German Model
• Relies on several independent court systems, each with its own
supreme court.
• There are separate systems of labor courts, tax courts, and social
security courts.
• A lawyer must submit “articles of proof” to the judge and the opposing
counsel.
• Opposing counsel’s role is to make certain that the record of summary
of the testimony is complete and correct.
• The parties must submit proposed evidence to the judge in writing or
in oral hearings.
• The judge delivers rulings concerning the relevance and admissibility of
the evidence
The Legal Process: Criminal Procedure
Three Phases in Criminal Proceeding
• Investigative Phase
• Examining Phas
• The Trial
The Legal Process
Appellate Procedure
• French System of “Cassation”, the court decides only the question of law
that has been referred to it, not the case itself.
• The Court of Cassation may either affirm the lower court decision or
remand the case for reconsiderafion to a different lower court.
Legal Process
Appellate Procedure
• The remand court is free to decide the case the same way as the
previous lower court.
• The court may then issue a dispositive ruling in some case to a third
lower court to issue the judgment.
Legal Process
Appellate Procedure
• In the German System, the high court may reverse, remand, and
modify the lower court decision and enter the judgment itself.
Legal Actors: Tradition and Transition
Legal Scholars
The Legislature
• Civil Law Judges are the operators of the system designed by legal
scientists and built by the legislators.
Legal Actors: Tradition and Transition
Legal Education and Lawyers
• Courses tend to focus on general legal principles, as opposed to
professional skills and problem solving.
• Private legal practice is divided between the advocate and the notary.
• The Advocate meets with and advices clients, and represent them in
court.
• The folklore is clearly losing its power, but until some new,
acceptable, coherent view of the legal process appears to replace it, it
will continue to occupy the field. It is still the residual model of the
legal process, and even scholars who recognize that this model is not
working spend moe effort trying to perfect its basic design than in
trying to design a better model.
PART III
The Common Law and a Comparison of the Civil Law and Common Law
Systems
Origins of the Common Law System
Institution of the Jury System
o Ancient Greece had a procedure analogous to the modern system
Medieval France and was connected to Royal Power
Frankish kings
o “The best and most trustworthy in the district”
o Sworn in
o Substitute for trial by battle or ordeal
William the Conqueror
o Conquest in 1066
o The practice of a sworn inquest, usually involving land, was adopted a feature of government
Doomsday Book
o The record of boundaries of the land in England
o 1081 and 1086
o Compilation of jury verdicts about boundaries
First guise in England
o Jury, A group of persons usually local citizenry or body of neighbors
o Summoned by a public official
o “whatever the truth may be”
Origins of the Common Law System
Henry II
o 1164
o “normal part of the machinery of justice”
o jury trials for persons dispossessed of lands
King John
o 13th Century
o Criminal cases
o 1215 at Runnymede, Magna Carta
William the Conqueror
Conquest in 1066
The practice of a sworn inquest, usually involving land, was adopted a feature of government
Roman Law
o Carried early to Britain by scholars and teachers
o Italian universities
Vicarious
o A master at Bolgna
o Justinian’s Code and Digest
Origins of the Common Law System
Jury trial as a mechanism for resolving disputes
Creation of royal courts
o to dispense justice throughout the realm
o Trained judges to preside and administer them
o Rising of commercial affairs in London
o Turning away from Roman and ecclesiastical law
The inn of Court
o A new institution created by Judges and lawyers in London
o To train lawyers in adversary practice and the art of advocacy
Other Characteristics of the new system
o The expansion of jury trials to more types of civil cases
o Reliance by judges on precedent
o Inductive reasoning on precedent to create the substance of the law
o Legal norms
o The common law system was being born
Canon Law
o Oxford, later at Cambridge
Jurists in the Common Law System
Elevated importance of judicial precedent
Three generalizations
o 1. the majority of jurists, have been judges
o 2. legal writings of jurists
o 3. treaties ad commentaries of jurists
Great works of legal literature in the United States
o Treaties of Samuel Williston
o Arthur Corbin on the law of contracts
o John Wigmore on the law of evidence
Restatement of the Law series
o Collective work of law professors, judges, and lawyers of the American Law Institute
o Influenced the development of substantive law in some areas
Uniform Code series
o Series of codes for individual states in the United States
o Stand as a model for individual state legislation
o Could also be attributed to the collective efforts of jurists
Common law is open ended and antithetical to system building of the type found in civil
law countries
Difference in the Two Systems
• Common Law system • Civil Law system
• Statutes • Comprehensive codes
• Sometimes collected in codes • Abundance of legal topics
• An ad hoc process over many years • Sometimes treating separately private law,
• Reflect the rules of law enunciated in criminal law, and commercial law
judicial decisions • The codification relating to the
• The codification relating to the development of legal principles
