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LEGAL TECHNIQUES AND LOGIC  final exam part 4

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I. DEDUCTIVE and inductive  Deductive  -  Each conclusion flows from its premises with logical necessity; this means that, given the premises, the conclusion could not be  false.  The most famous type of deductive reasoning is the  syllogism – (conclusion guaranteed)	 ex .  “All misdemeanors are criminal  offenses;   Driving  under the influence of alcohol is a  misdemeanor;   Hence , driving under the influence of alcohol is a criminal offense .” “ If quartz scratches glasses, then quarts is harder than  glass;   Quartz  scratches  glass;   Therefore , quartz is harder than  glass” Inductive  -  simply claim that their conclusions are likely or probable given the premises offered . (conclusion merely likely) Ex. “Neil, a student in a Legal Logic class, has good study habits and is always attentive in class; He is a consistent dean’s  lister  and has never failed any subject he has taken in law school; and Therefore, it is very probable that Neil will not fail in his Legal Logic class.” Although it is a strong argument, it does not provide an absolute guarantee that Neil will not fail in his Legal Logic  class. Conclusion:  A deductive argument moves from particular premises to a general          conclusion while  an inductive argument moves from general to particular.

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II. CATEGORICAL and HYPOTHETICAL Categorical  -  composed of categorical statements alone. It directly asserts something or states a fact without any conditions. Its subject is simply affirmed by the  predicate. Ex.  “Senators are elected officials .”, “The  Philippines is not a communist state .”  “ Some crimes are against national security .” Hypothetical  -  includes both categorical and hypothetical statements. A compound statement which contains a proposed or tentative explanation. Usually contains a hypothetical statement in the first  premise. Ex.  “If the country is in danger due to invasion or rebellion, the Pres can declare Martial Law .” “ The breach of contract is either actual or anticipatory.”

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A  syllogism consists of a major premise, a minor premise, and a  conclusion.  A  major premise usually states a general rule. In legal arguments, this is generally a statement of law.  A  minor premise makes a factual assertion about a particular person or thing or a group of persons or things. In legal arguments, this is usually a statement of fact.  A  conclusion connects the particular statement in the minor premise with the general one in the major premise, and tells us how the general rule applies to the facts at hand. In legal arguments, this process is called applying the law to the facts.  In order for a syllogism to be valid, it must be logically impossible for its premises to be true and its conclusion to be false. In other words, a syllogism is valid if, given the truth of its premises, the conclusion “follows” logically such that it, too, must be true. Note that an argument is not valid simply because its premises and conclusion are all true.  NOTE:  In legal writing, it is not enough for an argument to “make sense” or “get the point across.” A legal argument must exhibit what your  Course pack  refers to as “pristine logic .”  In order to exhibit “pristine logic,” a legal argument should adhere to the form of the logic syllogism

I consider the invention of the syllogism one of the most beautiful, and also one of the most important, made by the human mind. - Gottfried  Liebniz

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1 ) The middle term must be distributed in at least one premise. 2) If a term is distributed in the conclusion, then it must be distributed in a premise. 3) A categorical syllogism cannot have two negative premises. 4) A negative premise must have a negative conclusion. 5)  A negative conclusion must have a negative  premise. 6 ) Two universal premises cannot have a particular conclusion.

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2. Two main types of fallacies and varieties

Fallacies  of  relevance occur when the premises “miss the point” and fail to provide logical support for the  conclusion Fallacies of  ambiguity occur when the meaning of a key word or phrase shifts and changes, so that the terms do not really “match up” within the  argument misuse of vague or ambiguous language deliberately to mislead

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Argumentum ad Hominem  – personal attack; ignores the issue by focusing on the   certain personal characteristics of an opponent Abusive – attacks the argument based on the arguer’s reputation, personality or some shortcoming Circumstantial – defending one’s position by accusing the critic of doing the same  thing Argumentum ad  Misericordiam  – appeal to pity; persuasion for acceptance of an argument not based on strength but emotional   appeal to pity Argumentum ad  Baculum  – appeal to force; persuasion through threat or pressure   instead of presenting evidence Petitio   Principii  – begging the question; persuasion through unclear justification of the premises in effect listeners are “begged” to accept Arguing in Circle – assumes as a premise the very thing that should be proven in   the conclusion Question-Begging  Language – discussing an issue by means of language  that assumes  a position of the very question at issue,  in   such  a way as to direct the listener to that  same   conclusion Complex  Question – asking a question in which some presuppositions are  buried   in  that question; aka loaded  question Leading  Question – directing the respondent to give a particular answer to  a     question at issue by the manner in which the question  Is asked

