LEGAL TECHNIQUE AND LOGIC (LTL 122) First Year Law Bulacan State University College of Law Atty.

Raquel R. T. Pineda-Dolores Suggested Reading Materials/Sources: Aldisert, Ruggero J., Logic for Lawyers: A Guide to Clear Legal Thinking (3 rd ed., 1997) Epstein, Richard L., Critical Thinking (2nd ed., 1992) Moore, Brooke Noel and Parker, Richard, Critical Thinking (7 th ed., 2005) COURSE OUTLINE FINALS REVIEW GUIDE I. Introduction A. Basics of logic and its application to legal thinking and legal argument B. Civil Law Tradition v. Common Law Tradition 1. Definitions and differences 2. Is the Philippine legal system a civil law or common law system? Common law crimes Doctrine of nullum crimen nulla poena sine lege Exercise of the power of judicial review 3. Reasoning and the Common Law Tradition a. Adjudication of specific cases b. Universal acceptance derives from longevity, publication of judicial opinion, and conclusions reached by a publicly expressed reasoning process (rules of logic) c. Fundamental characteristics of common law tradition d. Doctrine of precedent or stare decisis (stare decisis et non quieta movere) The Role of Logic 1. Case law stands or falls on the reasons articulated to justify it 2. Formation of principles in case law emerges from the process of inductive generalization 3. Value Judgments

C.

II.

Legal Thinking A. Moral, Aesthetic and Legal Reasoning 1. Moral reasoning and moral deliberation a. Moral relativism

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b. Utilitarianism c. Duty theory or deontologism d. Divine command theory e. Virtue ethics Cases: White Light Corp., et al. v. City of Manila, G.R. No. 122846, 20 January 2009 Estrada v. Escritor, A.M. P-02-1651, 4 August 2003 Estrada v. Escritor, A.M. P-02-1651, 22 June 2006 2. 3. Aesthetic reasoning Legal reasoning Similarities between moral and legal claims: they are both often prescriptive (they tell us what we should do); both play a role in guiding our conduct Moral offenses; crimes listed in our penal code that also are offenses against morality; exceptions Grounds for justification of laws a. Legal moralism b. Harm principle c. Legal paternalism d. Offense principle Appeal to precedent

Cases: Estrada v. Escritor, A.M. P-02-1651, 4 August 2003 Ebralinag, et al. v. Division Superintendent of Schools of Cebu, et al., G.R. Nos. 95770 & 95887, 29 December 1995 Philippine Guardians Brotherhood, Inc. (PGBI) v. Comelec, G.R. No. 190529, 29 April 2010 B. III. Elements of Legal Thinking

The Language of Logic A. B. Basic expressions in logic Conclusion testing

IV.

Introduction to Deductive Reasoning and Inductive Reasoning A. Deductive Reasoning Two propositions which imply the third proposition, the conclusion, are called premises. The broad proposition that forms the starting point of deduction is called the major premise; the second proposition is called the minor premise. The major premise represents the all; the minor premise, something or someone included in the all.

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B.

Inductive Reasoning In law, as in general logic, there are fundamental differences between the two types of reasoning:

Deductive Reasoning The connection between a given piece of information and another piece of information concluded from it is a necessary connection. A deductive argument is one whose conclusion is claimed to follow from its premises with absolute necessity. If the premises are valid, the conclusion is valid. If the conclusion is valid, the premises are valid.

In a valid deductive argument, if the premises are true, the conclusion must be true. Moves by inference from the general (universal) ultimately to the particular.

Inductive Reasoning The connection between given pieces of information and another piece inferred from them is not a logically necessary connection. An inductive argument is one whose conclusion is claimed to follow from its premises only with probability and not absolute necessity. All that is represented is that the conclusion is more probable than not. Its premises do not provide conclusive support for the conclusion; they provide only some support for it. In a valid inductive argument, the conclusion is not necessarily an absolute truth; by induction, we reach a conclusion that is only more probably true than not. Moves from the particular to the general (universal) (induced generalization by enumeration of instances), or from the particular to the particular (analogy).

The core of the difference lies in the strength of the claim that is made about the premises and its conclusion. 1. Inductive Generalization Formulating a generalization in the law enumerating a series of tight holdings of cases (legal rules) to create a generalized legal precept (legal principle) is at best a logic of probabilities. Analogy Pursuant to the method of analogy, the courts do not generalize from a series of holdings, but proceed from certain relevant resemblances and differences between the case at bar and another single case or a relatively small group of cases.

2.

V.

