Legal reasoning

Legal reasoning
Legal reasoning is a method of thought and argument used by lawyers
and judges when applying legal rules to specific interactions among legal
persons. Legal reasoning in the case of a court’s ruling is found in the
‘Discussion or Analysis’ section of the judicial ruling.
It is here that the court gives reason for its legal ruling, and it helps other
courts, lawyers and judges to use and follow the ruling in subsequent
proceedings. Therefore, the ‘discussion or analysis’ section must be well
reasoned and written.
Precedent and Analogy
The two central forms of legal reasoning are arguments from precedent and analogy. These are
found in many legal systems such as the common law which is found in both England and the
United States.

● Precedent is where an earlier decision is applied in a later case because the two cases are
same.
● Analogy involves an earlier decision being used in a later case because the later case is
similar to the earlier one.

Precedent and analogy do however present philosophical problems. For instance, when are two
cases deemed ‘same’ so as to apply precedent? When two cases are considered ‘similar’ to justify
analogy? In both situations, why should the decision in the earlier case affect the decision in the
latter case?
cont...
Inherent within legal reasoning is the acceptance of the law and a
leaning towards working within the existing legal framework. It is
true to say that there is a bias towards maintaining the existing
rules. Nevertheless, the bias does not presume the law as it is to
be just, fair or practical and thus immune from change.
Judges have often in the past made use of provisions in the law to
avoid applying precedent or analogy in instances where such an
application would result in unfair or undesirable outcomes.
Elements of Legal Reasoning
Legal reasoning reveals why and how the court, lawyer or judge came to their
decision or argument on the case.
There are core elements that must appear and be addressed in the reasoning:
● The question or the legal issue before the court
● The relevant facts of the case
● The legal rule
● Other considerations that may be brought before the court

As such, there is the burden to address the stated elements clearly and concisely.
This may be done using a deductive or analytical reasoning.
Deductive Reasoning
This is a means of drawing out ruling from another judicial opinion, or existing
constitution, legislative provision and applying it in another case. The rule statement is
mostly broad rather than narrow when using deductive reasoning. This approach is
mechanical and is therefore effective only in ideal situations and often unsatisfactory.

The approach faces many challenges among them being:

● Semantic difficulty – due to the various meanings that words hold, it is often
impossible to attribute one particular meaning to a specific word and so to be
understood by all parties
● There may arise unremunerated circumstances that would demand a different
legal treatment
cont...
● The occurrence of obstacles preventing the upholding of
previous rule statements
● Rules based on ontological principles being insufficient to
determine between conflicting interests

Analogical Reasoning
cont...
This involves the identification of the similarities and differences of the facts in the precedential
and the case to be determined. After the identification, then deciding whether the case to be
determined is similar or different from the precedent in the important aspects with regards to the
matter being decided. Following the findings, the case precedent may then be followed or
distinguished.

It is important to note that there are peculiar situations where both of the above methods will not
suffice in determining a case, and the judge may then rule according to personal preference.

Circumstances that may prompt such a treatment include but are not limited to:

● Where the law is obscure: the rules are too fragmentary, imprecise or partial to describe the
present case facts
● Where there are no rules provided
cont….
All legal reasoning follows one path. No legal argument can be accepted or
rejected without all of the following pieces

1) Issue - What specifically is being debated?

2) Rule - What legal rule governs this issue?

3) Facts - What are the facts relevant to this Rule?

4) Analysis - Apply the rule to the facts.

5) Conclusion - Having applied the rule to the facts, what's the outcome?
Judicial reasoning
Law is sometimes described as a system of practical reasoning that involves
the application of a logical set of steps based on applying the law to a factual
scenario to reach a decision. The rules of statutory interpretation and the
principle of the doctrine of binding precedent create the impression that
judicial decision-making involves processing outcomes that are largely
determined by logic. But is this actually the case?
Logical reasoning informs judicial reasoning and decision-making. You will
explore logical reasoning before considering how closely logical reasoning
and judicial reasoning resemble one another.
Three forms of logical reasoning
Three forms of logical reasoning are particularly relevant to the judicial
decision-making process: deductive, inductive and reasoning by
analogy. Deductive reasoning involves starting with a general principle
and drawing a specific conclusion based on it. Inductive reasoning
involves upturning this process, using specific outcomes to construct a
general principle that also applies to the scenario at hand. The
relationship between general principles and specific cases in these
two forms of reasoning is illustrated by the following diagram:
cont...
cont...
Reasoning by analogy is sometimes considered a branch of inductive
reasoning, but it moves from specific evidence to draw a specific
conclusion without constructing a general principle. It relies on one set
of facts being sufficiently similar to another set of facts to infer that the
same outcome ought to be reached.
Deductive reasoning
The most famous type of deductive reasoning is the syllogism. A classic
example of this involves the ancient Greek philosopher Socrates:
cont...
● all men are mortal
● Socrates is a man
● therefore Socrates is mortal.

