Indiana Law Journal

Volume 27 | Issue 4

7-1-1952

An Introduction to Legal Logic

Lee Lovevinger
Member of Supreme Court Bar; Member, Minnesota Bar

Follow this and additional works at: http://www.repository.law.indiana.edu/ilj

Part of the Legal Education Commons
Recommended Citation
Lovevinger, Lee (1952) "An Introduction to Legal Logic," Indiana Law Journal: Vol. 27: Iss. 4, Article 1.
Available at: http://www.repository.law.indiana.edu/ilj/vol27/iss4/1

This Article is brought to you for free and open access by the Law School
Journals at Digital Repository @ Maurer Law. It has been accepted for
inclusion in Indiana Law Journal by an authorized administrator of Digital
Repository @ Maurer Law. For more information, please contact
wattn@indiana.edu.

Article 1

INDIANA
Volume 27

LAW JOURNAL
SUMMER, 1952

Number 4

AN INTRODUCTION TO LEGAL LOGIC

by
LEE LOEVINGER*

I
Most men will admit that they are not handsome. Many will concede they are not strong. But none will acknowledge that he is not
logical. This is no peculiarity of our own age, for three centuries ago
La Rochefoucauld remarked that men will often apologize for their
memory, but never for their judgment. We might dismiss the situation
as merely another idiosyncrasy of vanity were it not for the fact that
the logic which each man confidently claims to possess is nearly always
offered as the undeniable proof of some proposition which is quite contradictory to some other proposition that another man asserts with
equal assurance to be indubitably established by his own logic.
The paradox of contradictory claims made in the name of logic is
nowhere more evident than in the field of law. Logic, or reason, has
been claimed by philosophers both as the special possession and as the
principal foundation of law since at least the time of Aristotle. Indeed
that great thinker, who was the founder of logic as a self-conscious
discipline, identified the law with reason itself.- Following this concept,
the whole school of scholastic philosophers takes the view that the law
actually applied in society is-or ought to be-composed of rules, logically deduced from certain immutable "natural" principles which are themselves discovered by man through the operations of reason. Many
whose ,names are well known to lawyers, from Thomas Aquinas and
William Blackstone down to contemporary figures, have adopted essentially this position.
*A.B., 1933; LL.B., 1936, University of Minnesota; Attorney, NLRB, 1937-41;
Attorney, Dep't of Justice, 1941-46; Special Counsel to Senate Small Business Committee, 1951; Author of THE LAW OF FRE ENxRPRsz (1949); Member of Supreme
Court bar, and Minnesota bar.
1. A TREATiSE Ok GOVERNmENT, OR, THaE POLiTiCs OF ARiToThE, bk. III, c. 16
(Ellis translation, Everyman's Library ed., 1943).

INDIANA LAW JOURNAL

The most important modern challenge to this view stems from the
thinking of Jhering and Holmues, and is often epitomized in Holmes epigrammatic slogan, "The life of the law has not been logic; it has been
experience." 2 Like most slogans, this is at least superficially misleading.
Holmes did not mean to minimize the importance of rational thinking
in the law, but, quite on the contrary, to urge a more conscious and
rational recognition of the grounds of judicial decision. Later Holmes
elucidated on what he dubbed "the fallacy of logical form:"
The fallacy to which I refer, is the notion that the only
force at work in the development of the law is logic. In the
broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a
fixed quantitative relation between every phenomenon and its
antecedents and consequents. If there is such a thing as a
phenomenon without these fixed quantitative relations, it is a
miracle. It is outside the law of cause and effect, and as such
transcends our powers of thought, or at least is something to
or from which we cannot reason. The condition of our thinking about the universe is that it is capable" of being thought
about rationally, or, in other words, that every part of it is
effect and cause in the same sense in which those parts are
with which we are most familiar. So in the broadest sense it
is true that the law is a logical development like everything else.
The danger of which I speak is not the admission that the
principles governing other phenomena also *governthe law, but
the notion that a given system, ours, for instance, can be
worked out like mathematics from some general axioms of
conduct.
This mode of thinking is entirely natural. The
training of lawyers is a training in logic. The processes of
analogy, discrimination, and deduction are those in which they
are most at home. The language of judicial decision is mainly
the language of logic. And the logical method and form flatter
that longing for certainty and for repose which is in every
human mind. But certainty generally is an illusion, and repose
is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing
legislative grounds, often an articulate and unconscious judgment, it is true, and yet the very root and nerve of the whole
proceeding.... I think that the judges themselves have failed
adequately to recognize their duty of weighing considerations
of social advantage. The duty is inevitable, and the result of
the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation
of judgments inarticulate, and often unconscious, as I have
said. . . . I cannot but believe that if the training of lawyers
2. HOLMES, THE Commour LA w 1 (1881).

LEGAL LOGIC

473

led them habitually to consider more definitely and explicitly

the social advantage on which the rule they lay down must be
justified, they sometimes would hesitate where now they are
confident, and see that really they were taking sides upon debatable and often burning questions. 3
Between the iraditionalists 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 that
there are certain transcendental basic principles, which can be discovered
by immediate intuitive apprehension, and that from these we can by
deductive reasoning infer the most important rules of law. The r~alists
reject both the transcendental concept and the intuitive method of discovery, and insist that the basic principles of law must be directly based
upon empirical data, or experience. 4 There are a multitude of "schools"
of legal philosophy, but most reflect one or the other of these two basic
viewpoints, and all profess to employ logic in some form.
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.
Legal decisions, whether by a lawyer advising a client or a judge deciding
a case, are nominally determined by statutes and precedents. But it is
seldom that a question arises concerning a situation that is so clearly
and squarely within the terms of a statute or a former case that there
can be no doubt about the applicable rule. Consequently it is part of
the daily task of every lawyer to argue, and of every judge to decide,
whether one or another situation should be governed by this or that
rule. Sometimes all of those concerned will agree upon the proper
result. Far more often, opposing lawyers will take contrary positions
as to the law applying to particular facts; and not infrequently judges
of higher and lower-and even sometimes of the same-court will disagree as to the appropriate decision of the questions presented by a single
record.
Yet invariably contending counsel and disagreeing judges will assert
the "logical" validity of their respective positions. It would hardly be
too much to say that the one single point on which all legar thinkers
agree is the necessity for the use of "logic" in determining rules and
deciding cases. It is most surprising, therefore, to find that in all the
3. Holmes, The Path of the Law, 10 HAav. L. REv. 457, 465-8 (1897) in COLLECTED
LEGAL PAMs 167, 180 et seq. (1920).
4. For a fuller discussion of the differing philosophical approaches to law, see
Loevinger, Jri,,etrics,33 MINN. L. REv. 455 (1949).

INDIANA LAW JOURNAL

vast mass of legal literature relatively little has been devoied to the
subject of logic, as such, in the legal process. Indeed, not much has
been added in this century to the perspicacious comments of Holmes
in the last.
One of the first, following Holmes, to write on this subject was
the scholarly philosopher Morris Cohen, not himself a lawyer. 5 Essentially his view was that of Holmes, though he makes a few points in
addition. He points out that the case method is merely a pedagogical
device and is not an adaptation of inductive scientific logic to legal
problems. Metaphysical philosophies of law that pretend to have no
empirical foundation are attempting the logically impossible, he states,
and, in fact, do smuggle in under a disguise the main facts of the social
order. The law at any given time is administered by men who cannot
help taking for granted many of the prevalent ideas and attitudes of
the community. But an undue reliance upon traditional logic leads to a
failure to distinguish between logical division and natural classification.
The courts are forced to recognize the existence of natural classes, but
they tend to regard them as absolute logical divisions. Thus they fail
to realize the difference between the useful approximation, which is the
natural classification of an empirical science, and the absolutely accurate
distinction which exists between the classes of a theoretical logic. This
difference has a great practical consequence. If we realize our classification is only approximate we will apply it cautiously expecting to find
cases that it will not fit. 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. And the application of logic must be
tempered by a recognition of the need for judicial discretion in dealing
with the atypical cases. The judge should be neither a logical automaton
nor a puppet of psychological impulses, but should have logically and
scientifically trained feelings.
A few years later, Cardozo, one of our greatest judges, sought to
give an account of the methods by, which a judge selects the principles
which will guide him from among the many available precedents for a
doubtful case. 6 He began by asserting the great difficulty of the task
and his own uncertainty. The problem, he said, is first to extract the
principle from the precedents, and then to determine the path or direction along which this principle is to develop. There are four kinds of
paths or lines along which the directive force of a principle may be
5.

in LAW
6.

Morris R. Cohen, The Place of Logic in the Law, 29 HARv. L. REv. 622 (1915)
AND THE SOCIAL ORDER 165
CARDozo,

Taz

(1933).

NATURE OF THE JUDICIAL PROCESS

(1921).

LEGAL LOGIC
exerted. First, is .the line of logical progression, which he calls the
rule of analogy or the method of philosophy. Second, is the line of
historical development, or the method of evolution. Third, is the line
of 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. One or another of tthese methods is ordinarily dominant in the thinking of a judge called upon to decide h
doubtful case. In addition, the judge is often influenced by the social
end to be served, although this influence has usually been a subconscious
one. However, the philosophy of the common law is, at bottom, pragmatism, and more conscious recognition is being given to the ends to
be served. "The springs of action are disclosed where once they were
concealed. ' '7
Roscoe Pound, perhaps the leading academic expositor of the law
in our time, was even more frankly pragmatic. 8 "Whether working
upon the materials of the tradition with the case-knife or pickaxe of the
beginnings of legal science or with the more complicated instruments of
the modern legal armory," he declared, "judicial activity must be directed consciously or unconsciously to some end." 9 Although Pound
conceived of the ends to be served in broad and general terms, he emphasized that this doctrine requires the jurist to keep in touch with life.
"Wholly abstract considerations do not suffice to justify legal rules
under such a theory."' 1 The law cannot be measured by standards
drawn from within itself. In fact, we are moving away from such
attitudes, and the history of law is a record of continually wider recognition and more efficacious securing of social interest. Not the least of
the problems presented in this century by such an evolution is to discover a'rational mode of advising the court of facts of which it is supposed to take judicial notice.
The viewpoints expressed during the first two decades of this century were vigorous, though moderate and reflective. But the third
decade began with a startling report heard throughout the fields of jurisprudence. In 1930, Jerome Frank, then a practicing lawyer and since
a government administrator and judge, launched what was widely regarded as a broadside attack upon all prevailing conventional legal
7. Id. at 117.
8. PouND, THE
seq. (1921).
9. Id. at 194.

SPIRIT OF

THE

Commo=r LAw, esp. c. VIIL Legal Reason, 193 et

10. Id. at 205. Compare Pound's statement, "Nowhere, indeed, has. the deductive
method broken down so completely as in the attempt to deduce principles upon which
contracts are to be enforced." POUND, AN INTRODUcTION TO THE PHILOSOPHY OF LAW

264-5 (1922).

INDIANA LAW JOURNAL

attitudes." Both lawyers generally and the public, he declared, suffer
from a basic illusion about the law. This is, that the law is or can be
made certain and predictable. The source of this illusion, or myth, is.
the persistence in most adults of an infantile longing or need for a fatherauthority. The law thus becomes a substitute for the attributes of firmness, certainty and ififallibility ascribed in childhood to the father. This
analysis exposes the weakness of formal logic as employed in law. Courts
can 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. The chief use of legal rules and principles is
to enable judges to give formal justifications of the conclusions at which
they otherwise arrive. These formulas are thus devices for concealing
rather than revealing what the law is. At their worst they hamper the
clear thinking of judges, compelling them to put their thoughts into traditional forms, thus impeding the spontaneous running of ideas. At
their best, when properly employed, they enable a judge to check a conclusion otherwise arrived at to see if it can be linked with the generalized
points of view previously held acceptable.
Frank proposes no positive program or formula, rather indicating
that the only hope for a wise administration of the law is somehow to
insure the selection of wise, mature and well-adjusted judges. He has
continued to contribute to legal literature, the main' theme in many of his
contributions being an emphasis on the crucial importance of fact-determination in litigation. This, together with his distrust of legal rules
and principles, finally leads him, in his latest work, to propose a con2
siderable expansion of the area of judicial tiscretion in all lawsuits.'
In one of the numerous discussions engendered by Frank's 1930
contribution, Mortimer Adler and Walter Wheeler Cook, both eminent
academicians, debated the role of legal logic. Adler said that Frank
was attacking a straw man in denouncing logic as a basis of judicial
reasoning. 13 The subject matter of formal logic does not embrace the
psychological phenomenon of thinking, as Frank seems to believe.
Demonstration properly consists in finding grounds for conclusions, and
thus testing them by the availability of adequate grounds. Formal logic
is properly not an instrument of discovery but of demonstration. The
study of law in the empiric observational sense and in the formal academic sense are different subjects, which are related but not identical.
11.

JEROME FRANK, LAW AND THE MODERN MIND

(1930).

12. JEROME FRANK, COURTS ON TRIAL (1949).

Full and frequent citations of

Frank's previous publications will be found in the footnotes of this book. For a critical

review, see Loevinger, The Semantics of Justice, 8 ETC. 34 (1950).

13. Adler, Legal Certainty, 31 COL. L. REv. 91 (1931).

LEGAL LOGIC
Walter Wheeler Cook replies that the disclaimer filed on behalf of
logic ignores the fact that lawyers and logicians have long claimed logic
to be in some manner the science of correct thought. 14 If the formal
academic study of law is truly a purely formal discipline, then it is not
law but simply a generalized branch of mathematics. We shall make
the 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.
But its use is possible only when a high degree of precision has been
attained and the interrelation of different classes are well understood.
The conclusion, clearly implied, is that these conditions not yet having
been reached in the law, deductive logic is not usefully applicable.
During the 1930's several writers, apparently influenced by Frank,
said, with a good deal of charm and biting wit, that the reasoning and
language of the law were merely a facade, covering and concealing the
real working of the legal system from lawyers and layman alike.' 5
Naturally enough there was little interest in attempting to analyze or
formalize this meaningless hocus-pocus of legal ratiocination. During
the last decade, however, there have been some signs of a growing concern with the subject of legal logic together with an inclination to try
to come to grips with its nature and problems.
In an article published in 1942, Patterson draws from some of the
shifts in viewpoints of modern philosophy and logic suggestions for
new views of the place of logic in the law."' To begin with, they dispel
the view that logic can guarantee either that self-evident or a priori
truths 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. Law
should also use the instrumental logic of Mill, Peirce and Dewey, which
denies that decisions by a blind hunch will, in the long run, produce as
good results as those which are preceded by conscious, reflective inquiry,
even though the conclusions are not susceptible of mathematical demonstration. 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 reason14. Cook, Legal Logic, 31 CoL. L. REv. 108 (1931).
15. ARNOLD, THE SYMBOLS OF GOVERNMENT (1935);
16.

TE

FOLLORE OF CA i.TAL-

; RODELL, WOE UNTO You LAwYERs (1939).