Deductive Reasoning A. Categorical Syllogism

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Categorical syllogism: deductive argument which consists of three categorical propositions, consisting exactly three terms, in which each of the three terms occurs in exactly two of the propositions. Terms a. Major Term b. Minor Term c. Middle Term Premises a. Major Premise b. Minor Premise c. Conclusion Quantity of Propositions or Terms a. Propositions: i. Broad or general universal ii. Narrow or specific particular b. Terms: i. Broad or general distributed ii. Narrow or specific undistributed Categorical Propositions and Classes Case: MacPherson v. Buick Motor Co., 227 N.Y. 382, 111 N.E. 1050 (1916) include Chief Judge Bartletts dissenting opinion

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B.

Enthymeme 1. 2. Identifying unstated premises Identifying unstated conclusions

Case: Leliefeld v. Johnson, 659 P.2d 111 (1983) C. Polysyllogism D. E. Prosyllogism Episyllogism

Premises: Validity and Soundness Six Rules of the Categorical Syllogism (CS) 1. A valid CS must contain exactly three terms, each of which is used in the same sense throughout the argument. 2. In a valid CS, the middle term must be distributed in at least one premise. 3. In a valid CS, no term can be distributed in the conclusion which is not distributed in the premise. 4. No CS is valid which has two negative premises.

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5. If either premise of a valid CS is negative, the conclusion must be negative. 6. No valid CS with a particular conclusion can have two universal premises. Cases: Morales Development Co., Inc. v. Court of Appeals, et al., G.R. No. L-26572, 28 March 1969 Tavora v. Gavina, G.R. No. L-1257, 30 October 1947, including Resolution dated 11 December 1947

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VI.

Inductive Reasoning A. Critical in the common-law tradition; undergirds the doctrine of precedent: like things must be treated alike Inductive Generalization (induction by enumeration) Underlies the development of the common law; from many specific case holdings, a generalized proposition is reached. Analogy Does not seek proof of an identity of one thing with another, but only a comparison of resemblances. Unlike the technique of enumeration, analogy does not depend upon the quantity of instances, but upon the quality of resemblances between things. In the law, points of unlikeness are as important as likeness in the cases examined. Criteria in the appraisal of analogical arguments: 1. The acceptability of the analogy will vary proportionally with the number of circumstances that have been analyzed. 2. The acceptability will depend upon the number of positive resemblances (similarities) and negative resemblances (dissimilarities). 3. The acceptability will be influenced by the relevance of the purported analogies. An argument based on a single relevant analogy connected with a single instance will be more cogent than one which points out a dozen irrelevant resemblances. Cases: MacPherson v. Buick Motor Co., 227 N.Y. 382, 111 N.E. 1050 (1916) Nielson and Co., Inc. v. Lepanto Consolidated Mining Co., G.R. No. L21601, 17 December 1966

B.

VII.

Introduction to Fallacies In ordinary usage, fallacy can be used to describe a false or erroneous idea; in the law, it refers to the logical form or content of a syllogism. Fallacies are dangerous because they are false conclusions or interpretations resulting from thinking processes that claim or appear to be valid, but fail to conform to the requirements of logic. Formal Fallacy argument whose conclusion could be false even if all its premises are true; can be detected by examining the form or structure of the argument Informal Fallacy any other argument that does not properly establish the supported conclusion; an argument contains an informal fallacy when at least one of its premises is not true, or when the rules of inference are not properly respected

A. B.

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VIII.

Formal Fallacies A. Fallacies in Categorical Syllogism 1. The Fallacy of Four Terms (Quaternio Terminorum) Logical quadruped argument has more than three any When an argument has in effect two middle terms, it lacks basis of comparison for its minor and major terms, so that it is impossible to draw a legitimate conclusion. If a term is used in more than one sense, it also violates Rule One; it also constitutes the material fallacy of equivocation (infra). The use of an ambiguous term in more than one of its senses amounts to the use of two distinct terms.

terms

2.

The Fallacy of Undistributed Middle In order to effectively establish the presence of a genuine connection between the major and minor terms, the premises of a syllogism must provide some information about the entire class designated by the middle term. If the middle term were undistributed in both premises, then the two portions of the designated class of which they speak might be completely unrelated to each other. The Fallacy of the Illicit Process of the Major Term and a. Illicit Major Major term in the major premise is undistributed but is distributed in the conclusion; the term is applied to all members of a class in the conclusion even though it was limited to some members of the class in the major premise. Illicit Minor Minor term in the minor premise is undistributed by is distributed in the conclusion.

3. Minor Term

b.

