AN INTRODUCTION TO LEGAL LOGIC: Condensed Version

- None will acknowledge that he is not logical. -The paradox of contradictory claims made in the name of logic is nowhere more evident than in the field of law. -Logic, or reason, hasbeen claimed by philosophers both as the special possession and as theprincipal foundation of law since at least the time of Aristotle. - The most important modern challenge to this view stems from the thinking of Jhering and Holmes, and is often epitomized in Holmes epigrammatic slogan, "The life of the law has not been logic; it has been experience." -Thetraining of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. -Between the traditionalists of the "natural law" school and those who, in distinction from them, are sometimes called "realists", the point of controversy has been less as to the role of logic, than as to the material with which it should work. -The traditionalists maintain thatthere are certain transcendental basic principles, which can be discoveredby immediate intuitive apprehension, and that from these we can by deductive reasoning infer the most important rules of law. -The realistsreject both the transcendental concept and the intuitive method of discovery, and insist that the basic principles of law must be directly basedupon empirical data, or experience. -Even that great school of practicing lawyers and judges who refuse to recognize any "philosophical theories" invoke the sanction of logic quite as frequently and considerably more fervidly than the philosophers. -It would hardly betoo much to say that the one single point on which all legal thinkers agree is the necessity for the use of "logic" in determining rules and deciding cases. -Logic has great utility in the law in helping to analyze and classify legal material; but the raw material must come from a study of social needs.

-The judge should be neither a logical automaton

nor a puppet of psychological impulses, but should have logically and scientifically trained feelings. -There are four kinds ofpaths or lines along which the directive force of a principle may be exerted. -First, is .the line of logical progression, which he calls the rule of analogy or the method of philosophy. -Second, is the line ofhistorical development, or the method of evolution. -Third, is the lineof the customs of the community, or the method of tradition. -Fourth,is the line of justice, morals and social welfare, the mores of the day, or the method of sociology. -Both lawyers generally and the public suffer from a basic illusion about the law. This is, that the law is or can be made certain and predictable. -Thisanalysis exposes the weakness of formal logic as employed in law. -Courtscan decide any case either way and make their reasoning appear equally flawless. In law it is the conclusion, which determines the premises, rather than the contrary. -If the formalacademic study of law is truly a purely formal discipline, then it is not law but simply a generalized branch of mathematics. -We shall makethe most progress in our thinking if we keep in mind that deductive logic is not a method of proof, but simply the most compendious and economic method of dealing with a multiplicity of facts yet developed.

-To begin with, Patterson dispelthe view that logic can guarantee either that

self-evident or a prioritruths can be discovered and used deductively to formulate legal rules, or that legal rules can be so formulated as to leave the judge no discretion in applying them. -The logic of law is the logic of probability in the Keynesian sense--that conclusions partially (or probably) follow from certain premises, rather than that they necessarily follow.

-The giving of reasons for decisions by judges is similar to, but not necessarily the same as, logic. The three types of argument which are most popular with reason-giving judges are analogy, reductio ad absurdum and a fortiori. -Reasoning by analogy consists of reasoning from particular to particular (or from case to case) without explicit generalization.
- Reductio ad absurdum rests on the logical theorem that if a proposition implies its own contradictory it must be false. However, it is a dangerous argument in the legal field, because it encourages over-generalization and failure to make important discriminations. -Argument afortiori depends upon logical relations of class-inclusion. It is a valid form of argument provided that it is based upon a classification sufficiently precise to control the meaning of its terms. -Both the traditionalmethod of legal reasoning by seeking to bring the facts of a case within the general statement of some legal principle, and the method of reasoning by analogy, in which cases are related on the basis of facts without express formulation of a principle, necessarily involve the omission from consideration of some of the facts.
-Such

an omission implies a judgment as to relevance, which, in turn, must be based upon a moral or ethical principle or preference. -The difficulty with the theories of legalphilosophy and logic to date has been their failure to present a methodology capable of application to the analysis and decision of the daily grist of problems.