Patterson, Logic in te Law, 90 U. oF PA. L. REv. 875 (1942).

iSm (1937)

478

INDIANA LAW JOURNAL

ing 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. It often is used in a manner to conceal an assumption which is
the crux of the argument, and so involves the fallacy of question-begging.
This form of reasoning is easily used against any innovation, and thus
appeals to cautious judges who fear novelty in any form. Argument a
fortiori 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. This is not the case
in the contextual setting of the law, and therefore it is not ordinarily a
fruitful form of discourse in this field. As a whole, Patterson believes,
legal reasoning is more likely to be materially erroneous than formally
fallacious, since lawyers and judges usually reason in a way consistent
with the rules of logic even though they do not know the rules. In the
long run, however, we will get better results if the resources of logic
are utilized in the law.
A few years later Becker pointed out that both the traditional
method 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.1 7 Such an omission implies a judgment as to relevance, which, in turn, must be based upon a moral or
ethical principle or preference. Thus both methods of legal reasoning
involve moral assumptions inherent in their classifications but not explicit in their formulation. Ultimately the questions as to whether or
not the body of past cases permits significant generalizations and whether
or not future judicial decisions are predictable cannot be decided by
argument about philosophical theories, but must depend upon experiment
and sound scholarship. The difficulty with the theories of legal
philosophy 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.
Stone, in a brilliant critical essay, remarks that English courts since
medieval times -have legislated under the pretence of lcgical deduction
from existing legal principles. 8 He lists and gives examples of a num-

OF

17. Becker, Some Problemsof Legal Analysis, 54 YALE LJ. 809 (1945).
18. Stone, Fallaciesof the Logical Form in English Law, c. 33 in INEmRPIRrAnoNs
MODERN LEGAL PHILOsoPHY (1947).

LEGAL LOGIC
ber of legal categories which do not yield any one necessary answer by
their use, but invite and even compel the court to decide cases on the
basis of preference or social considerations. In effect, he says that the
legal categories in common use are either meaningless, multiple or indeterminate in reference, overlapping and duplicitous in reference, or
circular. However, the consideration of precedents does tend to direct
the judicial attention to the conditions of problems and present a rapid
if incomplete review of social contexts. But the failure of judges to,
recognize their own logical freedom may cause them to ignore important
social considerations.
One of the most extensive and elaborate inquiries into legal reasoning is contained in a recent book by Dean Levi of Chicago. 19 Levi takes
his point of departure from Frank's thesis that it is mere pretence to
regard the law as a system of known rules applied by a judge. Legal
rules are never clear enough for unmistakable application; and if it were
necessary that a rule should be this clear before becoming law; then it
would be impossible to secure sufficiently wide community approval of
any rule to enable it to become law. Legal categories are, and must be,
vague20 in order to permit their adaptation to new situations and the
infusion of new ideas. Levi analyzes in detail the development of particular doctrines in three fields: case law, statutory interpretation, and
constitutional construction. He concludes that the pattern of legal reasoning is ,that of inference by example or analogy. However, he states
'that this is a three step process, in which, first, similarity is observed
between the case in hand and a prior case; second, the rule of law inherent in the first case is announced; and third, the rule of law-is made
applicable to the second case.. Th analogies drawn from legal precedents can be expanded to include new subject matter, and thus provide
the flexibility needed in the law. Legal reasoning is unique, with a logic
of 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.
A somewhat similar viewpoint was expressed in the same year by"
an English writer, Dennis Lloyd.2 ' Referring to the comments of
Holmes on the role of logic in the law, Lloyd suggests that logic has
19. LEvi, AN INTRODUCTION TO LEGAL REASONING (1949), first published in 15 U.
oF CHI. L. REv. 501 (1948).
20. Levi himself uses the term "ambiguqus" to indicate the property he considers
necessary to legal categories. However it is obvious that he is referring to the property
of vagueness. See BLACK, LANGUAGE AND PIILOSOPHY C. II (1949).
21. Lloyd, Reason and Logic in the Coonwn Law, 64 L. Q. REv. 468 (1948).

INDIANA LAW JOURNAL

about as much influence in the law as in everyday life-which he says
is almost none. 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. Law is a rational
process in the sense that its judgments are based upon reasoned principles,
whether of expediency, the balance of convenience, moral principles, or
similar considerations. But these are extraneous to the legal rules themselves. The extent to which the courts can apply such considerations is
limited somewhat by the binding nature of precedents, but the process
of reasoning from precedents leaves wide scope for discretion. The
direction of development of the common law has been toward incorporation of the principles of "reasonableness" into both the formal rules of
law and their judicial application.
A highly provocative viewpoint based upon the analogy of field
theory in physics and the operation of judicial logic has recently been
advanced by Felix Cohen. 22 He suggests that as the forces of physical
energy are deflected when passing through an electromagnetic field, so
the lines of judicial reasoning will undergo a shift when they enter a
neighborhood of high value tensions or feelings. Our judgments generally undergo such a shift as will strengthen and reinforce the basic
valuations in any field of strong emotions. For example, in everyday
life we tend to attribute our successes to our own virtues and our failures
to external circumstances. When we view the work of others we are
apt to find that their successes are due to the force of circumstances,
whereas their failures were due to their own faults. Applying field
theory to judicial logic, we can formulate some specific hypotheses: 1.
The more reprehensible the conduct of the defendant, the more. readily
will judges find a causal connection between the conduct of the defendant
and the injury of the plaintiff. 2. The more hateful the personality
of the defendant the more readily will judges find a causal connection
between his conduct and plaintiff's injury. 3. A judgment against a
highly respected citizen has a larger precedent value than a judgment
against a despised person; and conversely, a judgment in favor of a
despised person has a larger precedent value than one for a pillar of
society. 4. A value differential in the attitude of judge and jury towards
a given class will be reflected in differences of judgment as to whether
individuals of the given class are responsible for the wrongs complained
of.
22. Felix S. Cohen, Field Theory and Judicial Logic, 59 YALE L.J. 238 (1950).
Felix S. Cohen is the lawyer son of philosopher Morris P, Cohen.

LEGAL LOGIC
Most recently, Julius Cohen has pointed out that what is said about
judicial reasoning is usually equally applicable to the legislative process. 23
For the realist, policy-making is the common denominator of the judicial
and the legislative process. Certain recent hearings indicate that Congress is not interested in securing evidence on the merits of proposed
legislation, but only in hearing testimonials for the various viewpoints.
By and large the "noise principle" suggested by William James is still
the dominant force in legislative policy-making. While we cannot be as
accurate in social as in physical sciences, yet there is both the need
and the possibility of utilizing much of our scientific knowledge and
objective methodology of investigation on the legislative level.
The writings that are mentioned here are, of course, not all of those
explicitly considering the subject of legal or judicial logic. In addition
to these, there is a body of literature too vast even to be listed within
the compass of one article which, by virtue of concern with one or another problem involving legal reasoning, is at least relevant to this topic.
However, the viewpoints summarized here do fairly indicate the general
contemporary lines of thought in this field.
It is evident that most modern legal thinkers deny that legal reasoning does or can be made to follow the syll6gistic pattern. There is some
disagreement as to whether that pattern has any substantial utility for
the legal process, but fairly general agreement that, in any event, there
must be more conscious attention to the data of social experience than
the traditional approach of the legal process allows.
What is most remarkable in a review of the literature of legal logic
is the almost complete absence of any serious attempt at formal analysis
of legal reasoning. 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. From this viewpoint, there obviously
wasn't very much to be said about formal logic beyond what had been
said many times in the standard textbooks. In the informal sefise, all
legal dialectic was an exercise in legal logic; but the logic itself, as an
intuitive judgment, was not subject to analysis. Therefore, only the
legal rules themselves, and not the form of the argument, were subject
to critical examination. Occasionally the argument was dressed up a
bit by observing that the "form" of reasoning adopted was that of
analogy, or precedent. But this was hardly doing more than giving a
name to the intuitive judgment. It is notable that Levi uses "analogy"
to mean generalizing a rule from a prior case and then bringing a subse23. Julius Cohen, Towards Realism in Jurisprudence, 59 YALI.E

J. 886 (1950).

482

INDIANA LAW JOURNAL

quent case within the rule, whereas Patterson adopts the more generally
sanctioned usage by employing the term to mean reasoning from case
to case by observing similarities without explicit generalization. However Levi, who certainly offers the most thorough attempt to apply his
own theories of legal reasoning, seems to illustrate first the one, then
the other use of the term.
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. Perhaps this is
because it is only within the last half century that the significant part
of this development has taken place, and its influence is just beginning
to extend to other fields. It may also be at least partially due to the
fact that modem logic in all of its recondite ramifications is a most
formidable and difficult discipline. If only those lawyers who were its
thorough masters were qualified to speak, then-so far as this writer
knows-there would be no one to express an opinion. Fortunately it is
not necessary to master all of the subject matter and techniques of
modern logic in order to utilize some of its insights.
II

In any view, logic is inseparable from the use and manipulation of

symbols. The traditional or deductive logic consists of rules for the
arrangement of propositions. These are themselves arrangements of
symbols representing classes and relations between classes. It has long
been 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. This being so, even though, the formal rules permit a number
of combinations of propositions, the actual relations between the classes
represented by the symbols limit the variety of combinations which we
feel free to attempt with any given set of postulates. Conversely, the
'necessity of using conventional language and terms to represent classes
of things limits the number and variety of relations that can be clearly
expressed or manipulated.
These considerations led to the introduction of mathematical or
postulational symbols into logic in place of terms.2 4 This means the
24. Mathematical or "symbolic" logic began with the works of BOOLE, THE MATHEMATICAL ANALYSIS OF LOGIC (1847; republished 1948). The acknowledged masterwork
See
in the field is WHITEHEAD AND RUSSELL, PRINCIPIA MATHEMATICS (1910-13).
TARSIU, INTRODUCTION To LOGIC 19 (1941), or any standard work on "symbolic logic."

LEGAL LOGIC
use in logic, as in mathematics, of symbols that have no specific meaning. Instead of propositions we have propositional functions, and logic
becomes a kind of algebra.2 5 To illustrate, the sentence, "Aristotle is a
man" is a proposition. "Aristotle" is a symbol which is supposed to
represent some specific individual; and "man" is a symbol to represent
a class of things which contains the specific individual represented by
the symbol "Aristotle". On the other hand, if we say "A is m" that is
a propositional function. "A" and "m" are both variables that can
mean whatever we wish them to mean, within the limits of rational
reference. The propositional function can mean "Aristotle is a man"
or "A horse is a quadruped".
The use of algebraic, or as it is usually called "symbolic", logic permitted a vastly wider range of permutations and combinations to be
attempted than was possible with syllogistic logic, offered a much more
precise method of formulation and arrangemfient, and thus enabled logic
to deal with considerably more complex problems than had ever before
been possible. Among other things, this has disclosed to scholars that
four of the nineteen classical Aristotelian syllogisms are invalid .and
that the reminder can be reduced to five theorems, and has enabled logicians to solve complex and difficult problems in engineering, business
and certain fields of law that were apparently insoluble by any other
methods. 26
Concomitantly with the development of what might be termed the
use of meaningless symbols in logic, ther has developed a field of inquiry
into the relations between symbols and symbols and between symbols
and things which constitute the core of meaning itself. This area has
been called "semantics". 2 T Some regard it as a part of the field of logic;
others regard logic as a subdivision of semantics. Having no great
importance, that difference in viewpoint has engendered little controversy. No one doubts that modern logic and semantics are as closely
related as law and politics or war and diplomacy.
25. See

KEYSER, MATHEMATICS AS A CULTURE CLUE

26. Pfeiffer, Symbolic Logic, 183 ScIENTIFIc

3 et seq. (1947).

AmlCAN 22 (1950).

27. A provocative discussion of tie relation between logic and semantics by Bures
and Hayakawa may be found in 9 ETC. 35 (1951). See also note 35 infra. The litera-

ture of semantics itself is too extensive for brief summary. Those interested might
profitably start with the following: Rapoport, What is. Semantics?, 40 AmRICAN ScIENTIST 123 (1952); OGDEN AND RICHARDs,'THE MEANING OF MEANING (8th ed. 1946) ;
Kozy:Bsxi, SCIENCE AND SANITY (3rd ed. 1948); CHASE, THE TYRANNY OF WORDS
(1938); MORRIS, SIGNS, LANGUAGE AND BEHAVIOUR (1946); HAYAKAWA, LANGUAGE
IN THOUGHT AND AcTioN (1949) ; RAPOPORT, SCIENCE AN]) THE GOALS OF MAN (1950).

For an excellent-and unique-discussion of the significance of semantics for law, see

Williams, Langtage and the Law, 61 L.Q. REv. 71, 179, 293, 384 (1945), 62 L.Q. REV.

387 (1946).

INDIANA LAW JOURNAL

484

A third direction of exploration for modern logicians has been into

the foundations of probability theory. The results in this area have, so
far, been somewhat less spectacular than those in the fields of symbolic
logic and semantics. Nevertheless enlightening and useful ideas have
been developed. The vague undifferentiated idea pf probability has been
split into two distinct concepts.2 s The first, corresponding more closely
to the popular usage of the term, can be roughly defined as the rational
degree of expectation (of an event), or as the degree of confirmation of
the logical relation between propositions. This is sometimes known as
the Keynesian view after its most prominent modern exponent.2 9 The
seoond theory views probability as the relative frequency in the long run
of an event, or, by derivation, of the truth of a proposition. This is
the frequency theory, or the von Mises-Reichenbach view. 30 The frequency theory permits the attribution of a numerical value to a probability, which the Keynesian view does not. Both von Mises and Reichenbach, and many others, contend that the Keynesian view of probability
must fundamentally rest upon the frequency concept, but this issue is not
yet determined among philosophers.
% Closely related to probability theory is the field of principles dealing with the measurement and description of groups of related phenomena-usually called "statistics". A vast amount of concrete and
very practical knowledge concerning the force and circumstances of
permissible inductive inferences has been developed in this field. In
particular, knowledge of the nature and theory of sampling has an
almost universal application to the problem of drawing justified infer3
ences from incomplete evidence of the facts. 0a

A fourth related, but distinguishable, aspect of the development

of modern logic has been the contribution of a group concerned with
the criticism and formulation of the methodology Of empirical investigation-popularly, scientific method. Stemming largely from John
Stuart Mill, this group includes an indeterminate number of distinguished thinkers.3 1 The most generalized statement of the view of this
group is that of John Dewey, who holds that logical forms arise within
Carnap, The Two Concepts of Probability, in READINGS IN PHILOSOPHICAL
330 et seq. (Feigl and Sellars ed. 1949).; Weaver, Probability, 183 SCIENTIFIC
AMERICAN 44 (1950).
29. KEYNES, A TREATISE ON PROBABILITY (1921).
30. VON MISES, PROBABILITY, STATISTICS AND TRUTH (1928);- REICHENBACH, ExPERIENCE AND PREDICTION 297 et seq. (1938).
30a. Weaver, Statistics, 186 SCIENTIFIC AMERICAN 60 (1952).
31. See, e.g., MILL, A SYSTEm OF LOGIC (1st ed. 1843; reprinted 1947); PEARSON,
THE GRAMAR OF SCIENCE (1st ed. 1892; reprinted 1943); BmlnMAN, THE LoGIC OF
MODERN PHYSICS (1st ed. 1927; reprinted 1948) ; DmwEY, LOGIC: THE THEORY OF INQuIRY (1938).
28.