Case: Suga, et al. v. Lacson, et al., G.R. No. L-26055, 29 April 1968 4. The Fallacy of Negative Premises/Exclusive Premises The purpose of the middle term in an argument is to tie the major and minor terms together in such a way that an inference can be drawn, but negative propositions state

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that the terms of the propositions are exclusive of one another. In an argument consisting of two negative propositions, the middle term is excluded from both the major term and the minor term, and thus there is no connection between the two and no inference can be drawn. 5. The Fallacy of Particular Premises (Drawing an affirmative conclusion from a negative premise, or drawing a negative conclusion from an affirmative premise) An affirmative proposition asserts that one class is included in some way in another class, but a negative proposition that asserts exclusion cannot imply anything about inclusion. For this reason an argument with a negative proposition cannot have an affirmative conclusion. Existential Fallacy Because we do not assume the existential import of universal propositions, they cannot be used as premises to establish the existential import that is part of any particular proposition.

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B.

Fallacies in Hypothetical Syllogism Hypothetical Syllogism this does not directly assert the existence of a fact; instead, it contains a condition, if, unless, granted, supposing, etc. Hypothetical proposition conditional if-then statement; compound proposition in that every such proposition consists of two component propositions: a. Antecedent component proposition following if b. Consequent component proposition following then Forms and fallacies: a. Modus ponens valid if and only if: i. the categorical premise affirms the antecedent of the conditional premise; and ii. the conclusion affirms the consequent of the conditional premise Fallacy of affirming the consequent b. Modus tollens valid if and only if: i. the categorical premise denies the consequent of the conditional premise; and

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ii. C.

the conclusion denies the antecedent of the conditional premise Fallacy of denying the antecedent

Fallacies in Disjunctive Syllogism Disjunctive Syllogism one premise takes the form of a disjunctive proposition and the other premise and the conclusion are categorical propositions which either deny or affirm part of the disjunctive proposition Moods of disjunctive syllogism: 1. Mood Which By Denying Affirms this does not assume that the disjunction asserts two mutually exclusive disjuncts; the disjunctive proposition is not taken to affirm categorically that only one disjunct is true; it says only that at least one disjunct is true, leaving open the possibility that both may be true 2. Mood Which By Affirming Denies this assumes that the disjunction asserts two mutually exclusive disjuncts; the disjunctive proposition is taken to affirm categorically that only one disjunct is true Fallacies: 1. Fallacy of Missing Disjuncts failure to include all possibilities or alternatives in the major premise 2. Fallacy of Nonexclusivity applies only to the second mood; occurs whenever one assumes that affirming one disjunct shows the other to be false, when in fact it is possible for both to be true

IX.

Informal Fallacies A. Fallacies of Irrelevance and Distraction 1. Fallacy of Irrelevant Evidence (Ignoratio elenchi) or Fallacy of Missing the Point Purports to establish a particular conclusion but is instead directed to proving another conclusion Fallacies of Distraction Shift attention from reasoned argument to other things that are irrelevant, irrational and often emotional a. Appeal to Pity (Argumentum ad misericordiam) Evades the pertinent issues and makes a purely appeal Not a fallacy when relevant to the decision, e.g. equity cases and discretionary sentencing; however, if the question under consideration is a

2.

emotional

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factual issue, an appeal to pity is irrelevant, and deflects attention away from the facts. b. Appeal to Prestige (Argumentum ad verecundiam) or Appeal to Inappropriate Authority Appeal to authority or prestige of parties having no legitimate claim to authority in the matter at hand Use of pedantic words and phrases, references, quotations, length, detail and specificity Case: Neill, J., dissenting, Cresap v. Pacific Inland Navigation Co., 478 P.2d 223, 228 78 Wash.2d 563 (1970) c. Appeal to Ridicule (Argumentum ad hominem) Shifts an argument from the point being discussed (ad rem) to irrelevant personal characteristics of an opponent, and makes the opponent the issue However, ad hominem may be allowed in the use of evidence of both bad character and bias for the purpose of attacking a witness credibility. Another proper use is in receiving expert witness testimony. See: Rules of Court: Sec. 20 Rule 130 (Witnesses; their qualifications) Sec. 51 Rule 130 (Character evidence not generally admissible; exceptions) Sec. 11 Rule 132 (Impeachment of adverse partys witness) Sec. 14 Rule 132 (Evidence of good character of witnesses) Cases: Melvin v. Belen, A.M. No. RTJ-08-2119, 30 June 2008 Sy, et al. v. Fineza, A.M. No. RTJ-03-1808, 15 October 2003 d. Appeal to the Masses (Argumentum ad populum) Departs from the question under discussion and attempts to win assent to a proposition by making an appeal to the feelings and prejudices of the multitude Approaches: a. Bandwagon Approach - Everybody is doing it. b. Patriotic Approach - "Draping oneself in the flag.

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c. doing it.