-Legal reasoning is unique, with a logicof its own. Its virtue is that it is
adapted to dealing with vague categories, which enables it to command the loyalty of the community even though there is not complete agreement as to the precise meaning of any of the categories. -Regardless of the fact that courts sometimes use language indicating that they are making logical deductions, in fact there is no logical compulsion about a judicial decision, and the judges are merely applying their sense of reasonableness. -It is evident that most modern legal thinkers deny that legal reasoning does o r can be made to follow the syll6gistic pattern. -Apparently to lawyers logic has meant, in a formal sense, reasoning by means of the traditional Aristotelian syllogism, or,

in an informal sense, any use of legal rules that is somehow intuitively felt or thought to be correct. -In general, legal writers have shown little knowledge or recognition of the fact that in modern thinking logic has progressed far beyond the simple dichotomy of syllogism or intuitive judgment. -In any view, logic is inseparable from the use and manipulation of symbols. -It has longbeen recognized that the rules of deductive logic give no warrant for believing in the truth of conclusions arrived at, which depends upon the relation between the symbols and the things referred to, as well as upon the. arrangement of the symbols in accordance with the rules of logic. -At the outset it should be obvious that there is no warrant for assuming that there is any kind of thing such as "legal reasoning" or "legal logic" in the sense of some distinguishable pattern generally present in the thinking of lawyers or judges. -The method of thinking, or of inquiry, varies from one stage of a problem to another. -With particularreference to law, analysis will show that there are at least six distinct stages in reaching a conclusion on a doubtful case or legal problem, whether it is presented in a court trial, administrative proceeding, law office conference or elsewhere. (1) The judge (lawyer or administrator, as the case may be) must determine the point of conflict and the problem or issues involved. (2) Having discovered the issues or points of conflict, the judge must decide on the area of relevance. It does mean thatthe lawyers and court must know what the elements involved in the legal concept at issue are, and what the nature of the facts to prove such elements will be. (3) Having defined the issues and the areas of relevance as to each, the judge and lawyers must then select the evidence tending to establish the facts relevant to each issue, and the judge must select from among conflicting bits of evidence those to khich he will give probative value and must determine the relative probative values to be assigned to the various items of evidence.

(4) Having thus postulated the relevant facts, the judge must then select some standard of decision. (5) Having selected a standard of decision, the judge must still analyze the controlling considerations implicit in the standard selected. (6) Finally, the judge will reach the actual decision of the case by applying the principle thus arrived at to the facts thus determined. -There are at least four distinguishable viewpoints or levels of analysis which may be employed in examining the operation of the legal process at any one of its stages. (A) The most common is what we may call the ostensible. (B) The logical viewpoint or frame of reference implies quite a different approach. Whereas the ostensible level of analysis accepts the language of legal opinions at substantially its face value, the logical analysis inquires into the implications and significance of the terms and the context used. -Reasoning, of whatever order, cannot validateitself. -It was the failure to recognize this that led to the concern over the classical logical paradoxes that have puzzled and amused so many generations of college students. -The solution of the paradox is in theprinciple that a class cannot be a member of itself. -Statements aboutthings represent a class of propositions of one order (the linguistic level) ; -statements about statements represent a class of propositions of another order (the logical level). -Thus a logical proposition about statements mayrefer to other statements but not to the one containing that proposition. -It is important to remember that any attempt to analyze legal reasoning on the logical level means an inquiry into the validity of the reasoning, and therefore implies something more.than an examination of the reasoning itself on its own terms.
Solong as, the inquiry is confined to the reasoning employed in the opinions of any number of precedents and legal principles, the examination remains on the ostensible or linguistic level. However, when the inquiryextends beyond the language used to its necessary

meaning and implications or to the form of reasoning used, then it is adopting the logicalframe of reference. C) To be clearly distinguished from the ostensible and the logical viewpoints is the psychological inquiry. -Neither the ostensible nor thelogical foundations of a decision are necessarily the reason for its adoption. -To take an extreme instance (which happily may be assumed. to be rare), when a judge is bribed, his actual motives for reaching the decision announced will clearly have little to do with whatever reasons he may give publicly. -Ultimately the determination of the psychological basisfor judicial action can be established only by empirical investigation. -The psychological level of inquiryis concerned not with apparent or formal