ANALYSIS

LEGAL LOGIC
the operation of the process of inquiry, so that logic is concerned with
the control of inquiry in order that it may yield warranted assertions.32
A characteristic of the thinking of this group is a rigorous semantic
discipline, which requires that every concept justify itself in the process
of inquiry. An example of the application of this procedure is the
demand to know the physical meaning of "space" and "time" which
led Einstein first to the special, then to the general theory of relativity, which resulted in the feat of "splitting the atom", and which
burst upon popular consciousness with the detonation of the atom bomb.3 3
It may be questioned whether the consequences of this application of
modern logic are "practical", but it can hardly be doubted that they are
significant.
The use of a similar approach to the field of legal logic immediately indicates that one of the principal reasons for the relative poverty
of production in the field is the failure either to define the subject
matter or the problem to be examined, or to formulate a frame of
reference for the inquiry.
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 uncritical implicit
assumption that there is such a thing is probably due to the influence
of the Aristotelian view that there are a few basic "laws of thought"
which establish necessary patterns for all valid thinking. While most
modern legal writers realize that other patterns besides the syllogism
are required for a complete logic, the unconscious assumption seems to
persist that there is a "kind" of thinking which can be ascribed to each
intellectual activity.
But, as Northrop points out, the scientific method, even in the
natural sciences, varies from one stage of inquiry to another.3 4 It is
meaningless to talk about method without specifying the character of the
problem and the stage of inquiry. The method of thinking, or of inquiry, varies from one stage of a problem to another. With particular
reference 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.
32. DEwEY, LOGIC: THE THEORY
33. See PHILIP FRANK, MoDmN
34.

OF IN
iQRYc. 1 (1938).
SCIENCE AND ITS PILOSOPHY 19-20, 297 -(1949).
NORTHROP, THE LOGIC OF THE SCIENCES AND THE HUMANITIES, Preface (1947).

INDIANA LAW JOURNAL

Usually this is relatively easy for a judge who has pleadings presented
to him by lawyers presumably skilled in sifting facts and presenting legal
issues. It is even easier for an appellate court which has the assistance
not only of the lawyers but also of the lower court. However, as every
practising lawyer knows, this is often a vexing problem in dealing with
clients. Many a'man is certain he has been grievously wronged without
having the slightest idea what, if any, the nature of his legal injury
may be. That this matter is not always simple even for appellate courts
is shown by the occasional disagreements on the upper benches as to
what issues the appellate courts should decide on appeal.
(2) Having discovered the issues or points of conflict, the judge
must decide on the area of relevance. This does not mean that a decision must be made in advance on all points of evidence, such as the
possibility of collateral impeachment of witnesses. It does mean that
the 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. Without such a mental outline a lawyer could
not tell whether his client had a case worth suing on and a judge could
not tell whether pleadings stated a case appropriate for relief or a cause
of action, or whether a plaintiff had made a prima "facie case.' Further,
this outline must be exclusive as well as inclusive. A lawyer cannot
list all of his client's grudges against an adversary in the complaint,
but only such as relate to the issues. Likewise, a judge will not permit
the reception of evidence that does not bear upon what he has decided to
be an issue in the case.
(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. Some issues may be easily determined by reference to a statute, once the facts are decided. In other cases,
the judge may rely upon the precedent of former decisions. Other standards that may be used are the custom and tradition of the community,
generally accepted ideas of social welfare, justice and community mores,
and even the judge's own private ideas of morals, ethics or justice. It
was essentially this problem that Cardozo was discussing in his analysis
of the judicial process.

LEGAL LOGIC
(5) Having selected a standard of decision, the judge must still
analyze the controlling considerations implicit in the standard selected.
With rare exceptions, self-evident principles are not to be gleaned from
statutes, cases, traditions, ideas of social welfare, or even personal codes
of justice. Statutes must be construed, cases must be gathered and
analyzed, traditions and mores must be interpreted. Conc'eivably this
might be done in terms so narrow as to fit only the case in hand. But the
law strives to generalize. Thus the controlling principle distilled from
whatever standard is resorted to will ordinarily be stated in 'terms at
least slightly broader than the immediate case.
(6) Finally, the judge will reach the actual decision of the case
by applying the principle thus arrived at to the facts thus determined.
Where a single individual has taken each of the preceding steps, the
final step of applying the principle selected for the case to the facts may be
nearly automatic. But here again the dissents and reversals from our
appellate courts warn that even where there is substantial agreement on
issues, facts and applicable principles, there is still room for occasional
disagreement on the final result. If the amount of damages or the provisions of a remedial decree are involved, this may even be the most
difficult and doubtful step in the entire process.
Since these steps are merely' stages in a single inquiry, they are, of
course, not discrete or mutually exclusive. Even before determining the
issues, it is obviously necessary to learn some of the facts. However, it
will avoid much confusion to remember that what is true of legal reasoning at one stage of the legal process is not necessarily true at another.
Thus it becomes useful to have a division into stages. The analysis suggested seems to be a convenient and useful one, but it is assuredly not
intimated that it is the only possible one, or even the best or most useful
one.
Before attempting to examine the patterns of legal reasoning at the
several stages of the legal process, the semantic principles of modern
logic require that the frame of reference to be used should be specified.
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. Decisions of courts and opinions of lawyers are almost always accompanied
by or based upon some kind of ostensible reasoning. They assume certain
facts and employ some legal rules or principles to relate these facts to
the conclusion reached. An examination of the opinions of courts and

INDIANA LAW JOURNAL

the attempt to relate and systematize the principles stated is an example
of analysis at the ostensible level. What lawyers call "research" is nearly
always conducted within this frame of reference. The questions which
can be asked within this frame of reference are: What facts are assumed
in reaching the decision? and What reasoning or rationale is employed
to relate these facts to the conclusion reached?
(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. In the modern view, logic itself constitutes a different
frame of reference than ordinary language. Logic, in the modern lexicon
is a meta-language. 35 To put it simply, language is a system of terms
that refer to objects or things, whereas logic is a system of terms that
refer to language; or, as Carnap puts it, logic is the syntax of language.3 6
The necessity for so regarding it arises from the fact that an inquiry
into the validity of reasoning demands the use of some tools other than
the reasoning itself. Reasoning, of whatever order, cannot validate
itself. 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. A simple example is this:
Every statement within these lines is false.
If that proposition is true, then, since the proposition is itself a statement
within the lines, it is false. But, if the proposition is false, then, since it
refers to itself it must be true. No matter how regarded, the proposition
implies its own contradictory. The solution of the paradox is in the
principle that a class cannot be a member of itself. Statements about
things 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 may
refer 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. A comparison of the ostensible reasoning
35. The definitive work on this subject is GARxNA', LOGICAL SYNTAX OF LANGUAGE
(Eng. ed., 1937). See also REICHENBAcH, THE RISE OF SCIENTIFIC PHILOSOPHY C. 13,
Modern Logic, esp. p. 226 et seq. (1951); Morns, SIGNS, LANGUAGE AND BEHAVIOR
181 et seq. (1946); TARSKI, INTRODUCTION To LOGIC 58 et seq. (1941).
36. CARNAP, LOGICAL SYNTAX- OF LANGUAGE (1937).

LEGAL LOGIC
of other cases is not a logical analysis of the reasoning of one case. So
long 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 inquiry
extends beyond the language used to its necessary meaning and implications or to the form of reasoning used, then it is adopting the logical
frame of reference. The questions that can be asked within this frame
of reference are: What are the meanings of the terms and contexts
used? What are the implications of the principles and conclusions
adopted? What is the form of the reasoning employed? In the circumstances, is this valid reasoning?
(C) To be clearly distinguished from the ostensible and the logical
viewpoints is the psychological inquiry.3 7 Neither the ostensible nor the
logical foundations of a decision are necessarily the reason for its adoption. This is most obvious in law office practice, where the lawyer
frequently is called upon either to justify some action already taken or
to invent a rationale that will permit his client to take some desired action.
Although it is seldom the avowed judicial procedure, it is the contention
of the "realists" that judicial conclusions are usually arrived at for
psychological reasons unrelated to the ostensible or logical process of
justification which subsequently appears in the opinion. 38 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.
Although less dramatic, a judge's prejudices, attitudes, experience and
temperament all will influence him, perhaps decisively, in his judicial
conduct. These influences may or may not be expressed in the ostensible
reasoning given by the judge. They may or may not be revealed by
logical analysis. Ultimately the determination of the psychological basis
for judicial action can be established only by empirical investigation. An
examination of cases can be, at best, only suggestive of psychological
conclusions. The questions which are within the psychological frame of
reference are: What are the motives that have impelled a judge to reach
the conclusion, adopt the reasoning and assume the facts that he has
accepted in any given situation? Such an inquiry can be generalized to
37. See RUSSELL, AN INQUIRY

INTO MEANING AND TRUTH

106, 164, 238 et seq.

(1940).
38. JERomE FRANxx, LAW AND THE MODERN MIND (1930); What Courts Do in
Fact, 26 ILL. L. RFv. 658 (1931); Say It With Music, 61 HA v. L. REv. 921 (1948);
COURTS ON TRIAL (1949); Hutcheson, The Judgment Intuitive: The Function of the
"Hunch" in Judicial Decisions, 14 CORNELL L.Q. 274 (1929); Lawyer's Law and the
Little, Small Dice, 7 TULAN L. REV. 1 (1932) ; ARNOLD, THE SyMBoLs OF GovERNMENT

(1935).

INDIANA LAW JOURNAL

seek to discover the influences which usually move a particular judge,
or even, what influences are predominate in the action of a group of
judges. However, no inquiry confined to the usual legal sources can be
more than suggestive of an answer. The psychological level of iAquiry
is concerned not with apparent or formal reasons or the implications of
decisions, but with actual influences that are operative upon specific real
individuals. These constitute objective facts the nature of which can
be known with assurance only on the basis of scientific investigation.
(D) Related to each of the foregoing viewpoints, but constituting
an independent frame of reference for the investigation of the legal
process is the empirical inquiry. As has been stated, the questions arising
within the psychological frame of reference can be definitely answered
only by empirical inquiry. However, the empirical frame of reference
is not confined to investigating the psychological foundations of legal
and judicial opinions. It is legitimate to ask whether or not the facts
assumed by a court in its decision are consistent with the facts to be ascertained by-an objective scientific investigation, and whether the implications to be logically derived from a decision are compatible with
observable facts relating to the subject matter of the propositions thus
derived. Such questions as these are not to be answered by a formal
analysis of legal material, but require scientific investigation by the
techniques independently established in the natural and social sciences.
By distinguishing the various aspects of the legal process and the
viewpoints from which they may be regarded, we can reconcile many
of the apparent conflicts in the earlier writings on this topic. Holmes
and those following his lead are quite right in asserting that the logical
form does not compel any particular decision in a specific legal controversy. They are probably correct in asserting that the determinants
of judicial action are attitudes, preconceived ideas regarding social advantage, prejudices and similar influences, although this does not necessarily follow from a demonstration of the fallacy of logical form. On
the other hand, the traditionalists are justified in demanding that regardless of motivation legal decisions should be capable of logical formulation, justification and analysis. However, they err in assuming that the
ability to put the ostensible justification for legal action in a logically
valid form supports any inference as to the psychological foundation for
the action.
With the exception of Jerome Frank, who has attempted to emphasize the influence of the selection of facts in determining the legal
result,39 most of the writers on this subject have tended to consider
39. See references cited for Jerome Frank in preceding note.

LEGAL LOGIC

491

only the factors involved in selecting, analyzing and applying a standard

of decision to a disputed case. Some, like Cardozo, 40 have emphasized
the factors involved in the selection of an appropriate standard of decision. Others, like Stone,41 have emphasized the stages of application of
the controlling principles to the case in hand. Levi handles his material
almost wholly within the framework of ostensible or conventional legal
reasoning.42 Stone43 and Patterson 4" adopt and maintain the logical
viewpoint rather consistently. Jerome Frank4 5 and Felix Cohen4 6 base
much of their analysis upon material derived from the psychological
49
4s
4
frame of reference. Morris Cohen, ' Roscoe Pound and Julius Cohen
tend to emphasize the empirical viewpoint as the foundation for their
views.
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. This does not preclude the exchange of data between viewpoints, but it does require that
data be cast in concepts of the frame of reference within which they
are to be used.
Nearly all legal writers to the present time, apparently misled either
by the limited outlook of traditional scholastic logic or by remarks such
40. See note 6 supra.
41. See note 18 supra.
42. See note 19 supra. It should be noted that since the present article was written
Levi has expressed ideas similar to some of those suggested here. He recently said:
"Legal research cannot be fully effective if it is confined to the reported decisions of
courts of last resort. What lawyer has not had the experience of reading a decision
in a case he has tried, even a favorable decision, with the uneasy realization that the
facts recited in the opinion, or on which the reasoning is based, are interesting-but
are significantly different from what actually occurred ....

Because the law is not

an exact science we talk and act sometimes as though it were merely an art. We
talk as though we did not believe in knowledge as distinguished from skill. But it is
knowledge, integrity and perspective which distinguish lawyers from fixers. They make
law valuable in society and essential to its continuity. Knowledge implies knowing the
truth and truth is correspondence between our idea of a thing and the reality of the
thing itself. Truth in the law is something more than a set of self-consistent principles
(although that is 'important too). Truth in the law requires that the ideas of law
coincide with the realities of the society which it governs. Thus research in the law
must encompass both the ideas and the facts." Levi, The GraduateLegal Clinic: Restoring Lawyers' Research Responsibilities, 38 A.B.A.J. 189 (1952). It appears that Levi is
here indicating the need for legal research on the empirical level. However he does
not consider what significance this may have for legal reasoning.
43. See note 18 supra.
44. See note 16 supra.
45. See notes 12 and 38 supra.
46. See note 23 supra.
47. See note 5 supra.
48. See notes 8, 9 and 10 supra.
49. See note 23 supra.

INDIANA LAW JOURNAL

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.
III

Every legal controversy is, of course, decided on certain facts. The

facts may be agreed upon, assumed or. inferred by the court from evidence. 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. In other words, the facts that may be
considered by a court in determining a given controversy are limited to
those which are sufficient to bring that controversy within one or another established legal category. Thus the common law conventionally
establishes an area of relevance for all matters to be decided by it whichalmost inevitably excludes evidence relating to considerations of the kind
ordinarily invoked by the phrase "social significance" (although as
pointed out later, this does not prevent such considerations from exercising a covert, but often potent influence).
As a result, 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.
Modern codes, including the rules of civil procedure applicable in
federal courts, generally provide that the pleading of a party seeking the
aid of a court shall contain merely a short and plain statement of the
claim showing that the party is entitled to relief, together with a demand
for the relief to which he deems himself entitled. 50 Theoretically the
technical requirements of the old common law cause of action have been
abolished. 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. In the initial stage of the inquiry when courts are called upon
to determine whether or not there is a situation presenting issues that
can properly be litigated, the form of legal reasoning is almost always
by analogy.
From the viewpoint, of the lawyer this is even more clear. It is
common practice for lawyers to draft pleadings from the models presented by pleadings in former cases that have been before the courts. It
50. Fmn. R. Civ. P. 8 (a).