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A fallacy is an error in reasoning. A fallacious argument is one that may appear correct, but on examination proves not to be so. Even if the premises and conclusion are all correct, an argument may still be fallacious if the reasoning used to reach that conclusion is not logically valid . NOTE:   Fallacies are extremely common. At first blush, they often seem persuasive. Because legal arguments can be quite complex, fallacies can be especially hard to detect in legal memoranda, briefs, and judicial opinions. Knowing how to spot and avoid them can improve your legal writing and advocacy immeasurably. By familiarizing yourself with the fallacies listed on this handout and searching for them in your own writing and the writing of others, you can develop and nurture the habits of “pristine logic” that all successful attorneys employ.

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Apprehension   is  the mental operation by which an idea is formed in the mind. If you were to think of a sunset or a baseball, the action of forming that picture in your mind is apprehension. The verbal expression of apprehension is called a term . the act by which the mind grasps the concept or general meaning of an object without affirming or denying anything about it.  Judgment   is  the mental operation by which we predicate something of a subject. Were you to think, "That sunset is beautiful" or "Baseball is the all-American sport" is to make a judgment. The verbal expression of judgment is the statement (or proposition ). the  second act of the intellect wherein  we join  two understood terms obtain or acquired in simple apprehension  and deconstruct  them either by affirmation or by negation. Reasoning is the third act of  the intellect  wherein we draw conclusion from a given act of  validity   a  statement or enunciation in the metalanguage. For example, typical judgments in first-order logic would be that a string is a well-formed formula, or that a proposition is true. Inference or reasoning is  the mental operation by which we draw conclusions from other information. If you were to think, "I like to look at that sunset, because I enjoy beautiful things, and that sunset is beautiful" you would be reasoning. The verbal expression of reasoning is the logical  argument. divided  into two cases: recognition of unity or disunity and recognition of what something is. The rules of reasoning are those rules that all reasoning must follow. The first and most important of these rules is the principle of non-contradiction .

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Legal Reasoning is expressed through Arguments – it is a claim put forward and defended with reasons. Lawyers become more persuasive and convincing if they develop the habit of speaking in arguments and not just making assertions or claims that something is true, but support their assertions by providing  justification. What  we use when we apply laws, rules and regulations to particular facts and cases; what we use when we interpret statures, when we evaluate evidence and render  judgements.   Logical  reasoning informs judicial reasoning and decision-making . Main  Processes of Legal Reasoning: Presentation of facts which pertains to the question of  truth   Inference  (deriving a legal claim/judgment from given laws and facts) which pertains to the question of  logic

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The  rule of law rests on the quality of legal reasoning. The rule of law requires that similar cases  should be  decided similarly, that each case should be decided on its merits, and that decision-making processes should comply with applicable rules of procedure and evidence. Making the reasoning behind such decision-making transparent and open to scrutiny shifts the decisions away from mere subjective preference and toward objective rationale. An important means, therefore, of achieving the rule of law is articulating and evaluating the various elements of legal reasoning—the reasoning involved in interpreting constitutions, statutes, and regulations, in balancing fundamental principles and policies, in adopting and modifying legal rules, in applying those rules to cases, in evaluating evidence, and in making ultimate  decisions. Legal  Reasoning is expressed through Arguments – it is a claim put forward and defended with reasons. Lawyers become more persuasive and convincing if they develop the habit of speaking in arguments and not just making assertions or claims that something is true, but support their assertions by providing justification.

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Issue   – any matter of controversy or uncertainty; a point in dispute, in doubt,  in   question , or simply up for discussion or consideration; in law, a  legal   matter Rule   – legal rules that govern the issues; it has the  following: a  set of elements, collectively called a  test a  result  that occurs when all the elements are present  (and the test is thus  satisfied) a  causal term  that determines whether the result is Mandatory prohibitory Discretionary declaratory   Fact –  relevant or “material” citations fitting the  rule Analysis  –  application of the facts to the rule; brunt of the argumentation  and   illustration  linking the rules and  facts Conclusion  –  implication of applying the rule to the given facts; the summation  offacts , rules and analysis

LEGAL TECHNIQUES AND LOGIC final exam part 4

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