reasons or the implications ofdecisions, but with actual influences that are operative upon specific real individuals. -(D) Related to each of the foregoing viewpoints, but constitutingan independent frame of reference for the investigation of the legalprocess is the empirical inquiry. -As has been stated, the questions arisingwithin the psychological frame of reference can be definitely answeredonly by empirical inquiry. -By distinguishing the various aspects of the legal process and theviewpoints from which they may be regarded, we can reconcile manyof the apparent conflicts in the earlier writings on this topic. -Holmesand those following his lead are quite right in asserting that the logical form does not compel any particular decision in a specific legal controversy. -Onthe other hand, the traditionalists are justified in demanding that regardless of motivation legal decisions should be capable of logical formulation, justification and analysis. -Some legal thinkers have fallen into fallacies by seeking to base
conclusions within one frame of reference upon premises drawn from another. -Logical validity requires that conclusions be based only upon

premises arising within the same frame of reference. -Nearly all legal writers to the present time, apparently misled either by the limited outlook of traditional scholastic logic or by remarks such

as the epigrammatic comment of Holmes, have mistakenly assumed a false alternative between the use of logic and experience or empirical data in the legal process.
-It is fundamental doctrine of the common law that the facts which

shfall be considered in* connection with any particular case shall be only those relating directly to that case. -The techniques for which the law has had utility and which have been developed within it are limited to those appropriate to the investigation and consideration of controversies arising within a very narrow scope. -Nevertheless the courts in this initial stage of the process universally require that a party seeking their aid should assert facts which are more or less similar either to those assumed by the court to exist in some prior case in which relief was granted or specified by statute. -It iscommon practice for lawyers to draft pleadings from the models presented by pleadings in former cases that have been before the courts. -Itis usually thought that it is of less importance to present the peculiarities
of the facts in the specific situation than it is to make the situation appear to be one that is similar to others that have previously been before the court. -The initial stage of the legal process therefore tends toinvolve reasoning from particular to particular without explicit generalization, which in the strict sense is the essence of reasoning by analogy. -In the second stage of the process where the problem is to definethe area of relevance the analogy is usually discarded.

-Accordingly, the area of relevance withinwhich the parties may offer evidence is
ordinarily established by takingthe bare outline of the factual situation and fitting it into some establishedlegal category. -The process is one of classification which is similar tothe process of diagnosis in the medical field. This fits into the patternof deductive logic.

-The process of fact-finding by courts is, in many respects, the most important of the legal functions and yet it is relatively neglected by legal writers. The explanation for this probably lies in the fact that the material is difficult to gather.

-The prevailing procedures in the trial courtsare, by and large, known only to

practicing lawyers and trial judges,most of whom seem to lack either the time or the inclination to write much of their experience. - But since most legal writing emanates fromthe universities rather than from the law offices of the country, themajority of legal writers have little experience with the fact-finding process upon which to draw. -Nevertheless, it is in the trial courts that the bulk of the legal work is done. -Obviously, the law has here acceptedsome kind of a logic of probability. -There are many obvious objections to any attempt to quantify the legal terms used to express the degree of probability required of the evidence in various cases. -Certainly any quantitative expression mightbe somewhat inasmuch as no quantitative measure of evidenceis yet available. misleading

-On sucha scale it might be said that a plaintiff must establish his case to a degree of warranted assertability of .51 or more in order to establish it by a fair preponderance of the evidence. - Clear and convincing evidencemight be set at a value of .60 or .70 depending upon the viewpoint ofthe court, and "proof beyond a reasonable doubt" might be set at a value of .90 -The multitude of logical problems involved in the investigation offacts and the weighing of evidence is too great to permit detailed consideration here. -The veryleast that can be said is that some systematic study of the principles of inductive reasoning, of the forms of interpolation, extrapolation, correlation and the theory of probability is essential to an, understanding of the task of weighing evidence and determining facts. -It is probably significant that the body of principles constituting the rules of evidence on the ostensible level are practically all rules of exclusion. -With rare and relatively unimportant exceptions the rules do not call for the production of any particular kind or even quantum of evidence, but operate solely by excluding classes of evidence which the law does not trust its servitors to evaluate.