LEGAL LOGIC
is 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. Usually very little generalization is involved and the attempt is
made to compare situation with situation point by point on the basis of
specific facts. The initial stage of the legal process therefore tends to
involve reasoning from particular to particular without explicit generalization, which in the strict sense is the essence of reasoning by analogy. 1
In the second stage of the process where the problem is to define
the area of relevance the analogy is usually discarded. It is conceded,
even in the view of the common law, that all cases have certain distinguishing individual characteristics and it is the pride of the common law
that these be considered. -Accordingly, the area of relevance within
which the parties may offer evidence is ordinarily established by taking
the bare outline of the factual situation and fitting it into some established
legal category. The process is one of classification which is similar to
the process of diagnosis in the medical field. This fits into the pattern
of deductive logic.
The significance of the classification at this stage, however, does
not arise from the fact that the controversy is subsumed under a particular category, but rather from the nature of the scheme of classification that is used. If the categories comprising the scheme used are
broad and general then there is less change of error or injustice in
classifying a specific case and there is also a wider area of relevance
permitted as a result of any classification. The narrower the categories,
the more detailed and discriminating will the classification be, and the
greater the chance of error. 52 The logic of the biological and physical
sciences indicates that there is no point in attempting a discrimination
which is finer than the problem requires or than the available techniques
will usefully permit. It is easy enough to devise a detailed scheme of
classes involving subdivisions for nearly every conceivable variant of a
broader category. But unless there are significant differences between the
subdivisions and unless there are reliable means of discriminating cases
with respect to all of the subdivisions, then the result of such a complex
classification is not increased accuracy but increased possibility of error
and confusion. 53 Vagueness in categorization with consequent wide
51. KEYNES, A TREATisE
LoGic, B. III, c. 20 (1843).

ox PROmBiLiTy

222 et seq. (1921); Max, A

52. King, The Meaning of MedicalDiagnwsis, 8ETC. 202 (1951).

53. Ibid. See also Furth, The Limits of Measuremont, 183 ScmNTIFIC
48 (1950).

SYSTEM OF

AMUCAN

494

INDIANA LAW JOURNAL

and indefinite areas of relevance may therefore be a virtue at this stage

of the legal process.
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. Normally, there are no published reports
of the proceedings of trial courts, and the published opinions of appellate tribunals ordinarily contain only brief summary references to the
trial process itself. While the published opinions of the appellate courts
are equally avalable to all, the prevailing procedures in the trial courts
are, 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 from
the universities rather than from the law offices of the country, the
majority 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. Of all the cases filed in the federal courts only about one-fifth
ever come to irial. Over two-thirds of the total cases filed are disposed
of by consent of both parties as to judgment or dismissal, and about
one-sixth are disposed of either by default or by judgment on the pleadings. Of the cases tried, only about one-fourth are eventually appealed. 4
Although there is no convenient statistical source of corresponding data
for the state courts, there can be no doubt that the proportion of cases
disposed of without appeal is even larger. Certainly the overwhelming
bulk of the, work. of the courts is done below the appellate level, and no
consideration of the legal process which leaves this fact out of account
can be completely satisfactory. It is probably in the process of sifting,
selecting and weighing evidence that our court procedure is most inadequate. At the same time, it is in this field that modern logic and scientific
method have made the gr~atest advances, and there is therefore the
greatest possibility of borrowing and using tools from other fields.
It is a peculiarity of legal thinking that although it ostensibly
eschews any quantitative standards, nevertheless it attempts to establish
varying standards of proof which can have meaning only as they are
quantitatively related to one another. In an ordinary civil proceeding
the law requires that the moving party establish the facts necessary
to his case by a "fair preponderance of the evidence". There are some
54.

STATISTIcAL AasTRAct OF

THE

UNrE STATES, 1950, 140-142. It is not possible

to make precise calculations of the disposition of all cases filed as the categories reported
for the various years and courts do not correspond exactly.

LEGAL LOGIC
situations, however, such as proof of undue influence, where it is
required that the plaintiff establish his case by something more than a
"fair preponderance of the evidence", a balance sometimes characterized
by courts as "clear and convincing evidence". In criminal cases, as is
well known, it is required that the facts be established by evidence
"beyond a reasonable doubt". Obviously, the law has here accepted
some kind of a logic of probability. However, the law has not utilized
the techniques or terminology of probability logic.
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 might
be somewhat misleading inasmuch as no quantitative measure of evidence
is yet available. Nevertheless quantitative expression would have at
least one great virtue, in that language used would at least have some
common meaning from case to case and time to time. The phrases'now
used by courts to express the degree of probability which must be
established in various categories of cases are so various and vague that
it is by no means clear that courts using the same phrase mean the same
thing. Further, it is not at all sure that one court actually means different things when it uses different phrases. While there appears to be
a real difference between a "fair preponderance of the evidence" and
"clear and convincing proof",, there is no obvious indication that there
is a similar differentiation between the latter phrase and "proof beyond
a reasonable doubt". At least some of this confusion might be avoided
if courts were to adopt a terminology of 'probability logic. The conventional mode of representation calls for the use of 0 to indicate that a
proposition is untrue or impossible, the use of 1.0 to indicate that a
proposition is true or certain, and the use of intervening values to indicate the relative probability (or frequency) of its being true. On such
a 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 evidence
might be set at a value of .60 or .70 depending upon the viewpoint of
the court, and "proof beyond a reasonable doubt" might be set at a
value of .90. Of course, these numerical equivalents would be of
relatively little assistance in weighing the evidence in any particular
case. However, they would be of very great assistance in comparing
the views of different courts as to the degree of proof required in
various types of cases.
Another advantage of attempting to specify and quantify the
concept of the burden of proof is that it might lead courts to tecognize

INDIANA LAW JOURNAL

distinctions which should be made and often are made in practice, but
which are not yet recognized in legal theory. In order to convict a man
of a crime for which he may be fined $10.00 or sentenced to 10 days
imprisonment, it is theoretically necessary to establish his offense by the
same degree of proof as is required to convict for a crime which may
call for life imprisonment or electrocution. In practice, as judges and
lawyers well know, juries are more difficult to convince in direct proportion to the severity of the possible punishment. Nevertheless, the law
continues to talk and act as though it were appropriate to require the
same degree of proof for a minor as for a major offense. If courts
began to quantify their concepts it might become apparent that no
greater degree of proof should be required for conviction on some minor
offense than might be required in some important civil matter. On the
other hand, the courts might well recognize that a much higher degree
of proof should appropriately be required for conviction on a major
charge.
The multitude of logical problems involved in the investigation of
facts and the weighing of evidence is too great to permit detailed consideration here. However, since it is precisely in the development of
empirical techniques of investigation that modern science has had its
greatest, triumphs, the relevance and significance of these techniques to
substantially identical problems in the law should be apparent. The very
least 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. Nearly every
trial which involves issues of fact more complicated than simple questions of personal identification necessarily involves problems of sampling.
Most experienced trial judges have developed some rough notions of
appropriate evidentiary requirements in such cases. However, explicit
and detailed formulation of the principles of sampling occurs within
the ambit of statistical theory and modern logic, but has not yet been
generally recognized in legal thinking.
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 from
the logic of probability and induction would require the production of
evidence appropriate to the proposition being asserted. This would

LEGAL LOGIC
have the practical advantage of assisting lawyers and judges to see
what evidence should be offered or received to constitute a satisfactory
logical support for a given proposition.
A logical analysis of the rules of evidence also indicates that nearly
all of them conceal assumptions as to the merits of the situations to
which they are applicable. For example, in suits arising out of contract,
no evidence as to the desirability or fairness of the bargain involved
is normally permitted. Also, if the contract is embodied in writing,
evidence as to the understanding of the parties as expressed verbally
prior to the writing is excluded. It may very well be that both of these
rules are desirable or necessary ones. However, it should be clearly
recognized that each is based upon an assumption that it is more important to maintain and enforce contracts as written or agreed upon
than it is to ascertain the real intention of the parties or the fairness
of the transaction. Significant value judgments are thus concealed by
these ostensible rules of evidence.
In such a field as negligence, where the rules of evidence ordinarily exclude evidence tending to show similar acts by the one accused
of negligence, the rules conceal an assumption as to certain facts of
human experience which is probably inconsistent with the best scientific
findings on the subject. The evidentiary rule of exclusion is presumably based upon the assumption that evidence of other similar negligent
acts is either of no probative value or of such little probative value as
not to be worth the time' of the court. However, this is in sharp conflict
with the findings of modern psychology that certain individuals are
"accident prone" and have a disproportionate number of accidents as a
result of a predisposition to the kind of conduct which results in accidents, and that some individuals may even subconsciously desire to
produce what they and others will call "accidents". 55 One of the tasks
of legal logic is to expose such questionable assumptions, now concealed
by the rules of evidence, and to require that their validity be determined
by a check against the best available actual evidence.
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. The function of the rules of interpretation is to
exclude inquiry into the actual psychological intention of the draftsman
and into the circumstances in which the writing was drafted.5 6 This is
not to say that the rules may not be practically necessary or socially
55. SARGENT, BASIC TEACHINGS OF THE GREAT PSYCHOLOGISTS 298, 309 (1945);
FREt, A GENERAL INTRODUCTION TO PSYCHoANALYSIS, lectures 2, 3 and 4 (1920).
56. Morris 1. Cohen, The Process of Judicial Legislation, in LAw AND THE SOCIAL
ORDER 122 et seq. (1933).

INDIANA LAW JOURNAL

justifiable. However, if so, the rules should be equally justifiable if
formulated so that their ostensible statement is reasonably related to
their logical function.
It is one of 'the curious paradoxes of legal reasoning that the
courts which will refuse to accept any hearsay testimony (with a few
exceptions) relating to the case before them, will usually refuse to accept
anything but hearsay testimony relating to other cases that may be used
as precedent. When a case is cited as a precedent, the facts will almost
invariably be assumed to be as stated in the opinion, although it must
be perfectly clear that the statement of facts in the opinion is at best
hearsay, and sometimes second or third hand hearsay. Perhaps this
attitude is justified on the grounds of practical policy but it at least suggests that the judicial abhorrence of hearsay with respect to the facts of a
case on trial does not flow from the logical requirements of proof, but
from accidental judicial traditions.
The stage of the legal process which receives the greatest amount
of attention both from the courts and from writers on various aspects
of legal procedure and philosophy is that concerned with the selection
of the standard of decision. It is a perennially intriguing subject to
writers to note the sources from which the judges seek to learn the
principles applicable to particular situations. There is also an impression among many lawyers and judges that this stage of the process is
peculiarly the judicial function, and that it is in this stage of the
process that the major work of the courts is performed. It is probably
because this stage of the legal process has received disproportionate
attention that work on legal reasoning has been so relatively barren.
So far as selecting the standard to be used for determination of a
specific controversy is concerned the intellectual processes involved are
not likely to be confined to any particular form. 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 say
that 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 until
after the court has determined to resort to precedent and has selected
a specific analogue. The problem for consideration at this stage of the
legal process is to ascertain why and how a particular standard of
decision, such as precedent or analogy, is selected. An analysis which
proceeds no further than to point out that the form of ostensible
rationalization usually employed by courts is that of analogy is neither
profound nor informative. The failure to carry the analysis further
probably arises from a failure to recognize the frame of reference within

LEGAL LOGIC

499

which the analysis is made. To carry the analysis beyond the ostensible
level to the logical level makes it apparent that casting the ostensible
rationalization of a decision in the form of analogy does not necessarily
endow that rationalization with any particular logical validity. To view
the ostensible form from the psychological viewpoint makes clear that
the form of rationalization adopted is almost completely irrelevant to a
determination of the controlling influences in the selection of that form
of rationalization.
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.
In a survey of the whole field of reported decisions, it should not
be difficult to select enough examples to demonstrate, at least for the
purposes of a particular argument, that the preferred ground of judicial
decision is the analogue of precedent, the principles inherent in the body
of the common law, the prevailing ideas and ethics of the community,
or the private codes and standards of the judge. There can be little
doubt that one or more of these, as well as of other standards, have
been and are being applied by courts in more than a few cases.
However, so far as the selection of the standard of decision is
crucial in any given case, it probably is because that case involves a
matter peripheral to established concepts. Certainly the vast majority
of 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. The cases arising
in areas of social conflict are likely, on the other hand, to invoke an
appeal to conflicting standards of decision. The cases which are crucial,
both for the operation and for the study of the legal process at this
stage, are those in which there is no congruence between the vectors of
precedent, the attitudes of the judge and the actual or asserted attitudes
of the community. Any fair sampling of the latter group of cases
indicates that the force of precedent, whether exerted in the form of
principle or analogy, is comparatively impotent and unimportant when
opposed to either public or private concepts of policy. This can be
demonstrated without resorting to extrinsic theory by an examination

INDIANA LAW JOURNAL

of the conduct of the courts when confronted with similar or identical
issues at different times and in different circumstances.
One of the earliest and most dramatic of the Supreme Court's
self-reversals occurred in the "legal tender cases", just after the Civil
War. On February 7, 1870 the Supreme Court held, in a 5 to 3
decision, that an act of Congress making United States greenback notes
legal tender for all debts was unconstitutional as beyond the powers
granted to Congress. 57 Slightly more than a year later the court completely reversed itself and held, in a 5 to 4 decision, that the congressional enactment was constitutional. 58 In this case at least, the opinions
of the Court leave no doubt as to the reason for the change in its
opinion. Chief Justice Chase, dissenting in the second case, said:
A majority of the court, 5 to 4, in the opinion which has
just been read, reverses the judgment rendered by the former
majority of 5 to 3 . . . This reversal, unprecedented in the
history of the court, has been produced by no change in the
opinions of those who concurred in the former judgment
. . The court was then full, but the vacancy caused by the
resignation of Mr. Justice Grier having been subsequently
filled and an additional justice having been appointed under
the act increasing the number of judges to nine . . . the then
majority find themselves in a minority of the court, as now
constituted, upon the question. 59
Justice Field, also dissenting, remarked simply:
a reI shall not comment upon the causes which have led to
60
versal of that judgment. They are patent to everyone.
As Justice Field suggested, the reasons for the reversal of the
Court's judgment in this situation are patent. Regardless of the ostensible rationalization employed by either side in their arguments, the
change in the Court's decision was caused by a change in the personnel
of the Court. Since the period of time between the two decisions,
viewed in the light of our knowledge of history, is not sufficient to
indicate a change in circumstances relating to this problem, it becomes
apparent that the standards actually employed in reaching the two
decisions involved were primarily the personal notions of policy of
the judges.
57.
58.
59.
60.

Hepburn v. Griswold, 8 Wall. 603 (U.S. 1870).

Knox v. Lee, 12 Wall. 457 (U.S. 1871).
Id. at 572.
Id. at 634.

LEGAL LOGIC
Probably in no field has the position of the courts over the years
changed more radically than in the area affecting the rights of labor.
In 1908 the Supreme Court took the position that a law outlawing the
"yellow dog contract" for interstate carriers was unconstitutional as a
deprivation of liberty and property without due process. 61 The Court
could find no connection between the conduct of interstate commerce
and the union membership of railway employees. In 1915 the Court,
upon similar reasoning, invalidated a state act outlawing the yellow dog
contract.0 2 However, a decade and a half later the Court decided that
the Railway Labor Act was constitutional even though it prohibited
interference, influence or coercion by the employer with respect to
the union organization of his employees, and, in the case before the
Court, involved an order of contempt prescribing punishment for failure
3
to reinstate employees who had been discharged for union activity.
The Court remarked, apparently in all seriousness, that the earlier case
on the subject was inapplicable since the Railway Labor Act did not
interfere in any way with the normal exercise of the employer's right
to discharge employees. In 1937 the Court affirmed its position with
respect to the Railway Labor Act, and took such a completely altered
view of the relation between commerce and union membership that it
found constitutional the National Labor Relations Act which applied a
similar prohibition against discrimination or discharge for union activity
to all industry "affecting commerce." 64
The attempt to regulate the wages and hours of labor shows a
similar shift in the viewpoints of the judges. In 1898 the Court upheld
a statute of Utah limiting the employment of workmen in underground
mines to 8 hours a day as a valid exercise of the police power. In
upholding the validity of this statute, the Court remarked that it "has
not 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,
and, particularly to the new relations between employers and employees,
as they arise." 65 During the succeeding decade the progressive science
of the law somehow managed to draw a distinction between a limitation
of work to eight hours a day in mines and a limitation of work to ten
hours a day in bakeries. A statute attempting to impose the latter rule
61. Adair v. United States, 208 U.S. 161 (1908).
62. Coppage v. Kansas, 236 U.S. 1 (1915).
63. Texas & N.O.R.R. v. Brotherhood Ry. & S.S. Clerks, 281 U.S. 548 (1930).
64. Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937); NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); NLRB v. Fruehauf Trailer Co., 301
U.S. 49 (1937); NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937);
Washington, Virginia & Maryland Coach Co. v. NLRB, 301 U.S. 142 (1937).