development of legal principles
• the role and influence of judicial precedent,
• In common law countries, precedent has been at least until more recent times, has been
elevated to a position of supreme prominence
negligible the role of judicial decisions in the
• common-law judges instinctively reach for making of law, and the manner of legal
casebooks to find the solution to an issue in a
case reasoning
• Methods of legal reasoning • civil-law judges or their scholar-advisers
• In common-law countries the process is the initially look to code provisions to resolve a
reverse—judges apply inductive reasoning, case
deriving general principles or rules of law • Methods of legal reasoning
from precedent or a series of specific
decisions and extracting an applicable rule, • In the civil-law tradition, the reasoning
which is then applied to a particular case process is deductive, proceeding from stated
general principles or rules of law contained
in the legal codes to a specific solution
Difference in the Two Systems
• Common Law system • Civil Law system
• Structures of court
• Structures of court • it follows the tradition of separate codes for
• favors integrated court systems with separate areas of law, favor specialty court
systems and specialty courts to deal with
courts of general jurisdiction available to constitutional law, criminal law, administrative
adjudicate criminal and most types of law, commercial law, and civil or private law
civil cases, including those involving • Trial Process
constitutional law, administrative law, • the single-event trial is unknown, and trials
and commercial law involve an extended process with a series of
successive hearings and consultations for the
• Role of the judge in the trial process presentation and consideration of evidence.
• as the manager of the trial (and “referee” • Role of the judge in the trial process
of the lawyers acting in an adversary role) • the judge assumes the role of principal
interrogator of witnesses, resulting in a
is secondary to that of the lawyers, who concomitant derogation of the role of lawyers
are the prime players in the process, during the trial
introducing evidence and interrogating • They view themselves less as being in the
witnesses business of creating law than as mere appliers of
the law
• They are able to search creatively for an • They merely applies the applicable code
answer to a question or issue among provisions to a case, with little opportunity for
many potentially applicable judicial judicial creativity and often with the assistance
of legal scholars and legal scholarship
precedents
Difference in the Two Systems
• Common Law system • Civil Law system
• How judges are selected and trained • How judges are selected and trained
and in their legal education and in their legal education
• They are generally selected as part of the • the judiciary is usually part of the civil
political process for a specific judicial service of the country
post that they hold for life or for a • a recent law graduate selects the
specified term, with no system of judiciary as a career and then follows a
advancement to higher courts as a prescribed career path
reward for service. • The tradition of legal training
• The tradition of legal training • the study of law at a faculty of law
• the study of law is almost always post- follows graduation from high school, with
graduate. no intermediate education in the liberal
• The law student is exposed to other arts or other fields of learning, and with
disciplines prior to matriculation in the little or no exposure to subjects taught in
law school other departments of a university
• a student at a faculty of law rarely has a
baccalaureate degree
Conclusion
• Common Law system • Civil Law system
• the common law lawyer, by and large, • law students are taught that law is a science,
simply doesn’t care whether such a and that the task of the legal scientist is to
[comprehensive, logical, legal] system analyze and elaborate principles which can
be derived from a careful study of positive
exists or not. legislation into a harmonious systematic
• He is busy deciding cases, with the aid structure.
of judicial precedent and with or • The components of this system are believed
without the aid of statutory to be purely legal, a set of ultimate truths
enactment of rules in particular cases. related by rigorous deductive logic.
• Hence, the legal scientist’s inquiry is almost
exclusively directed towards the legal norm.
It is hard for the legal scientist to escape the
feeling that consideration of non-legal facts
detracts from his search for absolute
principles and the true nature of legal
institutions.
LOGIC FOR LAW STUDENTS
REQUIREMENTS:
SIMILAR CASES SHOULD BE
D E C I D E D S I M I L A R LY
DECIDED ON ITS MERITS
C O M P LY W I T H A P P L I C A B L E R U L E S
OF PROCEDURE AND EVIDENCE
ACHIEVING OBJECTIVE RATIONALE
TRANSPARENT decision-making + OPEN to
SCRUTINY = OBJECTIVE RATIONALE
LEGAL REASONING
I T I S A R E A S O N I N G I N V O LV E D I N :
INTERPRETING CONSTITUTIONS
S TAT U T E S
R E G U L AT I O N S
B A L A N C I N G F U N D A M E N TA L P R I N C I P L E S A N D
POLICIES
ADOPTING AND MODIFYING LEGAL RULES
A P P LY I N G T H O S E R U L E S T O C A S E S
E V A L U AT I N G E V I D E N C E
M A K I N G U LT I M AT E D E C I S I O N S
We are not like mathematicians. We are
also unlike statisticians. Nor do we act
like natural and social scientists. . Nor do
we take the approach of the medical
profession.