-Principles drawn fromthe logic of probability and induction would require the production of evidence appropriate to the proposition being asserted. -The evidentiary rule of exclusion is presumably based upon the assumption that evidence of other similar negligentacts is either of no probative value or of such little probative value as not to be worth the time' of the court. -It should be noted also that most of the ostensible rules of interpretation relating to constitutions, statutes or documents are, in effect, rules of evidence. -It is, of course, traditional with common law courts to use precedent, or the analogy of previously decided cases, as a standard of decision. -However, to saythat the form of reasoning at this stage of the process is logically that of analogy is to miss the whole problem. -No analogy is involved untilafter the court has determined to resort to precedent and has selecteda specific analogue. -It is, of course, traditional with common law courts to use precedent, or the analogy of previously decided cases, as a standard of decision. -However, to saythat the form of reasoning at this stage of the process is logically that of analogy is to miss the whole problem. -No analogy is involved untilafter the court has determined to resort to precedent and has selecteda specific analogue. -A significant question to be answered from the logical viewpoint at this fourth stage of the legal process is whether or not there is any ground for believing one form of legal standard to be more valid or useful than another. -Another significant question is whether havingchosen a particular form of legal standard, such as analogy, there is anylogical ground for selecting one among several competing instances of this form as the most appropriate one for determination of the case inhand. -A significant question to be answered from the logical viewpoint at this fourth stage of the legal process is whether or not there is any

ground for believing one form of legal standard to be more valid or useful than another. -Another significant question is whether having chosen a particular form of legal standard, such as analogy, there is any logical ground for selecting one among several competing instances of this form as the most appropriate one for determination of the case in hand.

-Certainly the vast majorityof cases coming before the courts fall readily
enough into categories in which once the facts are established or assumed the standards of decision become either self-evident or readily found.

-it "hasnot failed to recognize that the law is to a certain extent a progressive science," and is "forced to adapt itself to new conditions of society. -It should now be apparent that if theargument which conceives legal reasoning as being based upon precedent analogy means merely that this is the form in which judicial rationalizations are commonly put then it is neither novel nor significant. -On theother hand, if the argument is meant to imply that there is any force ineither the form or substance of precedent-analogy which is capable ofdirecting the result in a doubtful case, then it is false.

-There is, however, a much more serious objection to

the use of precedent-analogy as the prevailing ostensible standard of judicial decision. -This is that it requires (or permits) judges to ignore what they are actually doing and to pretend that they are not considering matters which are in fact the controlling considerations. -In effect,the court talks out of both sides of its mouth depending upon the particular result which it seeks to achieve. -The fundamental objection to the legal philosophy which regards precedent-analogy as the form of legal reasoning to be used at this stage of the process is that it constitutes the law a closed system. -Thus in a closed logical system, such as thatpostulated by the precedentanalogy theory, the relationship betweenaction and information can only deteriorate and not improve. -While it is certainly true that judges necessarily living in society and being subject to all of its influences do consciously or unconsciously

absorb and officially utilize information from non-legal sources, still it should be apparent that this is a most haphazard institutional arrangement. It, therefore, seems apparent that if legal reasoning is to have any pretensions to logical validity with respect to the standards of decision adopted and utilized, it must adopt such forms and techniques as will permit it explicitly to receive and examine evidence relating not merely to the facts of a particular controversy but also relating to the social context out of which that controversy arises.

-It does mean, however, that when any case involves, or is claimed to involve, a conflict in social policies, then that question shall be regarded as one to be decided by the courts upon evidence offered, examined and received just as any other question in a lawsuit. -This also means that precedent-analogy may be used as the form of legal reasoning for selecting the standard of decision not as a matter of convention, but only in cases where there is in fact an analogy which is materially valid.