65. Holden v. Hardy, 169 U.S. 366 (1898).

INDIANA LAW JOURNAL

was held unconstitutional in 1905 as an interference with the freedom
of contract guaranteed by the 14th Amendment. The Court avowed,
"This is not a question of substituting the judgment of the court for that
of the legislature," but it is quite simply a question of whether or not
the legislature has exceeded its power in enacting the statutory limitation
upon hours of employment in bakeries. 66 The Court had no doubt that
the constitution precluded such an exercise of legislative power. Three
years later, in 1908, in the famous case of Mudler v. Oregon, the Court
held that a statute limiting the hours of employment of women in laundries to ten hours a day was constitutional. 67 The Court said that it
did not in any way question the 1905 decision relating to the limitation
of hours of work in bakeries but believed that such protection as afforded
by the statute in this case was justifiable because of the weaker physical
structure of women.
In 1917 the Court upheld a state law limiting employment in any
mill, factory or manufacturing establishment to ten hours a day without
mentioning its 1905 decision and regardless of any supposed difference
in physical stamina between the sexes.6" The next year the Court held
that regardless of what might be done to safeguard the welfare of adult
employees in manufacturing establishments, Congress was not justified
in attempting to prohibit the interstate shipment of goods manufactured
by child labor. 69 Four years later the Court affirmed the same position
by holding that Congress could not achieve its objective of inhibiting
the exploitation of child labor under the taxing power any more than
70
under the power to regulate commerce.
At about the same time, the Court was making clear its opinion
that although it might be proper to protect women by limiting their
hours of labor, it was not proper to attempt to protect them by establishing minimum wages. 71 This ruling was given in a case arising in the
District of Columbia so that there was no question as to the extent of
the Congressional commerce or taxing powers. The Court squarely
held that it was an unconstitutional deprivation of liberty and property
to establish minimum wages for women by law. The Court quoted
extensively from its 1905 decision casting out the limitation of hours
66. Lochner v. New York, 198 U.S. 45 (1905).
67. Muller v. Oregon, 208 U.S. 412 (1908), followed in Riley v. Massachusetts,
232 U.S. 671 (1914); Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin,
236 U.S. 385 (1915) ; Radice v. New York, 264 U.S. 292 (1924).
68. Bunting v. Oregon, 243 U.S. 426 (1917).
69. Hammer v. Dagenhart, 247 U.S. 251 (1918).
70. Child Labor Tax Case (Bailey v. Drexel Furniture Co.), 259 U.S. 20 (1922).
71. Adkins v. Children's Hospital, 261 U.S. 525 (1923), followed in Murphy v.
Sardell, 269 U.S. 530 (1925); Donham v. West-Nelson Mfg. Co., 273 U.S. 657 (1927).

LEGAL LOGIC
of work in bakeries. Justice Holmes, in a characteristic dissent, said
that he thought that case should be allowed "a deserved repose." Thirteen
years later, in 1936, the Court invalidated a statute of New York giving
an administrative board the power to fix minimum wage rates for women
on the grounds that such a law was unconstitutional under the 14th
Amendment, just as the Congressional fixing of minimum wage rates for
women was unconstitutional under the 5th Amendment. 7 2 Four judges
dissented. One year later, however, the balance of opinion in the Supreme
Court had shifted and by another 5 to 4 decision the 1923 case was overruled and a state statute authorizing the fixing of minimum wages for
women and minors was held constitutional. 3 In 1941 the same viewpoint was applied to the federal wage-hour law prohibiting the interstate
movement of goods produced by employees whose wages and hours of
employment did not meet prescribed standards.7 4 With this decision
the Court swept away all constitutional inhibitions against legislative
action to protect men, women or children by establishing maximum hours
or minimum terms of employment.
A similar shift in viewpoint is to be observed in the attitude of the
Court toward the application of the antitrust laws to labor. In 1921
the Court held that despite the recently passed Clayton Act, labor unions
were not exempt from the operations of the antitrust laws and the
secondary boycott in aid of a strike might be enjoined.75 In the same
year the Court held that a state statute which attempted to deny the
right to injunctive relief to an employer involved in a labor dispute was
unconstitutional as a deprivation of property without due process contrary to the 14th Amendment. 76 However, twenty years later in 1941
the Supreme Court held in effect that labor unions are, when acting
alone, completely exempt from operations of the antitrust laws and
that a secondary boycott is not a violation of the Clayton Act.7 7 Interestingly enough, the Court said that its decision was influenced by the
policy expressed in the Norris La-Guardia Act which is a federal statute
that does deny the right to injunctive relief to an employer involved
1
in a labor dispute.

The evolution of the Court's attitude toward the commerce power

of Congress is well known. Nevertheless, it is still interesting to con72.
73.
74.
75.
76.

Morehead v. New York, 298 U.S. 587 (1936).

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
United States v. Darby, 312 U.S. 100 (1941).
Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921).
Truax v. Corrigan, 257 U.S. 312 (1921).

77. United States v. Hutcheson, 312 U.S. 219 (1941); also see
LAw OF

FREE ENTERu'isE 80 et seq. (1949).

78. 47 SrAT. 70 (1932), 29 U.S.C. 101 et seq. (1946).

LOEVINGER,

THE

INDIANA LAW JOURNAL

trast cases decided in different periods involving closely analogous situations. In 1895, the Supreme Court held that a combination which had
acquired control of 98% of all of the sugar refined in the United States
was not subject to the Sherman Act since manufacturing was not commerce even though the products might be intended for interstate shipment. 79 Half a century later, in 1948, the Court held that the Sherman
Act applied to a combination among the sugar refiners of a single state
who were engaged in fixing the price which they would pay for sugar
beets grown in that state since the products of the refiners were ultimately
sold in interstate commerce.8 0 Although not expressly overruling the
earlier case, the Court stated that it had "produced a series of consequences for the exercise of national power over industry conducted on a
national scale which the evolving nature of our industrialism foredoomed
to reversal." '
The judges had occasion to consider the application of constitutional principles to a matter closely touching their personal interest when
the federal government passed a general income tax law. When first
confronted with the imposition of a tax upon the income of judges,
the Court held that the constitutional prohibition against diminuation of
8
a judge's salary while in office precluded the imposition of the tax.

A few years later the Court extended the same principle to protect against
taxation a judge who had assumed office after the income tax statute
was passed, although it was not altogether clear exactly how his salary
had been diminished.8 3 With the passage of years, however, the judges
apparently became less sure of their right to such privileged treatment,
and by 1939, after the income tax had become a well established part
of federal fiscal policy, the Court reversed its earlier position and held
that the imposition of a non-discriminatory income tax on the salary
84
of federal judges was not prohibited by the constitution.
A similar shift in viewpoint occurred with respect to the reciprocal
immunity from taxation of the employees of state and federal government agencies. For nearly a century, from 1842 to 1937, the Court
maintained the position that the salary of an employee of an instrumentality of the federal government was immune from state taxation,
and that, conversely, the federal government might not lay an income
tax upon the compensation of employees or officers of a state govern79.
80.
81.
82.
83.
84.

United States v. E. C. Knight Co., 156 U.S. 1 (1895).

Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 (1948).
Id. at 230.
Evans v. Gore, 253 U.S. 245 (1920).
Miles v. Graham, 268 U.S. 501 (1925).
O'Malley v. Woodrough, 307 U.S. 277 (1939).

LEGAL LOGIC
ment.85 In 1939 the Court overruled and disapproved this whole line
of cases, saying that the theory that a tax on income is legally or economically a tax on its source is not tenable, and that therefore the salary
of an employee of a federal instrumentality is not immune from state
80
income taxation.
In 1928 the Supreme Court held that the business of a private employment agency was not affected with the public interest so as to enable
a state to fix the charges which might be made by the employment agency
for the services rendered.8 7 In 1941 the Court overruled this earlier
decision holding that a state statute fixing the maximum compensation
which a private employment agency might charge is not unconstitutional,
since the business is one which is subject to control for the public
good.8 8 In an unanimous opinion, the Court said, "The drift away from
Ribnik v. McBride has been so great that it can no longer be deemed a
controlling authority. It was decided in 1928." 8M-as though a mere
thirteen years were enough to antiquate a Supreme Court precedent!
The Court recognized that it was changing its viewpoint as to matters
of public policy, but professed the position that rather than adopting
a different view of public policy it was discarding policy as a test of
constitutionality altogether. The Court said:
We are not concerned, however, with the wisdom, need,
[Since] those
or appropriateness of the legislation .......
notions of public policy imbedded in earlier decisions of this
court

do not find expression in the Constitution, we

cannot give them continuing vitality as standards by which the

constitutionality of the economic and social programs of the
states is to be determined.90
While it may be doubted that the Court has wholly abandoned any
notions of public policy in its consideration of public issues, or indeed
that it can do so, it is apparent from this decision that the notions of
public policy recently held by the members of the Court are certainly
much broader and more flexible than those embraced by the personnel
of earlier courts.
The Supreme Court's changing views of public policy with relation
to the regulation of prices are admirably illustrated by its rulings as to
85. Dobbins v. Erie County, 16 Pet. 435 (U.S. 1842); Buffington v. Day, 11 Wall.
113 (U.S. 1871); New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937); Brush v.
Commissioner, 300 U.S. 352 (1937).
86. Graves v. New York, 306 U.S. 466 (1939).
87. Ribnik v. McBride, 277 U.S. 350 (1928).
88. Olsen v. Nebraska, 313 U.S. 236 (1941).
89. Id. at 244.
90. Id. at 246-7.

INDIANA LAW JOURNAL

fluid milk. In 1927 the Court held a state statute forbidding geographical discrimination in the price of cream purchased to be unconstitutional
as impairing the private right of freedom of contract and as not reasonably related to the prevention of monopoly. 91 In passing it might be
noted that this last reason is a strange one, indeed, in view of the
provisions of the federal Clayton Act. In any event, by 1934 the Court
had so far changed its position that it was ready to hold, in the famous
Nebbia case, that a state statute may constitutionally provide for fixing
the price of milk both in the transaction in which it is purchased from
the producer and that in which it is sold to the consumer.9 2 The Court
disposed of the constitutional freedoms by remarking that they do not
include the right to conduct a business so as to injure the public or any
substantial group. A few years later the Court extended the same reasoning to bring similar power within the authority of Congress under the
commerce clause. 93
The Court's notions of policy and propriety are not confined in
their application to cases involving issues of burning public interest.
In 1928 a rather technical issue came before the Court as the result
of an action to remove a cloud on title to certain Chicago real estate.
The plaintiff held a 198 year lease on the land and desired to tear down
a building then standing on it and erect a new one. The owner of the
fee denied the plaintiff's right to do this with the result that the plaintiff
was unable to secure financing for its plans. The Court in an opinion
by Justice Brandeis held that the plaintiff's bill would not lie.9 4 "What
the plaintiff seeks," said Brandeis, "is simply a declaratory judgment.
To grant that relief is beyond the power conferred upon the federal
judiciary.

The proceeding is not a case or controversy within

the meaning of article III of the constitution." 95 Justice Stone, with

admirable prescience, concurred in the result on the grounds that the
judicial code did not give the courts the power to decide a case of this
character, but said that the opinion putting declaratory judgments
beyond the constitutional functions of the courts was itself a declaratory
judgment and was not justified. The prevailing counsel in this case
was Charles Evans Hughes. Apparently Mr. Hughes either was not
convinced by his own advocacy or the passage of nine years altered his
viewpoint. In 1937, Mr. Hughes having become in the meantime Chief
Justice, a federal declaratory judgments act came before the Court and
91.
92.
93.
94.

Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927).

Nebbia v. New York, 291 U.S. 502 (1934).
United States v. Rock Royal Cooperative, 307 U.S. 533 (1939).
Willing v. Chicago Auditorium Ass'n, 277 U.S. 274 (1928).

95. Id. at 289-90.

LEGAL LOGIC
was held to be within the powers conferred upon the federal judiciary
by the Constitution in an opinion written by Chief Justice Hughes. 96
Although six of the judges who had been on the court in 1928 remained,
there was no dissent.
One more recent shift in judicial outlook will sufficiently illustrate
the point. In 1936 the Supreme Court invalidated the first Congressional
attempt to establish an agricultural adjustment act, declaring emphatically
that the federal government may not impose a tax, the purpose of which
is to regulate and control agricultural production, under the general
welfare clause or under any other constitutionalprovision.97

Two years

later, however, it was almost equally clear to the Court that Congress
might constitutionally under the commerce power impose quotas upon
the amount of agricultural products that a farmer might sell. 98 By
1942 the power of Congress over agricultural production was so easily
recognized that the Court had no difficulty in holding that Congress might
constitutionally control the production of wheat not intended for commerce but intended wholly for consumption on the farm, provided only
that the purpose of the regulation was to control the market price of
wheat under the commerce power. 90
These cases have not, of course, been chosen at random. They have
been selected to illustrate the shifting viewpoint of the judiciary when
confronted with problems which involve, or are claimed to involve, matters of important public policy. These cases are not, however, atypical
of that class. Furthermore, the cases mentioned are only a sampling
of the whole class. Many more could be gathered from the opinions
of the Supreme Court, of the federal courts of appeal and of the various
state appellate tribunals.
These series of cases should, however, destroy any vestige of claim
which precedent-analogy may have to a controlling or determining influence in judicial decision. All of the series of cases mentioned above
involve judicial consideration of closely analogous situations at different
times. These are not loose analogies such as those existing between a
gun and an exploding lamp, between poison and a defective automobile
or between prostitutes and plural wives. These are close and strict
analogies siich as exist between one labor union and another, between
the wages and hours in one commercial enterprise and another, between
one sugar manufacturer and another, between the salary of a judge in
96. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
97. United States v. Butler, 297 U.S. 1 (1936).
98. Mulford v. Smith, 307 U.S. 38 (1939).