We largely content ourselves with
IN THE
“knowing good legal LEGAL
reasoning when we see it.” PROFESSION
D E M A N D S O F T H E R U L E O F L AW +
T H E P R A G M AT I C N AT U R E O F L E G A L
REASONING = DISTINCTIVE
PAT T E R N S O F R E A S O N I N G
1. Rule-based
}
found in
reasoning
law, exhibit
distinctive
logical
2. Evidence evaluation features
found in law, exhibit THREE TYPES
distinctive logical
OF LEGAL
features
can modify REASONING
both rule-
based
3. Second-order reasoning and
process reasoning evidence
evaluation.
STRUCTURE OF THE LEGAL
COMMUNITY
A vital factor for it promotes the evolution of reasoning
patterns that are well-adapted to the task of solving legal
problems.
Empirical research is needed to discover the actual
patterns that have evolved
T H E P R A G M AT I C
N AT U R E O F
LEGAL REASONING
ISSUE
Legal profession has not found traditional formal logic very useful
CAUSE
that logic tracks the deductive reasoning of mathematics, and not the practical
reasoning we actually employ in law.
3 SENSES IN
1. Reasoning is action-oriented WHICH WE
2. It balances the “epistemic EMPLOY
objective” of law against the PRAGMATIC
applicable “non-epistemic REASONING
objectives TECHNIQUES
3. Legal decision-making occurs in
real time, uses limited resources, These three pragmatic
and is usually based on dimensions of legal
incomplete information reasoning dictate
certain features of its
logic.
Examples:
We use it to make legal arguments about
the legitimacy of governmental action or
inaction.
When judges decide cases or administrative
agencies adopt new regulations, they must
interpret constitutional, statutory, or 1. REASONING
regulatory texts, and balance legal principles
against substantive policies IS ACTION-
ORIENTED.
Legal reasoning is therefore pragmatic in
the sense that its ultimate subject matter
is governmental action, and is almost
always about justifying decisions leading
to such action.
Epistemic objective - produce determinations of fact 2. IT BALANCES
that are as accurate as possible and which are
warranted by the legally available evidence T H E “ E P I S T E MIC
Example: The epistemic side of law aims at truth, O B J E C T IV E ” O F
but a truth constrained by reasonable inferences
from the evidence.
L AW AG A I N S T
THE
Non-epistemic objectives A P P L I C AB L E
Examples: common across governmental “NON-
institutions and proceedings (for example,
procedural fairness or administrative efficiency),
E P I S T E MIC
while others are limited to particular institutions O B J E C T IV ES .
and proceedings (for example, achieving an adequate
supply of electric power, or increasing economic
efficiency within securities markets). Legal reasoning is pragmatic
because it must incorporate
Weighed against this epistemic objective such balancing and must reason
are numerous non-epistemic objectives. about appropriate balancing.
The decision-maker has to evaluate, at
3. LEGAL
each stage of the process, whether the
D E C I S I ON -
evidence is complete enough, whether M A K I NG O C C U R S
the residual uncertainty is acceptable, IN REAL TIME,
and whether action should be taken USES LIMITED
or postponed R E S O U R C ES , A N D
Example: A prosecutor could always I S U S UA L LY
BASED ON
conduct more investigation and a
I N C O M P L ET E
regulator could always obtain more I NF O R M AT IO N
scientific studies.
THEORIES ABOUT THE
LOGIC OF LEGAL
REASONING MUST BE
USEFUL IN ORDER TO
B E N O R M AT I V E
RULE-BASED
REASONING
RULE-BASED LEGAL REASONING
• A particular type of reasoning which uses "if-then-else" rule statements.
• In this type of conditional schema, a legal rule states that if proposition p (the condition) is true
then this fact warrants that proposition q (the conclusion) is also true.
• A major feature of rule-based legal reasoning is the distinction between prima facie case and
affirmative defense.
• EXAMPLE: Self-defense. In a self-defense case, there are requisites that must be met in order
for such act to be considered as self-defense.
• Another feature of rule-based legal reasoning that challenge traditional deductive logic is the
possibility of changing the rules themselves as a result of reasoning.