-The form of inductive, or empirical reasoning has every bit as

much claim to guide the work of the courts at this stage of the legal process as has the psuedo-deductive form of precedent-analogy. -So long as thelaw continues to deal with the wide variety of cases that are now its province, and until some new logical forms are devised, the law will be able to function adequately only if it is able to draw its standards of decision both from recorded precedent and from the great changing world of social conditions lying outside the courtrooms. -It is possible that one of the reasons for the comparative indifference of the bar generally to "theoretical" discussion of the legal process is that the problems being considered do not appear to be familiar ones. -"Legal research" as taught in law schools does

not mean searching for new and informative data to shed fresh light upon a problem, but rather means trying to collect as many examples as possible of a particular form of judicial expression. -The "casemethod" means extracting attractive rationalizations from reported opinions of past cases for use in justifying the conclusion to be reached in a present case. -In spite of the fact that law school training for a number of years has been directed primarily toward the derivation of controlling principles from established judicial precedents, we have never developed a very high order of either individual or institutional skill in the process. -Lawyers are taught to deal with precedents in terms of such concepts

as "contract", "property", "person", "negligence" and similar legal symbols. -Little emphasis is given to the fact that each of these terms is used in such a wide variety of situations that none of them retains any reliable significant common core of meaning. -it is logically fallacious to pretend that by manipulation of these legal symbols we can engage in reasoning which will determine the legal consequences of an act. -In these circumstances, traditional logic is impotent. It has neither tools nor techniques for going behind the terms contained in its propositions. -Consequently it is useless for the task of extracting the controlling considerations from the standards of decision. -Modern logic, however,offers the varied techniques of induction, plus the powerful instrument of semantics for this job. -The rigorous examination of the meaning of symbols is not only an independent discipline but is also, to a large extent, the foundation of the other branches of modern logic, as well as most of modern science.
-A few of the working postulates of semantics that seem particularly applicable to the legal process: A. The meaning of any term is the action which it evokes ot to which it refers. B. A term does not have the same meaning in different contexts. C. A term does not have the same meaning at different times. - No matter whatsimilarity may exist between the words of the judge who wrote an opinion a century or more ago and the words that are employed today to describe certain legal situations, it is impossible in the nature of things that the terms as logical categories can have the same meanings. -Thesimilarity of language may indeed suggest a similarity of meaning. However, before any attempt is made to build an analogy upon such an assumed similarity of meaning, logic requires that we investigate and specify the differences in meaning as well as the similarities. -The final step in the legal process, as it has been analyzed here, is that of applying the controlling considerations or principles derived from

the standards of decisions to the facts of the case in hand as inferred from the evidence.

-The courts have, accordingly, adopted the only logic that was available to them-the true-false deductive logic. -This form of .reasoning has atonce facilitated and reinforced the reliance upon precedent as a standardof decision. -In any event, whatever the historical reason, the tradition has become well established that the form of legal logic is deductive, that legal issues are decided on the basis of pre-existing precedentanalogies, that there may be an area of uncertainty as to the application of one or another precedent-analogy but that apart from this penumbra of uncertainty, judicial action is determined by this kind of legal reasoning. -In essence, this reasoning has thus been a priori. -The law has beenformally a closed system. -The materials from which legal reasoninghas proceeded have been the materials already included within the system. and the processes of reasoning have done no more than re-work existing materials. Lawyers and judges, however, recognizing the established forms of legal reasoning have assumed that logic meant a priori logic and, therefore, that the use of logic excluded the use of investigation, observation and empirical data. Consequently, the logical method in law has meant an arid introspective process by which courts have reached the conclusions of the most far reaching importance for society upon the basis of the least possible knowledge of either the conditions engendering the problem or the probable consequences of a particular decision. In protest against these attitudes a school of thought developed about the beginning of the twentieth century which decried excessive reliance upon such an arid logic and demanded that judges pay more conscious attention to the social significance of their decisions. As the twentieth century advanced, 'closer scrutiny was given to the whole legal process, particularly in light of the developing science of psychology. It was discovered that judges like other men were moved by psychological influences that did not necessarily c6incide with their avowed motives.