99. Wickard v. Filbura, 317 U.S. 111 (1942).

INDIANA LAW JOURNAL

one year and in another year, and between a declatory judgment in one
decade and the succeeding decade. It should now be apparent that if the
argument which conceives legal reasoning as being based upon precedentanalogy means merely that this is the form in which judicial rationalizations are commonly put then it is neither novel nor significant. On the
other hand, if the argument is meant to imply that there is any force in
either the form or substance of precedent-analogy which is capable of
directing the result in a doubtful case, then it is false.
Even this might not be enough to cause the courts and lawyers to
discard a traditional and convenient form of rationalization were it the
only objection. 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.
When the Supreme Court desires to exclude consideration of evidence drawn from non-legal sources it is likely to say:
The constitution does not require legislatures to reflect
sociological insight or shifting social standards, any more than
it requires them to keep abreast of the latest scientific standards.
On the other hand, when the Court desires to consider social circumstances not drawn from the body of legal precedent, it is inclined
to say:
Regulations, the wisdom, necessity and validity of which,
as applied to existing conditions, are so apparent that they are
now uniformly sustained, a century ago, or even half a century
ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify
traffic regulations, which before the advent of automobiles and
rapid transit street railways, would have been condemned as
fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guarantees
never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.
Let it be clear that these statements represent differing ad hoc
rationalizations, and not the expressions of spokesmen articulating fund-

LEGAL LOGIC
amentally opposed legal philosophies. The first dictum, that legislatures
are not required to reflect shifting social standards, is from an opinion
of justice Frankfurter delivered in 1948.100 The second argument,
that the meaning of the constitution changes as social conditions change,
is from an opinion by Justice Sutherland delivered in 1926.101
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. The materials
from which the courts can draw from time to time for the determination
of present and future controversies are by this view confined to materials
which have been used by the courts in the past. The difficulty with such
a system is that it cannot even maintain the level of information which
it may possess at any given time. Just as in a closed system useful energy
may be lost but not gained, so in a closed system information may be dissipated but not gained.1 0 2 Thus in a closed logical system, such as that
100. Goesaert v. Cleary, 335 U.S. 464, 466 (1948).
101. Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926).
102. WIENER, THE HUMAN USE OF HUMAN BEINGS 88 (1950); BRLLOUIN, Thervwdynamics and Information Theory, 38 AmuIcAN SCIENTIST 595 (1950). The proposition
stated in the text that in a closed system useful energy may decrease but not increase
is a paraphrase of the second law of thermodynamics. This states that in an isolated
system (i.e. one contained in an enclosure through which no heat can be transferred,
no work done and no matter or radiation exchanged) entropy (a measure of unavailable energy or randomness) may increase but cannot decrease. This priniciple has been
found to be of such universal validity that Eddington says it holds "the supreme
position among the laws of nature". EDDINGTON, THE NATURE OF THE PHYSICAL
WORLD 74 (1928). However, Brillouin has expressed the view that while the validity
of the law is beyond doubt the domain of its applicability should be phenomena of a
terrestial order of magnitude. He says: "The whole universe is too big for thermodynamics and certainly exceeds considerably the reasonable order of magnitude for
which its principles may apply." Brillouin, Life, Thermod-namics, and Cybernetics,
37 A EIcAN SCIENTIST 554 (1949). In any view, this law is essentially an application
of the principles of probability to physical phenomena, and is roughly equivalent to
saying that the direction of change in the state of organization of any isolated system
will be from the improbable toward the more probable. REICHENBACH, THE RISE OF
SCIENT'IFIC PHILOSOPHY 159 et seq. (1951) ; Brillouin, Ibid. Thus the entropy concept
is capable of application to biological and psychic, as well as physical, phenomena. Ostow,
The Entropy Concept and Physical Function, 39 AMERICAN SCIENTIST 140 (1951).
Since, in communication theory, information is the degree of organization of data, it
is equivalent to negative entropy, and is lost as entropy, or randomness, increases.
Weaver, The Matlematics of Communication, 181 SCIENTIFIC AMERICAN 11 (1949).
Consequently the principle that in a closed system information may decrease but not
increase is a deduction from the nature of the entropy and information concepts and
is not merely an analogy between physics and communication theory. On the other
hand, law is not in a strict sense a "closed system" of the kind postulated by this
principle. Nevertheless, since the principle of "information decay" is a statistical one,
to the degree that law tends to be a closed system, the principle applies. Therefore,
to the degree that the decision-by-precedent principle tends to constitute law a closed
system, we are justified in applying the principle of "information decay", even though
law may never actually approach the limiting case of a completely closed communications system.

INDIANA LAW JOURNAL

postulated by the precedent-analogy theory, the relationship between
action 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 is impossible to tell what information any given judge may
have absorbed at any particular time or may feel inclined to refer to in
any particular case. Furthermore, there is not only no safeguard against
error, there is not even any method of sifting, examining or testing the
information that may be thus absorbed by the judges.
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. This does not mean that
every case shall become a debate regarding the relative merit of conflicting social policies. 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. To say
that either one should be the exclusive instrument of legal reasoning is
to take a cripplingly narrow view of the legal process. So long as the
law 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. The
law school training of lawyers is, or has been, concerned almost exclusively with deriving the controlling considerations from predetermined

LEGAL LOGIC
standards of decision. "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 "case
method" means extracting attractive rationalizations from reported
opinions of past cases for use in justifying the conclusion to be reached
in a present case. Since this method is now practically universal in
American law schools, it sets the pattern for the American lawyers'
approach to professional subject matter. The practicing bar, therefore,
both on and off the bench, tend to view the problems of law in terms of
the ease or difficulty of finding precedents that may be useful in a particular lawsuit. Law Review discussions of the sources from which the
standards of decision should be drawn come, therefore, to appear "theoretical" and "academic."
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.
The main reason for this is that we have dealt with the material in
terms of linguistic symbols without ever taking the trouble to learn
the proper use and limitations of such symbols.
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. This has long been
recognized by the more astute legal thinkers. For example, Dean Pound
says with respect to the concept of contracts:
Nowhere, indeed, has the deductive method broken down
so completely as in the attempt to deduce principles upon which
No one of the four

contracts are to be enforced. . ..

theories of enforcing promises which are current today is adequate to cover the whole legal recognition and enforcement of
them as the law actually exists.

The category of en-

forceable simple promises defies systematic treatment as obstinately as the actionable pacts in Roman law.

Revived

philosophical jurisprudence has its first and perhaps its greatest

opportunity in the Anglo-American law of contracts.. The constantly increasing list of theoretical anomolies shows that analysis and restatement can avail us no longer.' 0 3
103.

(1922).

PouND, AN INTRODUCrION TO THE PHILOSOPHY OF LAW

264, 269, 275, 282,

INDIANA LAW JOURNAL

Pound closes his consideration of the subject with a plea for a "Twentieth Century philosophical theory, whatever it is," to furnish a logical
10 4
critique of the domain of legally enforceable promises.
Similar comments apply equally to the other basic legal concepts.
By and large such concepts do more to conceal than to reveal the grounds
for legal action. A promise is not a contract unless it is legally enforceable, and the fact that it is legally enforceable is what brings it within
the category of contracts rather than vice versa. Similarly, when we
call some relation "property" or call a corporation a "person" or
describe an act as "negligent" we are saying that there is in each case
an interest which the law will protect.10 5 It is important to realize that
the law does not protect our interest in some thing because we call it
property, but that we call it property because the law protects our interest
in it. Once the descriptive term or legal category for an act has been
selected, then the legal consequences of that act have been determined.
Therefore, 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. Thus such an astute mind as Holmes,
in analyzing the operation of the common law, is forced to the conclusion
that the ultimate determinants of judicial action are not general principles but practical considerations. 0 6
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. Of course, this does not mean that there
are any simple formal guarantees of either truth or validity either at
this or any other stage of the legal process. It does mean, however, that
there are tested techniques available which have proved to be of high
utility in the effort to deal rationally with similar problems in other
fields. There is every reason to believe that they would be equally
fruitful in the legal field.
It is impossible to give in a brief compass any adequate account of
modern semantics. 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. However, it is possible to suggest at least
104. Id. at 284.
105. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 25
CoL. L. REv. 809 (1935).
106. HOLMES, THE Commolx LAw 1-2, 35-6, 337-8 (1881).

LEGAL LOGIC
a few of the working postulates of semantics that seem particularly
applicable to the legal process. Reduced to simple terms, these may be
stated as follows:
A. The meaning of any term is the action which it evokes ot to
which it refers. This is sometimes referred to as the "operational
definition," although it implies much more than the matter o'f defining
termsloT
B. A term does not have the same meaning in different contexts.
This is sometimes indicated by the semantic device of using subscript
numbers to indicate the differences in the use of a term. Thus contract,
is not the same as contract2 and neither is the same as contracts and
so forth.'0 8 In the legal field, where a concept such as contract covers
not only a single ostensible category, but also a host of sub-categories,
such as parol-, written-, negotiable-, executory-, quasi-, etc. the applicability of this device should be self-evident.
C. A term does not have the same meaning at different times.
This postulate is sometimes employed by means of the semantic device
of "dating". 10 9 Thus contract 1850 is not the same as contract 1900 and
neither one is the same as contract 1952. The utility of this principle and
device in the legal field should also be apparent. No matter what
similarity 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. The
similarity 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. To paraphrase Holmes, before legal terms may properly be used for legal operations they must be sterilized in semantic acid.
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. Superficially this would appear to be an easy and
automatic process and there are many who believe it to be so. Probably there are cases in which it is not difficult but they are certainly
far fewer than is generally supposed. With rare exceptions, every
judgment in a contested lawsuit must be one fashioned specifically to
107.

108.

BRIDGmAN, THE LOGIc OF MODERN PHYSICS (1927).

HAYAKAWA, LANGUAGE IN THOUGHT AND AcTION esp.

109. Ibid.

c. 17 (1949).

INDIANA LAW JOURNAL

fit the facts of that case. It is rare indeed that a simple "judgment
for the plaintiff" ' will suffice, although of course the converse, where
appropriate, is more frequently sufficient.
Assuming a situation in which the evidence establishes facts that
are in all material respects like the analogue of an established precedent
in which it is clearly determined that judgment should be for the
plaintiff, nevertheless, this will not set either the amount of damages
to be awarded, or the form of decree to be entered. Since damages
are normally set by the jury, judges have not been so concerned about
this problem. However, there are a growing number of situations in
which judges alone are being called upon to estimate damages, and the
remedial powers of the courts are being invoked for increasingly complex problems. 'Furthermore, the failure to clarify and differentiate
basic concepts at this stage of the legal process has the same consequences
as at any other stage.
The two basic functions of the court in civil proceedings are the
punitive or preventative and the remedial. Liability having originally
grown out of a concept- of fault, 110 there remains a notion that the imposition of the burden of reparation will have a deterrent effect similar to
the imposition of punishment in a criminal proceeding. On the other
hand, the function of damages, as well as of equity decrees in private
suits, is to make the plaintiff whole and remedy the wrong that has been
done to him. Unfortunately, the two incompatible theories do not apply
to separate categories of cases, but actually compete for the favor of
the court in every case. Thus, the courts are likely to shift back and
forth in a ingle proceeding from one theory of judicial remedy to the
other, sometimes in defiance of all rational principles.
Let us take the common personal injury negligence action as a
simple example. With the exception of one or two states which have
adopted the "comparative negligence rule," the right of a plaintiff who
has been injured by the negligence of another to recover compensation
depends upon his stablishing that the defendant was at fault. Without
such evidence the plaintiff has no recovery at all. Once having established this, however, the plaintiff's damages are measured by his loss or
his need for reparation. The difficulty is that the plaintiff's need is not
related in any way to the defendant's fault. A plaintiff may be very
seriously injured and stand in great need of compensation even though
a defendant was only slightly at fault, or not at fault at all. On the
other hand, a defendant who was grossly at fault may have caused only
very small injury. Thus the law does not proceed consistently on
110.

HOLMES, THaE COMMON LAW

37-8 (1881).

LEGAL LOGIC
either the deterent or remedial theory of damages so far as negligence
either the deterrent or remedial theory of damages so far as negligence
cases are concerned. If the law were consistent and based upon the
deterrent theory, then damages would be apportioned according to the
degree of the defendant's negligence. A defendant who had been grossly
negligent would be required to pay much larger reparations than a defendant who had been only slightly negligent, just as punishment in
criminal cases is related in severity and amount to the conduct constituting the offense. On the other hand, were damages consistently based upon
a remedial theory, then the right of a seriously injured plaintiff to reparation and compensation for his injuries would not depend upon the wholly
accidental chance of his being able to convince a court or jury of the
defendant's fault.
The anomolies of the law's confused approach to this problem cause
every court in the land to be crowded with unnecessary cases. , There
probably is not a court of general jurisdiction in the country that does
not have pending before it at any given time a large number of cases
in which injured plaintiffs are seeking to recover damages from one or
more defendants upon various complicated theories of agency or secondary responsibility or liability. As an illustration of such a situation, a
plaintiff, seriously injured by the negligence of a drunken driver, sues
the bartender or innkeeper who sold the liquor to the driver. 'The law,
in denying a right of action to the plaintiff in such a case, pompously
takes the academic view that the plaintiff has a cause of action against
the negligent driver in any event. The practical difficulty, of course,
always is that the driver is not financially responsible and that a cause
of action against him is a worthless thing, otherwise the plaintiff would
not have bothered to sue the bartender in the first place. Thus, in such
a case the court proceeds entirely on the punitive or deterrent theory
in denying a judicial remedy to the plaintiff. However, let a defendant
commit some act which comes within the law's conception of negligence,
and however slight his fault may be, he then becomes responsible for
all of the injuries which proximately result to a plaintiff regardless of
the fact that the liability thus imposed may be completely out of proportion to any fault of which he was guilty.
The anomaly of the conflicting principles as to judicial remedies is
perhaps even more apparent in equity suits. Courts in such actions are
very fond of saying that the decree which should be entered should be
"remedial and not punitive." Ostensibly this seems to state a sound
principle. However, when close examination is given to what the judges
actually mean by this language in the context in which it is used, a

INDIANA LAW JOURNAL

strong inference arises that the judges use this language to indicate that
they are going to enter a decree that is not too drastic or severe. As a
result of this attitude, the courts are frequently found to enter decrees
which are in effect a "slap on the wrist" to the defendant, and which
are not truly remedial at all. It is notorious that the decrees of the
federal courts in the extremely important field of antitrust cases fall
within this description.11 1 Thus as a general rule the practical consequence of the ostensible attitude that decrees should be remedial and not
punitive is that they are not at all remedial and are in fact slightly
punitive.

IV
Traditionally, Anglo-American courts have tended to seek results
which the judges thought to be desirable in the social circumstances
existing and in the light of prevailing notions of policy. However,
both tradition and contemporary attitudes have compelled the judges
to justify their decisions in terms of some kind of "logical" support.
The courts have, accordingly, adopted the only logic that was available
to them-the true-false deductive logic. This form of .reasoning has at
once facilitated and reinforced the reliance upon precedent as a standard
of decision. In the first place, the body of judicial precedents constituted
the only convenient source of generalized principles suited to the function
of judicial rationalization; and, in the second place, the range of available precedents did not unduly hamper the free choice of a court in any
specific situation. 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 been
formally a closed system. The materials from which legal reasoning
has proceeded have been the materials already included within the system
and the processes of reasoning have done no more than re-work existing
materials. Whatever new facts or ideas entered the system, were smuggled in disguised as old terms. While the judges continue to use the same
concepts from time to time they were unable to prevent the concepts from
shifting their meanings slightly as the non-judicial world changed and
111. Adams, Dissolution, Divorcement, Divestiture: The Pyrrhic Victories of Antitrust, 27 ND.L.J. 1 (1951).