As legal reasoning is the subject of this course, the following legal syllogism can be used:

● criminal offences are unlawful

● theft is a criminal offence
● therefore theft is unlawful.

This syllogism is illustrated as following:

cont...
cont...
In the diagram the arrows and numbering illustrate the steps in the process. First,
there is a ‘major premise’, a general statement that is known to be true. It
describes two categories of things, one that fits inside the other. Second, there is a
minor premise, another statement we know to be true, which engages with the
smaller category of the major premise and the specific case at hand. The third
step allows us to take what is known from the first two premises and conclude
something new about the case, which is that it fits within the largest category. The
circles in the diagram represent how the categories fit together in deductive
reasoning: ‘B’ fits within ‘A’ and ‘C’ fits within ‘B’, so ‘C’ must also fit within ‘A’.
cont...
Deductive syllogisms depend on a strict order of logic that cannot easily be
altered. The idea of deduction in general – reasoning from the general to the
specific – is not quite so strict, but you have to make sure each category of objects
fits entirely within the wider category above it to be certain of a categorical
conclusion.
The important thing to remember about deductive reasoning at this stage is that
the logic is flawless when applied correctly. If the premises are true and the
statements are properly constructed in relation to one another, the conclusion will
always be true. But the syllogism itself says nothing about the truth of the
premises or the construction of the statements; if either of these is flawed then the
conclusion is also fallible.
Inductive reasoning and reasoning by analogy
Inductive reasoning
Inductive reasoning involves drawing a general conclusion from specific examples.
When inductive reasoning takes place, the process is generally the reverse of
deductive reasoning. It involves finding out the name of the wider category A of
things that correctly describes all of the observable objects in that category. This
can then be used to say something new about the specific case C that you are
dealing with at the time. It is done by observing what you already know from a
number of existing examples, collecting that knowledge together and forming a
general rule about all of those examples that should also apply to other examples
in the same category.
cont….

It is rarely possible, for example, to observe all possible

instances of something. Therefore a general conclusion
based on some specific instances that purports to account
for all instances will not always or necessarily be true. It will
only probably be true based on the available evidence.
Look at this example, which might come up if you were
wandering around ancient Greece:
cont...
cont….

If you happen to see only Greek men, then you might

logically but incorrectly conclude that all humans are
Greek. (You might also incorrectly conclude that all
humans are men.) The logical relationship between the
statement categories is consequently less certain than
with deductive reasoning, and is illustrated as following :
cont...
cont...
Inductive reasoning is not as rigorous as deductive reasoning
in terms of its logical process. Instead, it is the process of
building a hypothesis, a theory about a general rule, from the
evidence available that both supports that theory and
contradicts competing theories. The more evidence there is
available, the higher the probability that the conclusion, the
general rule, will be correct, but this can never be known for
certain.
Reasoning by analogy

Here you are aware of the characteristics of your specific case (step 1), and
you are aware of a number of previous cases that may share some of these
characteristics with your case. You locate the examples that share the
material characteristics of your case (step 2). These form a loose collection of
analogous experiences (category A) which are similar to a general principle in
inductive reasoning. In step 3, based on the similarities, you assume that your
case has other similar characteristics to the analogous experiences,
effectively placing your case within the same category as them. In judicial
reasoning, this usually involves applying the same legal outcome to your case
as was applied to the analogous precedent case or cases.
cont...
The conclusion using reasoning by analogy is much less likely to be certain than for
deductive reasoning. It is sometimes considered a form of inductive reasoning, and is
unstable because it relies heavily on the choices that you make about which pre-existing
examples are similar to your case and why. The green exceptions in the diagram represent
cases that you did not consider to be analogous to your case in important ways, so they are
excluded. However, it might be that they share other similarities with your specific case that
you did not think of, or did not consider important. In reality, therefore, your case may belong
in a different category from that which you placed it on your conclusion. Or it may belong
with both sets of examples at once, and you have had to make a choice about which cases
are more similar in more important ways to yours to decide which legal outcome to transfer
across. The truthfulness of the conclusion is entirely dependent on the strength and
accuracy of the analogies drawn.
cont...
The operation of judicial precedent can also be structured in the form of a syllogism. The
prior case that has created the precedent is the source of the general rule and the facts of
the current case fit within the facts of the prior case, meaning that the facts of the current
case also fit within the same general rule.
cont...
Legal precedent as deductive reasoning