• EXAMPLE: Common law systems. Their courts have inherent authority to elaborate new legal
rules that apply tot he very case being decided, as well as to future cases.
EVIDENCE
EVALUATION
EVIDENCE EVALUATION
• Legal rules identify those issues of fact that are relevant to proving the ultimate issue of fact.
• In any particular case, various participants (such as private parties, prosecutors, or
administrative staffs) produce evidence for the legal record, and use that evidence to try to
prove or disprove those issues of fact.
• Role of the factfinder is evidence evaluation: deciding which evidence is relevant to which issue
of fact, evaluating the probative value of the relevant evidence, and making findings of fact based
on evidence.
• Hence, evidence evaluation studies the methods and principles for the inferential aspects of
the factfinder’s task. It explains the reasoning that a reasonable factfinder would use to
determine the probative value of evidence.
• Basic building block of evidence evaluation is the PROPOSITION.
• Propositions which constitutes the evidence.
• EXAMPLE: Statements made my testifying
witnesses or statements contained in
documents that are admitted into evidence E V I D E N T I A RY
• Although evidentiary assertions are A S S E RT I O N S
propositions, and therefore capable of being OR
either true or false, factfinders are permitted A S S E RT I O N S
to assign them degrees of plausibility
(plausibility-values) instead of truth-values.
CHALLENGES THAT EVIDENCE
EVALUATION POSES IN FORMULATING
USEFUL NORMATIVE LOGIC
• 1. EXPLAINING HOW WE REASON ABOUT “RELEVANCE” ITSELF- how we decide to link
particular evidentiary assertions to particular fact.
• II. STUDYING THE LOGICAL PROPOERTIES OF DIFFERENT PLAUSIBILITY SCALES.
• III. COMBINING PLAUSIBILITY-VALUES OF NUMEROUS EVIDENTIARY ASSERTIONS INTO
A SINGLE PALUSIBILITY-VALUE FOR A PARTICULAR CONCLUSION.
• These are complicated problems in law because factfinders must be able to integrate both
non-expert and expert evidence into a single pattern of reasoning.
• In logic, a ”schema: is a formal linguistic pattern containing variables, so that appropriate
substitutions for the variables create instances of the pattern.
• PLAUSIBILITY SCHEMA- a pattern of default reasoning that, when instantiated, warrants the
conclusion to be plausible.
• EXAMPLE: the schemas of deductive logic (such as modus ponens), which necessarily preserve
truth from premises to conclusion, also preserve plausibility from premises to conlusion.
SECOND -ORDER
PROCESS
REASONING
SECOND-ORDER PROCESS
REASONING
• Legal decision making is a process governed by the rule of law and a third area of legal reasoning
that grants conclusions on the structure of that process. Process rules allow the decision making
process to be dynamic, participatory and interactive. Different participants can play different roles,
with divisions of labor and responsibility, ideally within a single, fair and efficient process.
2 types of processing decisions and rules governing decisions
• Procedural rule - addresses issues as general as jurisdiction, or as specific as the appropriateness of
particular filing. Procedural decisions based on those rules orchestrate the dynamics and timing of
the decision making process.
• Evidentiary rule – addresses issues about the evaluation of evidence, such as the admissibility of
evidence, the legal sufficiency of evidence, and burdens of proof. Evidentiary decisions based on the
those rules manage various tasks involved in evidence evaluation, and allocate them to various
participants in the process.
FEATURES OF REASONING AND DECISION-
MAKING PROCESS
• “Second-order” reasoning - the proposition of stating substantive legal rules or about
evidentiary assertions in a particular case.
• Policy-based reasoning – the integration of the content on policies and principles, would
formulate methods for weighing many divergent lines of reasoning in warranting decisions
about particular rules.
• Analogical reasoning – the practice that addresses concerns for deciding similar cases similarly
overtime for maintaining predictability of outcome and for providing due notice potentially
affected parties. It should capture the kinds of reasons that courts routinely give for
considering two cases to be similar and for distinguishing one case from another.
CONCLUSION
• The goal of this is to be suggestive but open-ended about discovering the logic of legal
reasoning. Legal reasoning patterns evolve is intended to spur a desire for empirical research.
We in the legal profession have little incentive to engage in such research if we do not sense a
need for it and if we do not sense that reasoning we apply to legal problems that has a
distinctive and coherent structure, we are unlikely to study that structure. What we need is a
professional awakening to the possibility of discovering a useful logic of legal reasoning.