LEGAL LOGIC
thus the law was saved from becoming insufferably archaic. 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. By way
of supporting argument for the position that judges should consider
contemporary culture needs and standards, it was pointed out that similar
facts had always influenced the law if not individual judges.
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. It was seen that legal decisions were not the inevitable
result of the ostensible rationalizations involved, and that consequently
there was a substantial area of uncertainty in the operation of the legal
process. A number of writers having little in common except a few
of these basic insights were frequently grouped together under the vague
term "legal realists." This group as such has never developed either a
coherent philosophy or a definite program.
Unfortunately, it now appears as though the avant garde of the
realist group is retreating into a new mysticism. 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. From this the neo-mystics draw the inference that
vagueness and uncertainty should be regarded as desirable, and, in fact,
may constitute the principal virtues and tools of the law. The neomystic view does not consider vagueness and uncertainty as matters of
degree, and does not admit the desirability of the objective that they
should be minimized. The inevitable conclusion is that since there are
no transcendental standards, and since all available formal guides to

INDIANA LAW JOURNAL

judicial action are hopelessly uncertain, we must rely upon judicial
intuition. We are consoled for this conclusion, however, by being told
that thereby a degree of flexibility is imparted to the law which permits
it to progress in spite of an ostensible refusal to take account of changing
conditions.
Thus the new mysticism casts out the transcendental but embraces
the intuitive. This is a mundane mysticism, but nevertheless a mysticism
since it rejects conscious reason as a guide to c6nduct and tells us we
must rely upon intuition. It reduces legal reasoning to a formless
muddle, and says we should accept this and we will muddle through.
This is the jurisprudence of Barrister Blimp.
The'e is an opposing viewpoint which this article seeks, however
inadequately to suggest, which is that we are capable of bringing conscious
reason to bear upon the solution of legal and social as,well as other types
of problems. The fact that legal concepts are vague .and that the legal
process operates with a degree of uncertainty should neither appall nor
depress us. Even the fact that some vagueness and uncertainty are inescapable should not be. too discouraging. Friction is also an inevitable
characteristic of the operation of a physical machine. But we do not
shrug our shoulders and say that there is nothing that we can do about
it. We invent more efficient lubricants to minimize the effects of friction
and produce machines that run quite efficiently in spite of it. To draw
a closer analogy, medical diagnosis and therapy is also an uncertain
matter. 1 2 The classification of maladies and the prescription of remedies are by no means infallible. Yet no one contends that we should close
our medical laboratories or that doctors should abandon the effort to
diagnose and prescribe as accurately as possible in the light of modern
medical science and should return to the mystical methods of the prescientific age.
It is worthy of note that vagueness and uncertainty are not characteristics exclusively of law, or even of social or biological sciences generally. Modern science has discovered a degree of indeterminacy underlying all physical phenomena, and there is an inherent and inescapable
degree of uncertainty in all, even the simplest, physical measurements. 1 13
112. King, The Meaning of Medical Diagnosis,8 ETC. 202 (1951).
113. EDDINGTON, THE NATURE OF THE PHYSICAL WORLD 220 (1928) ; PLANCI, THE
PHILOSOPHY OF PHYSICS 49 (1936); JEANS, PHYSICS AND PHILOSOPHY 168 (1943);
Furth, The Limits of Measurement, 183 SCIENTIRiC AMERICAN 48 (1950). Jeans states the
classical version of the indeterminacy principle thus: "Our experimental explorations of
nature do not admit of absolute precision, owing to the fact that nothing less than a
complete photon can be received from the outer world. Regarding the electron as a
moving particle, we saw that no experiment could fix both its speed of motion and its
position in space with complete accuracy. . . . No possible experimental arrangement

LEGAL LOGIC
But this does not render imprecision a virtue or accuracy and relative
certainty useless objectives.
There seems no sound reason for believing that vagueness and uncertainty are the best ways of attaining flexibility in the law. The inevitability of vagueness and uncertainty furnishes no logical support to the
conclusion that certainty and precision may not be desirable ideals in
the law, as in other fields, even though we do hot believe them to- be
completely attainable. In a word, there seems no ground for taking
the position that in the law alone, of all fields of human conduct and
study, knowledge must be camouflaged and progress disguised.
The difficulty with regarding vagueness and uncertainty as virtues
and with deliberately employing them as tools is that there is no method
of limiting the scope of their operation. This viewpoint wholly destroys
any incentive to engage in the hard work and disciplined thinking that
is necessary to secure some measure of. precision and certainty. Human
nature 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. A system with such postulates could not long maintain
any pretense to being rational.
An even more important objection to the new mysticism, at least
from the viewpoint of American lawyers, is that the retreat from
reason involved in the reliance on intuition leaves us with no means of
resolving conflicts other than an appeal to authority. Inherent in social
use of the method of conscious reason (or modem logic, as the term has
been used here) is the assumption that investigation, discussion and
persuasion are capable of producing sufficient precision and knowledge
of issues to create at least some area of social agreement. This is the
theory and method of democracy. 114 This is likewise the theory and
method of jurimetrics. 115 The employment of modern logic on the
can make these two uncertainties both vanish simultaneously, so that the product of
the two can never be zero. A detailed study by Heisenberg has shown that the product
can never be less than Planck's constant h. This is known as Heisenberg's principle of
uncertainty (or indeterminacy)." Op. cit. supra at 168-9. Planck states that the prin-

ciple applies to all predictions of physical events. "The available facts accordingly
compel us to admit that the state of affairs may be correctly summed up by saying
that in no single instance is it possible accurately to predict a physical event" Op. cit.
supra at 49. Furth states that the principle applies to macroscopic, as well as submolecular, measurement. "All physical quantities, with the sole exception of the universal constants, are defined only statistically. Consequently the- must exhibit fluctuations that will prevent precise measurements being taken beyond a certain limit." Op. cit.
supra at 49.
MYT s AND DE~mocRAcy 9-11 (1940).
114. HooIc, REAsosN, Soc
115. Loevinger, lurmetrics,33 MINN. L. Rav. 455 (1949).

INDIANA LAW JOURNAL

practical level does not require the acceptance of all of its underlying theoretical implications. On the other hand, jurimetrics, as well
as the several contemporary variants of "experimental jurisprudence,"
do necessarily require a legal logic of the character outlined here.
The contrary view is that the process of public investigation, discussion and persuasion of issues is not only unnecessary but impossible,
since all significant meanings are to be apprehended by the individual
intuitively. As this latter philosophy provides no rational means of dealing with differences in the intuitive apprehensions of various individuals,
conflicts thus arising must be resolved by the determination of some more
authoritative intuition. Such an authority could, conceivably, be established by common consent without the use of force, but the history of the
world gives no reason to suppose that temporal authority of this character
ever will or can be established or maintained except by the use of force.
In any event, the very essence of authoritarianism is the philosophy of
intuitive mysticism. Conclusions are to be accepted not because they
can be demonstrated or because their plausibility can be persuasively presented but because they represent the intuitive apprehensions of some
higher authority. This has been the official philosophy of despots and
dictators throughout human history. One would think that the world
had already been sufficiently scourged in this century with the practical
consequences of this philosophy to discourage any further dabbling in it.
The modern flirtation between law and mysticism appears to be the
result of a reaction against the arid formalism of traditional logic which
has floundered around without finding any alternative synthesis. 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. The choice does not lie between logic and experience; or,
for that matter, between logic and tradition or social values or practical
consequences. The alternative to logic is simply the resort to intuition
or some other irrational method. 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 with

LEGAL LOGIC
certainty either valid or accurate. As has been noted, such pretense as
deductive logic claimed to this result was mere illusion. 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. This does not have the alluring simplicity of the theories
which offer the syllogism or the analogy as convenient handy forms
by means of which all legal problems may be solved. Neither does it
offer the promise of certain and unmistakable conclusions. 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. As
a modest (and very incomplete) beginning, it is suggested that the
following principles of modern logic are already struggling for recognition in contemporary legal thinking and will necessarily form 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

INDIANA LAW JOURNAL

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.
Of course, the logic of democracy does not require that every citizen be a savant or a theoretical logician. But if these assumptions be
accepted by those who would be leaders, then the public discussion of
issues in courtrooms, legislatures and public forums will be more informed and informative. These, then, are the conditions for government by consent, rather than subjugation, of the governed. This we
cannot afford to forget as a troubled world desperately searches for a
path toward world law.
It is evident that in order to perform its functions within such a
conceptual framework the law must utilize materials and methods as
broad as its subject matter. Since its subject matter is the whole range
of conflicting claims and desires of the individuals living in organized
society and since its principal method is ratiocination, 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
or without occasional covert infusions of unexamined experience. These
ideas are slowly gaining recognition, and there is today within the law
itself an increasing number of exploratory movements toward a more
adequate logic. It is important that these movements should not be
misguided into accepting an intuitive mysticism in a modern dress. 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.

INDIANA LAW JOURNAL

Volume 27

SUMMER, 1952

Number 4

INDIANA UNIVERSITY SCHOOL OF LAW

STUDENT EDITORIAL STAFF
Editor-in-Chief
HOWARD J.

COFIELD

Associate Editor

Article and Book Review Editor

FORD

G. LACEY

JOHN L. WOOLLING

Note Editor
CARL

D.

Note Editor
RICHARD

OVERMAN

T. CONWAY

Note Editor
LAWRENCE L.

ELLIS

B. ANDERSON

WILLIAM

T. BURKE

GEORGE B. GAVIT
ROBERT
ELWOOD

H. HAHN
H. HILLIS

MICHAEL

STENZEL

H. KAST

ELDON

H. NYHART

Roy S. KULLBY

RICHARD S. RHODES

GERRY LEVENBERG

GEOFFREY SEGAR

ALAN

H.

LOBLEY

RAY G. MILLER

PAUL

A.

TESCHNER

WILLIAM

J.

WOOD

The Indiana Law Journal is published quarterly by

THE INDIANA UNIVERSITY SCHOOL OF LAW

Editorial and Publication Office: Indiana University School of Law

Bloomington, Indiana

ARTICLES

LOGIC FOR LAW STUDENTS: HOW TO THINK LIKE A LAWYER

Ruggero J. Aldisert,* Stephen Clowney** and Jeremy D. Peterson***

INTRODUCTION
Logic is the lifeblood of American law.1 In case after case, prosecutors,
defense counsel, civil attorneys, and judges call upon the rules of logic to
structure their arguments. Law professors, for their part, demand that students
defend their comments with coherent, identifiable logic. By now we are all
familiar with the great line spoken by Professor Kingsfield in The Paper
Chase: You come in here with a head full of mush and you leave thinking
like a lawyer.2 What is thinking like a lawyer? It means employing logic to
construct arguments.

*
Senior U.S. Circuit Judge, Chief Judge Emeritus, United States Court of Appeals for the Third
Circuit, whose books include: OPINION WRITING (1990); THE JUDICIAL PROCE SS: TEXT, MATERIALS AND
CASES (2d ed. 1996); LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING (3d ed., Natl Inst. for
Trial Ad. 1997); WINNING ON APPEAL : BETTER BRIEFS AND ORAL ARGUMENT (2d ed. Natl Inst. for Trial
Ad. 2003); ROAD TO THE ROBES: A FEDER AL JUDGE RECOLLE CTS YOUNG YEARS & EARLY TIMES (2005).
** Law Clerk to Judge Aldisert, 2006-2007, Princeton, A.B., 2000, Yale Law School, J.D., 2006.
*** Law Clerk to Judge Aldisert, 2006-2007, Swarthmore, B.A., 1999, Harvard Law School, J.D.,
2006.
1. Apologies here to Oliver Wendell Holmes. As Holmes put it, [t]he life of the law has not been
logic, it has been experience. O.W. HOLMES, JR ., COMMON LAW 1 (1881). But see John H. Watson, M.D.,
A Case of Deduction, Or, Upon the First Meeting of Sherlock Holmes and Oliver Wendell Holmes, Jr., 24
U. ARK . LITTLE ROCK L. REV . 855 (2002) (arguing that the overarching themes of Justice Holmess
writings are comparable to the methods of deduction employed by Sherlock Holmes).
2. THE PAPER CHASE (Twentieth Century Fox 1973).

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

Notwithstanding the emphasis on logical reasoning in the legal

profession, our law schools do not give students an orientation in the
principles of logic. Professor Jack L. Landau complained that the idea of
teaching traditional logic to law students does not seem to be very popular.3
Indeed, Professor Landau found that [n]ot one current casebook on legal
method, legal process, or the like contains a chapter on logic.4 In our view,
this is tragic. The failure to ground legal education in principles of logic does
violence to the essence of the law. Leaving students to distill the principles
of logic on their own is like asking them to design a rocket without teaching
them the rules of physics. Frustration reigns, and the resulting argument
seems more mush-like than lawyerly. In these pages we make a small attempt
to right the ship by offering a primer on the fundamentals of logical thinking.
Our goals are modest. At the risk of disappointing philosophers and
mathematicians, we will not probe the depths of formal logic.5 Neither will
we undertake to develop an abstract theory of legal thinking. This Article,
rather, attempts something new: we endeavor to explain, in broad strokes, the
core principles of logic and how they apply in the law school classroom. Our
modest claim is that a person familiar with the basics of logical thinking is
more likely to argue effectively than one who is not.6 We believe that students
who master the logical tenets laid out in the following pages will be better
lawyers and will feel more comfortable when they find themselves caught in
the spotlight of a law professor on a Socratic binge.
Sifting through the dense jargon of logicians, we have identified a handful
of ideas that are particularly relevant to the world of legal thinking. First, all
prospective lawyers should make themselves intimately familiar with the
fundamentals of deductive reasoning. Deductive reasoning, as Aristotle taught
long ago, is based on the act of proving a conclusion by means of two other
propositions. Perhaps 90 percent of legal issues can be resolved by deduction,
so the importance of understanding this type of reasoning cannot be
overstated. Second, students should acquaint themselves with the principles
of inductive generalization. Inductive generalizations, used correctly, can help

3. Jack L. Landau, Logic for Lawyers, 13 PAC . L.J. 59, 60 (1981) (citing NORMAN BRAND & JOHN
O. WHITE, LEGAL WRITING : THE STRATEGY OF PERSUASION (1976) as one of the only legal writing texts
which includes even a list of common informal fallacies of argument).
4. Id.
5. A more comprehensive discussion, geared toward practicing lawyers, may be found in Judge
Aldiserts book, LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING (1997).
6. We note that logical reasoning is particularly important at the appellate level where most cases
are decided on the merits of the briefs. See, e.g., Mary Massaron Ross, A Basis for Legal Reasoning: Logic
on Appeal, 3 J. ASSN LEGAL WRITING DIRECTORS 179, 182 (2006).

2007]

LOGIC FOR LAW STUDENTS

students resuscitate causes that seem hopeless. Third, reasoning by

analogyanother form of inductive reasoningis a powerful tool in a
lawyers arsenal. Analogies help lawyers and judges solve legal problems not
controlled by precedent and help law students deflect the nasty hypotheticals
that are the darlings of professors. Finally, we comment briefly on the
limitations of logic.
I. IT S ELEMENTARY : DEDUCTIVE REASONING & THE LAW
A. The Syllogism
Logic anchors the law. The laws insistence on sound, explicit reasoning
keeps lawyers and judges from making arguments based on untethered,
unprincipled, and undisciplined hunches.7 Traditionally, logicians separate
the wider universe of logical reasoning into two general categories: inductive
and deductive. As we will see, both branches of logic play important roles in
our legal system. We begin with deductive reasoning because it is the driving
force behind most judicial opinions. Defined broadly, deduction is reasoning
in which a conclusion is compelled by known facts.8 For example, if we know
that Earth is bigger than Mars, and that Jupiter is bigger than Earth, then we
also know that Jupiter must be bigger than Mars. Or, imagine that you know
your dog becomes deathly ill every time he eats chocolate. Using deduction
we know that if Spike wolfs down a Snickers bar, a trip to the vet will be
necessary. From these examples, we can get an idea of the basic structure of
deductive arguments: If A and B are true, then C also must be true.
The specific form of deductive reasoning that you will find lurking below
the surface of most judicial opinions and briefs is the syllogisma label
logicians attach to any argument in which a conclusion is inferred from two
premises. For example:
All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.