It is however misleading to say that applying case precedent is a

deductive process. Common law as a whole can be described as an
inductive system of law because it involves developing principles ‘bottom-
up’ from specific cases rather than ‘top-down’ from highly generalised
legal principles. Applying case precedent involves active choices to select
cases with appropriate similarities to a new case and then treating it in the
same way as a result. This is more accurately described as an analogous
process than a deductive one.
Reasoning the law
The way in which judges reason their decisions is a vital component of how the law
functions. The process of interpreting statutory provisions and applying case law is far
more complicated than a simple formula for logical reasoning would suggest. It seems
inevitable that factors outside of the logical and legal reasoning process must play a
part in judicial decision-making. The amount of uncertainty inherent even in formal
logical reasoning processes gives room for the engagement of non-legal factors to
contribute to legal judgments: these factors may include morality, economics, politics
and social issues. Judgments often come across as highly reasoned arguments,
reaching the only inevitable conclusion based on the law through an objective and
rigorous analysis of the evidence – statutes, common law, case law, etc. However, this
is as much part of the narrative structure and rhetoric of legal argument as it is a reality.
The declaratory theory and judicial deference
Alongside the constitutional principles of parliamentary sovereignty and the
separation of powers, there exist some principles and theories that encourage
the idea that the judiciary should not and does not interfere with Parliament’s
sovereign law-making ability. Here we will look at two of these, the declaratory
theory of law and the principle of judicial deference. The declaratory theory of
law is a theory of how law is interpreted by the courts in practice: it supports
the idea that judges do not impinge on Parliament’s law-making competence.
Judicial deference is a constitutional principle that supports the idea that the
judiciary should not overstep its constitutional role in relation to Parliament.
The declaratory theory of law
The declaratory theory of law represents one side of a debate about whether
judges actually make law when they produce judicial decisions or merely
declare what the existing law is. The declaratory theory in its starkest form
says that ‘the judge is no more than the voice of an autonomous legal system
that she/he, through her/his legal training, is able to gain access to but is in no
way able to influence’ (Slapper and Kelly, 2013, p. 472). The logic behind this
approach is that the judge is not making the law but merely declaring what
Parliament has created. If this is accepted, the judge does not make the law
but is only applying the legislation (legal rules) created by Parliament.
cont...
While it is generally understood that in practice judges do not
merely declare the law, they are also often careful in their
judgments not to suggest they are creating new law, because this
is beyond their formal constitutional role. You saw earlier that it is
difficult to see law as a process of pure, logical reasoning, despite
the apparent objectivity and neutrality of legal judgments, which
give the impression that judges are simply figuring out and applying
what the law already says.
cont...
Judicial decisions are often couched in the language of objectivity and at
pains to show that conclusions are based on legal rules and logical argument
rather than choices and extra-legal factors. However, the courts have to deal
with many issues that require inherently political judgements and/or are not
covered by the existing law. In these situations, factors such as the choice of
precedent, identification of ratio decidendi, identification of relevant analogies,
and even the application of overriding public policy concerns can reveal the
devices used to ensure judgments appear both neutral and purely legal, and
thereby free from bias and the influence of non-legal factors.
Use of Facts in court of law

Legal facts are the information on which lawyers base their

arguments, in order to win cases in courts of law. The evidence
presented during a trial is designed to prove the facts supporting one's
argument. Evidence is the key element in convincing the judge or jury
that your facts are the proper ones on which to base a final decision. It
is up to each side in a trial to prove, to the satisfaction of the court and
through the presentation of evidence, the facts needed to support its
case.
cont...
The most common way in which evidence is presented in
court is through oral testimony. Oral testimony occurs when a
witness swears to tell the truth or be subject to the penalty of
perjury, and then relates his or her experiences. Other forms
of evidence such as objects from a crime scene, or a signed
contract in a civil suit, can be submitted to the court as well.
Concrete pieces of evidence like this are called physical
evidence.
cont...
Some facts are proven with circumstantial evidence. Circumstantial
evidence is "evidence that may allow a judge or jury to deduce a certain
fact from other facts, which have been proven. A lawyer may support an
eyewitness account with evidence about the circumstances of the
situation, which helps the judge or jury logically deduce or reasonably
infer facts that cannot be proven directly. Fingerprints are a perfect
example of circumstantial evidence. There may be no eyewitness to place
an alleged burglar at the scene of a crime, but if the defendant's
fingerprints were found at the scene, it can be inferred that he or she was
there.
cont….

"Circumstantial evidence is generally admissible in court

unless the connection between the fact and the
inference is too weak to be of help in deciding the case.
Many convictions for various crimes have rested largely
on circumstantial evidence."