LOGIC AND LEGAL
REASONING:
A GUIDE FOR LAW STUDENTS
CONCLUSION
Note that an argument is not valid simply because its premises and conclusion are
all true.
Example:
“All cats are mammals.
Some mammals are excellent swimmers. Therefore, some cats
are excellent swimmers.”
The example above is a fallacious argument. Learning how to spot and avoid such
logical fallacies can enormously strengthen your legal writing and advocacy by helping
you adhere to the “pristine logic” of correct syllogistic reasoning.
“[A]rguments, like [people], are
often pretenders.”
– Plato
The middle term is the glue that holds the argument together. That glue must be applied in
the right places, or the argument will fall apart.
In a typical legal syllogism, the middle term will consist of either the elements of a cause of
action or the definition of some term of art.
Example: “Murder is the intentional killing of a human being. State v. Jones, 12 N.C. 345, 34 S.E.2d 56 (1929). Here,
the defendant is an escaped convict who was already serving a life sentence for the murder of a police officer and was
apprehended just two miles from where the victim’s body was found. Therefore, the defendant is guilty of murder.”
3. Irrelevant Conclusion.
This fallacy occurs when the premises “miss the point” and fail to
substantiate the conclusion, instead supporting some other, perhaps
unstated, conclusion. Often, this fallacy arises when we advocate for a
particular objective, but offer only generalized support for that objective
that could equally well support an alternative approach. An irrelevant
conclusion may also be called a non sequitur.
Example: “The defendant fled the state just hours after the crime
was committed. Therefore, he was clearly involved in one way or
another with its planning or execution.”
5. Overzealous application of a general rule.
Example: “Sixty men can do a job sixty times as quickly as one man.
One man can dig a post- hole in sixty seconds. Therefore, sixty men can
dig a post-hole in one second.”
6. Hasty Generalization
Example: “In the present case, the dog that attacked the small child
clearly had a ‘vicious propensity.’ Two years earlier, that same dog had
bitten a postal worker who came on the property to deliver the mail.”
7. Circular argument
This fallacy occurs when one assumes the truth of what one seeks to prove in the very effort
to prove it. In other words, an argument is fallacious when the conclusion lies buried in the
premises used to reach that conclusion.
This is also known as begging the question. Question-begging arguments often mask
themselves in clever rhetoric.
They can be easy to miss because they often sound good. Read these examples closely, and
see if you can identify why each is fallacious before you read the explanation immediately
following.
9. Ambiguity.
When we use a key word or phrase to have two or more
different meanings in the same argument, we commit
the fallacy of ambiguity. Because many words and
phrases are naturally ambiguous (have two or more
meanings, or even a range of meanings), this fallacy
often escapes notice.
10. Composition
We commit the fallacy of composition when we mistakenly impute the attributes of a part of a
whole to the whole itself.
Example: “A strand of rope is weak, and cannot possibly support the weight of a full-grown
person. A rope is nothing but a collection of weak strands. Therefore, a rope cannot possibly
support the weight of a full-grown person.”
12. Argument from Ignorance. An argument is fallacious when it maintains that a proposition is true because it has not been proved false
or false because it has not been proved true.
Example: On the Senate floor in 1950, Joseph McCarthy said of a State Department employee suspected to be a Communist, “there is
nothing in the files to disprove his Communist connections.”
13. Attack Against the Person. This fallacy occurs when the thrust of an argument is directed, not at a conclusion, but at the
person who asserts or defends it. This is sometimes referred to as an ad hominem argument.
Example: A lawyer tells a jury that evidence of a witness’s criminal past proves that the witness was lying.
14. Argument from Force. An argument is fallacious when it substitutes veiled threats for logical persuasion or when it asserts that something
must be the case because “that’s just the way things are.”
Example: White House Chief of Staff Howard Baker once opened a cabinet meeting over allegations of misconduct on the part of Attorney
General Ed Meese as follows: “The President continues to have confidence in the Attorney General and I have confidence in the Attorney
General and you ought to have confidence in the Attorney General, because we work for the President and because that’s the way things are.
And if anyone has a different view of that...he can tell me about it because we’re going to have to discuss your status.”14
15. Appeal to Emotion. This fallacy occurs when expressive language designed to excite an emotion like outrage or pity is used
in place of logical argumentation.
Example: “It is time to put an end to these ‘creative’ accounting practices. Millions have lost their pensions due to the excesses
of these corporate elites. Hopes have been dashed. Lives have been ruined. This cannot be allowed to continue. For all these
reasons, I urge you to find the defendant guilty as charged.”