Snob Approach - All the best people are

5. Appeal to the Ages or Tradition ( Argumentum ad antiquitam) Holds that determinations and customs of our fathers and forbears must not be changed 6. Appeal to Novelty, Modernity or (Argumentum ad novitatem) Claims that an idea or proposal is exclusively because it is new and modern Youth superior

7.

Appeal to Terror (Argumentum ad terrorem) Appeal to fear of exaggerated consequences in the event an adversarys argument prevails Argument from Force (Argumentum ad baculum) Substitutes veiled threats for logical persuasion or asserts something must be the case because thats just the way things are

8.

9. Argument from Ignorance (Argumentum ad ignoratiam) Argues that a proposition is true simply on the basis that it has not been proved false, or that it is false because it has not been proved true Exception: meeting ones burden of proof in a trial See: Sec. 2 Rules 133 Rules of Court (Proof beyond reasonable doubt) 10. Straw Man Argument Includes any lame attempt to prove an argument by overstating, exaggerating, or over-simplifying the arguments of the opposing side Fallacy of Stacking the Deck The speaker stacks the deck in his favor by ignoring examples that disprove the point, and listing only those examples that support her case. This fallacy is closely related to hasty generalization, but the term usually implies deliberate deception rather than an accidental logical error. Contrary to Fact (Argumentum ad

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12. Hypothesis speculum)

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Trying to prove something in the real world by using imaginary examples alone, or asserting that, if hypothetically X had occurred, Y would have been the result.

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Genetic Fallacy Claims that an idea, product, or person must be untrustworthy because of its racial, geographic, or ethnic origin

B.

Fallacies of Context and Content 1. Overzealous Application of a General Rule / Fallacy of Accident (Dicto simpliciter) Applies a generalization to an individual case that it does not necessarily govern; the mistake often lies in failing to recognize that there may be exceptions to a general rule Hasty Generalization / Fallacy of Selected Instances Occurs when we construct a general rule from an inadequate number of incidents; results from enumerating instances without obtaining a representative number to establish an inductive generalization Fallacy of Statistical Simplicity The probability of a sampling error tends to diminish as

2.

the size of the sample increases. But size alone is no protection. 3. its cause a. No causa pro causa Mistakes what is not the cause of a given effect as the real cause; the events could be so correlated because they were both caused by a third, unexamined event, although neither caused the other Post hoc ergo propter hoc The suggested inference that one event is the cause of another simply because the first occurs earlier than the other; more prevalent in the law B comes after A (post hoc). Therefore (ergo), B comes because of A (propter hoc). False cause Treats as the cause of a thing something that is not really

b.

4. Consequent

Irrelevant Conclusion (Non sequitur) or Fallacy of the

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Argument that contains a conclusion that does not necessarily follow from the premises or any antecedent statement offered in its support The difference between the post hoc and the non sequitur fallacies is that the post hoc fallacy lacks a causal connection; the non sequitur fallacy lacks a logical connection.

5.

Compound (complex) questions Arises when: (1) two or more questions are asked at once, and a single answer is required; (2) a question is phrased as to beg another question; (3) the question makes a false presumption or (4) the assertion frames a complex question but demands a simple answer. See: Relevant rules on Evidence, e.g. laying the basis or predicate for questions in the examination of witnesses (Petition

6. principii)

Circular Argument / Begging the question

Assumes the truth of what one seeks to prove in the effort to prove it; the conclusion lies buried in the premises used to reached that conclusion

Case: Viray, et al. v. Court of Appeals, G.R. No. 92481, 9 November 1990 7. Tu quoque A charge of wrongdoing is answered by a rationalization that others have sinned, or might have sinned. Yet, in the law, tu quoque arguments can sometimes be used as an effective defense, e.g. in matters of provocation, in the equitable defense of in pari delicto See: Article 13(4), Revised Penal Code (mitigating circumstance of sufficient provocation or threat of the offended party which immediately preceded the act) Case: Bercero v. Capitol Development Corporation, G.R. No. 154765, 29 March 2007

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C.

Linguistic Fallacies 1. Equivocation Confuse several meanings of a word or phrase in the context of an argument; allow the meaning of a term to shift between the premises of the argument and the conclusion 2. Amphibology Ambiguity comes from the grammatical structure; the double meaning lies not in the word but in the syntax or grammatical construction of a sentence Arise in an argument where meaning is muddled by slovenly syntax bad grammar, poor punctuation, dangling participles, misplaced modifiers Composition Mistakenly impute the attributes of a part of a whole to the whole itself Division Mistakenly argue that attributes of a whole must also be present in each part of that whole Vicious Abstraction Removal of a statement from its context, thereby changing the meaning of an argument Argumentum ad nauseum Unnecessarily long brief or a windbag oral argument where the advocate seeks to sustain his position by repetition piled upon repetition rather than by succinct, effective proof or logical development

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