They reject the ideas of the old mysticism that there are transcendental standards that may be ,intuitively apprehended which are superior to all precedent and decision, and they use the principles of modern logic and semantics to expose the inadequacies and fallacies of traditional judicial rationalization. Thus they demonstrate that some vagueness and uncertainty are inherent in the legal process. The inevitable conclusion is that since there are no transcendental standards, and since all available formal guides to judicial action are hopelessly uncertain, we must rely upon judicial intuition. The fact that legal concepts are vague .and that the legal process operates with a degree of uncertainty should neither appall nor depress us. It is worthy of note that vagueness and uncertainty are not characteristics exclusively of law, or even of social or biological sciences generally. But this does not render imprecision a virtue or accuracy and relative certainty useless objectives. Humannature being what it is, a general acceptance of vagueness and uncertainty as desirable qualities in legal reasoning would soon result' in the complete disappearance of any degree of either precision or certainty. It would be equivalent to abolishing the distinction between ignorance and knowledge.
However, the time would seem to be here for lawyers to discard the fallacies and misconceptions of an outmoded philosophical scheme and to begin to synthesize by the most practical means, by use and trial in the legal process, some of the more seminal and catholic principles of modem logic. The first misconception that must be discarded is the assumption that there is a dichotomy of logic on the one hand and experience on the other. It is the lesson of modern science that logic is helpless to determine material questions without reference to experience; and that experience lacks intellectual significance without the interpretative aid of a rigorous logic. As a corollary, it must be recognized that there is no logical formula in any system which can guarantee the results of reasoning to be certainty either

valid or accurate. Modern logic makes no such pretenses. It offers no forms as warrants of its results. It suggests that the best way of dealing with complex problems is to analyze, investigate and evaluate all of the considerations and possibilities both formal and material and to validate material conclusions by practical verification. But simplicity is not a guarantee of utility and neither syllogism nor analogy have contributed much of certainty to the legal process in recent times. Perhaps the greatest impediment to the use of modem logic in fields such as law is that it does not come in ready made forms which need be decked out only with a few appropriate terms in order to begin full scale functioning in a fresh field. The forms of modern logic are, by and large, developed in connection with specific subject matter, and most of the work of adaptation to the legal process remains to be done. the basic rules of a modern legal logic. (1) The meaning of all significant terms should be analyzed to the concrete (conduct) level. (2) All implicit assumptions should be explicated as far as possible. (3) Factual postulates should be empirically verified. (4) The multiplicity of alternative inferences from any given data should be recognized and considered. (Things are much more frequently some shade of gray than they are black or white). (5) The strength of all inferences should be evaluated, and inferences should be regarded not as established "facts" but as probability values. (6) Substantive conclusions can be validated only by their material consequences and not by their formal symmeiry. This logic is the logic of democracy. It assumes that it is not enough to mask disagreements by the use of vague or misleading terms, ' but that its task is to provide techniques for reaching agreement by rational means. It postulates that all rational procedure requires the semantic analysis of terms and concepts in order that meaning and frames of reference may be as clear and specific as possible. It assumes that such rational procedures, if they do not eliminate, can at least minimize the amount of controversy and misunderstanding among men. Finally, it assumes that an important function and ideal of the law is to produce as much common understanding as possible within the community with relation to its subject matter.

it follows that legal logic must be of a nature competent to deal with any aspect of experience. It is not enough that the logic of the law should be engaged in shuffling and reshuffling the empty forms of legal rationalization, with The future of the law, and perhaps of society itself, will depend upon the ability of the legal professionals to develop and utilize patterns and forms of thinking in the law adequate to deal with the complex problems of modern life. An adequate legal logic will intimately relate the life of the law to the experience of all life.