7. See JOHN DEWEY , HOW WE THINK 17 (1933). Dewey says that reasoned thought converts
action that is merely appetitive, blind and impulsive into intelligent action. Id. S. Morris Engel puts it
this way: The study of logic . . . helps us free ourselves from ignorant thoughts and actions. S. MOR RIS
ENGEL , WITH GOOD REASON: AN INTRODUCTION TO INFOR MAL FALLACIES 52 (6th ed. 2000).
8. See EDWARD P.J. CORBETT & ROBERT J. CONNORS, CLASSICAL RHETORIC FOR THE MODERN
STUDENT 38, 43-44 (4th ed. 1999).

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

According to the traditional jargon, the syllogisms three parts are called
the major premise, the minor premise, and the conclusion. The major premise
states a broad and generally applicable truth: All men are mortal. The minor
premise states a specific and usually more narrowly applicable fact: Socrates
is a man. The conclusion then draws upon these premises and offers a new
insight that is known to be true based on the premises: Socrates is a mortal.
Gottfried Leibnitz expressed the significance of the syllogism three
hundred years ago, calling its invention one of the most beautiful, and also
one of the most important, made by the human mind.9 For all its power, the
basic principle of the syllogism is surprisingly straightforward: What is true
of the universal is true of the particular.10 If we know that all cars have
wheels, and that a Toyota is a car, then a Toyota must have wheels. The
axiom may be stated this way: If we know that every member of a class has a
certain characteristic, and that certain individuals are members of that class,
then those individuals must have that characteristic.11
It is no exaggeration to say that the syllogism lies at the heart of legal
writing.12 Consider these examples taken from watershed Supreme Court
opinions:
Marbury v. Madison13
The Judicial Departments province and duty is to say what the law is.
The Supreme Court is the Judicial Department.
Therefore, the province and duty of the Supreme Court is to say what the law is.14
Youngstown Sheet & Tube Co. v. Sawyer15
The Presidents power to issue an order must stem from an act of Congress or the
Constitution.

9. GOTTFRIED WILHELM LEIBNITZ, NEW ESSAYS CONCERNING HUMAN UNDERSTANDING 559

(Alfred Gideon Langley trans., 1916).
10. JOSEPH GERARD BRENNAN , A HANDBOOK OF LOG IC 64 (1957).
11. To be sure, there are other forms of deductive syllogism, but we have deliberately confined our
discussion to the All men are mortal typethe Categorical Deductive Syllogism. Thus, there is no
mention of the Hypothetical Syllogism (that includes an if-then statement), or the Disjunctive Syllogism
(a syllogism in which one premise takes the form of a disjunctive proposition (either-or), and the other
premise and conclusion are categorical propositions that either deny or affirm part of the disjunctive
proposition). See ALDISERT, supra note 5, at 158-68 for help with these sorts of syllogisms.
12. See, e.g., RICHARD A. POSNER , THE PROBLEMS OF JURISPRUDENCE 38-40 (1990) (describing the
strength of the syllogism in legal reasoning).
13. 5 U.S. (1 Cranch) 137 (1803).
14. Id. at 173-76.
15. 343 U.S. 579 (1952).

2007]

LOGIC FOR LAW STUDENTS

Neither an act of Congress nor the Constitution gives the President the power to
issue the order.
Therefore, the President does not have the power to issue the order.16
Brown v. Board of Education17
Unequal educational facilities are not permitted under the Constitution.
A separate educational facility for black children is inherently unequal.
Therefore, a separate educational facility for black children is not permitted under
the Constitution.18
Griswold v. Connecticut19
A law is unconstitutional if it impacts the zone of privacy created by the Bill of
Rights.
The law banning contraceptives impacts the zone of privacy created by the Bill of
Rights.
Therefore, the law banning contraceptives is unconstitutional.20

We urge all law students to get in the habit of thinking in syllogisms.

When briefing a case as you prepare a class assignment, the skeleton of the
deductive syllogism should always poke through in your description of the
cases rationale. Young attorneys should probably tattoo this on the back of
their handsor at least post it above their keyboards: Whenever possible,
make the arguments in your briefs and memos in the form of syllogisms. A
clear, well-constructed syllogism ensures each conclusion is well-supported
with evidence and gives a judge recognizable guideposts to follow as he
sherpas the law along his desired footpath.21
But how, you might ask, does a new lawyer learn to construct valid
syllogisms? Some people come to this ability instinctively. Just as some
musicians naturally possess perfect pitch, some thinkers have logical instincts.
Luckily for the rest of us, the skill can be learned through patience and
practice. We start with the basics. To shape a legal issue in the form of a
syllogism, begin by stating the general rule of law or widely-known legal rule
that governs your case as your major premise. Then, in your next statement,
the minor premise, describe the key facts of the legal problem at hand.

16. Id. at 585-89.

17. 347 U.S. 483 (1954).
18. Id. at 493-95.
19. 381 U.S. 479 (1965).
20. Id. at 483-86.
21. The foremost advocate of clear rules and formalism in American jurisprudence may be Justice
Antonin Scalia. See Wilson Huhn, The Stages of Legal Reasoning: Formalism, Analogy, and Realism, 48
VILL. L. REV . 305, 310 (2003). Justice Scalia argues that a formalist approach to legal reasoning ensures
predictability and fairness. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV . 1175,
1182-83 (1989).

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

Finally, draw your conclusion by examining how the major premise about the
law applies to the minor premise about the facts. Like this:
Major Premise: Cruel and unusual punishment by a state violates the Eighth
Amendment.
Minor Premise: Executing a minor is cruel and unusual punishment by a state.
Conclusion: Executing a minor is forbidden by the Eighth Amendment.22

Although this might look simple, constructing logically-sound syllogisms

requires a lot of grunt work. You must thoroughly research the laws nooks
and crannies before you can confidently state your major premise. And you
must become sufficiently knowledgeable about your case to reduce key facts
to a brief yet accurate synopsis.
If you find yourself having trouble organizing a brief or memo, try
shoehorning your argument into this generic model, which is based on the
argument made by prosecutors in nearly every criminal case:
Major premise: [Doing something] [violates the law.]
Minor premise: [The defendant] [did something.]
Conclusion: [The defendant] [violated the law.]

The prosecutors model can serve as a useful template for most legal
problems. Using it will help you reduce your arguments to their most
essential parts.
In addition to providing a useful template, the above example reflects the
fact that the three parts of a syllogismthe two premises and the
conclusionare themselves built from three units. Logicians call these units
terms. Two terms appear in each statement: the major term in the major
premise and conclusion, the minor term in the minor premise and
conclusion, and the middle term in the major and minor premises but not in
the conclusion. Notice that the middle term covers a broad range of facts, and
that if the conclusion is to be valid, the minor term must be a fact that is
included within the middle term. Although the jargon can get confusing, the
basic idea isnt hard to grasp: Each statement in a syllogism must relate to the
other two.

22. See Roper v. Simmons, 543 U.S. 551 (2005).

2007]

LOGIC FOR LAW STUDENTS

B. Finding Syllogisms in Legal Writing

But wait!you might be thinkingthis syllogism business is too simple;
opinions and memos are never so straightforward. Well, yes and no. The
syllogism is simple, and indeed it does undergird most legal arguments, but
sometimes you have to dig a bit below the surface to excavate syllogisms.
The fact that syllogisms arent immediately evident doesnt mean that the
writing is sloppy, or that it doesnt use syllogisms. But it does mean that
youll have to work a bit harder as a reader. One logician notes that an
arguments basic structure . . . may be obscured by an excess of verbiage . . . ,
but an arguments structure may also be obscured for us . . . because it is too
sparse and has missing components. Such arguments may appear sounder
than they are because we are unaware of important assumptions made by them
. . . .23
Consider this one-sentence argument penned by Justice Blackmun in his
Roe v. Wade opinion:
This right of privacy, whether it be founded in the Fourteenth Amendments concept
of personal liberty and restrictions upon state action, as we feel it is, or, as the
District Court determined, in the Ninth Amendments reservation of rights to the
people, is broad enough to encompass a womans decision whether or not to
terminate her pregnancy.24

Implicit within Justice Blackmuns statement is the following syllogism:

Major Premise: The right of privacy is guaranteed by the Fourteenth or Ninth
Amendment.
Minor Premise: A womans decision to terminate her pregnancy is protected by the
right of privacy.
Conclusion: Therefore, a womans decision whether to terminate her pregnancy is
protected by the Fourteenth or Ninth Amendment.

The ideas are floating around in Judge Blackmuns sentence, but it requires
some work on the readers part to parse them into two premises and a
conclusion.
Sometimes its more than a matter of rearranging sentences and
rephrasing statements to match up with the syllogistic form. Sometimes a
legal writer doesnt mention all parts of the syllogism, leaving you to read
between the lines. Logicians are certainly aware that an argument can be

23. ENGEL , supra note 7, at 20.

24. 410 U.S. 113, 153 (1973).

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

founded on a syllogism although not all parts of the syllogism are expressed.
They even have a name for such an argument: an enthymeme. Often,
enthymemes are used for efficiencys sake. If a premise or conclusion is
obvious, then the writer can save her precious words to make less obvious
points. Even a kindergarten teacher might find the full expression of a
syllogism to be unnecessary. The teacher could say, Good girls get stars on
their foreheads; Lisa is a good girl; Lisa gets a star on her forehead. But
shes more likely to say, Lisa gets a star on her forehead because she is a
good girl. In logic-speak, the teacher would be omitting the major premise
because it is generally understood that good girls get stars on their foreheads.
Judges and lawyers write for more educated audiencesor so we
hopeand so as a law student you had better be ready for hosts of
enthymemes.25 The Third Circuit employed one in Jones & Laughlin Steel,
Inc. v. Mon River Towing, Inc.26 That decision was founded on the following
syllogism:
Major Premise: Any federal procedural rule that conflicts with Rule 4 of the Federal
Rules of Civil Procedure is superceded by Rule 4.
Minor Premise: Section 2 of the Suits in Admiralty Act is a federal procedural rule
that conflicts with Rule 4 of the Federal Rule of Civil Procedure.
Conclusion: Rule 4 supersedes Section 2 of the Suits in Admiralty Act.27

In the text of the opinion, however, the court left out a key part of the
minor premise; it never stated that Section 2 of the Suits in Admiralty Act
actually conflicts with Rule 4 of the Rules of Civil Procedure.28 The court can
hardly be faulted for not explicitly stating the conflict. All parties involved
recognized the conflict, and the court avoided needless words by leaving the
conflict implicit. But an astute reader of the case should recognize that a bit
of work on her part is necessary in order to develop the enthymeme into a fullfledged syllogism.
In addition to not handing the reader syllogisms on a platter, legal writers
also have the tendency to pile one syllogism on top of another. Not
surprisingly, logicians have a term for this too, but for once it is a term that

25. The philosopher Ludwig Wittgenstein argued that the use of enthymemes is commonplace. He
noted, The stove is smoking, so the chimney is out of order again. (And that is how the conclusion is
drawn! Not like this: The stove is smoking, and whenever the stove smokes the chimney is out of order;
and so . . ..). LUDWIG WITTG ENSTE IN , REMARKS ON THE FOUNDATIONS OF MATHEMATICS 40 (G.H. von
Wright et al. eds., G.E.M. Anscombe trans., 5th ed. 2001).
26. 772 F.2d 62 (3d Cir. 1985).
27. Id. at 66.
28. Id.

2007]

LOGIC FOR LAW STUDENTS

makes sense and is easy to remember. A series of syllogisms in which the

conclusion of one syllogism supplies a premise of the next syllogism is known
as a polysyllogism. Typically, polysyllogisms are used because more than one
logical step is needed to reach the desired conclusion. Be on the lookout for
something like this as you pick apart a complex legal opinion:
All men are mortal.
Socrates is a man.
Therefore Socrates is mortal.
All mortals can die.
Socrates is mortal.
Therefore Socrates can die.
People who can die are not gods.
Socrates can die.
Therefore Socrates is not a god.

You have been warned. Watch for enthymemes and polysyllogisms in

every opinion or legal memo or brief that you read, and be aware of them in
your own writing. Your arguments will be improved.
C. Watch Out!: Flawed Syllogisms
A syllogism is a powerful tool because of its rigid inflexibility. If the
premises of a syllogism are properly constructed, the conclusion must
follow.29 But beware of bogus arguments masquerading as syllogisms.30 For
example, consider the following:
Some men are tall.
Socrates is a man.
Therefore Socrates is tall.

It looks something like a syllogism, but you have no doubt spotted the
flaw: knowing that some men are tall isnt enough for you to conclude that a
particular man is tall. He might fall into the group of other men about whom
we know nothing, and who might be tall, but who also might be short. This
type of non-syllogism got past the U.S. Supreme Court in the Dred Scott case,
in which the Court held that people of African descent, whether or not they

29. See DAVID KELLEY, THE ART OF REASONING 239 (1998).

30. For an extended discussion of flawed syllogisms, see ALDISERT, supra note 5, at 145-228.

10

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

were slaves, could never be citizens of the United States.31 One dissenting
opinion noted that the Courts ruling relied on a bad syllogism, simplified
here:
Major Premise: At the time of the adoption of the Constitution, some states
considered members of the black race to be inferior and incapable of citizenship and
of suing in federal court.
Minor Premise: Dred Scotts ancestors at the time of the Constitution were members
of the black race.
Conclusion: Therefore, Dred Scotts ancestors were considered to be inferior and
incapable of citizenship and of suing in federal court.32

Mistakes of this sort remain extremely common in legal writing. Certain

buzzwords, however, can help distinguish valid syllogisms from fallacious
ones. Alarm bells should sound immediately if you spot terms in the major
premise like some, certain, a, one, this, that, sometimes,
many, occasionally, once, or somewhere. Remember at all costs that
the principle behind the syllogism is that whats true of the universal is true
of the specific. In deductive reasoning, you reason from the general to the
particular. Accordingly, if youre unsure about the nature of the general, you
cant draw proper conclusions about the particular.
Logical errors, unfortunately, are often tough to catch. Here is a different
one:
Major Premise: All superheroes have special powers.
Minor Premise: Superman has special powers.
Conclusion: Superman is a superhero.

Unless youre an avid comic book reader, it might take a moment to spot
the misstep. Knowing that every superhero has special powers doesnt allow
you to conclude that everyone with special powers is a superhero. Recall
again the golden rule of the syllogism: You can only draw a conclusion about
the particular (Superman, in this case) after you demonstrate that its part of
the universal class. Thus, a correct syllogism would look like this:
Major Premise: All superheroes have special powers. [General statement about a
class]
Minor Premise: Superman is a superhero. [Statement that an individual belongs to
the class]

31. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).

32. Id. at 572-76 (Curtis, J., dissenting).

2007]

LOGIC FOR LAW STUDENTS

11

Conclusion: Superman has special powers. [Conclusion that the individual has
properties common to other members of the class]

Remember this: Just because two things share a common property does
not mean they also share a second property. Some other examples of this
fallacy may help. Business executives read the Wall Street Journal, and
Ludwig is a Journal reader, therefore Ludwig is a business
executiveWRONG! All law students are smart, and John is smart, therefore
John is a law studentWRONG AGAIN! You get the idea.
So far, weve considered only two logical fallacies. Logicians have many
more.33 Although we cannot provide an exhaustive list of fallacies, here is a
quick check you can run that often will uncover flaws in a deductive
syllogism. Logicians have come up with a series of letters to identify different
types of propositions. The letters A and E describe universal
propositions, A being affirmative and E negative. Meanwhile, I and
O describe particular propositions, I being affirmative and O negative.
The letters come from two Latin words: Affirmo (I affirm) and Nego (I deny).
Logicians would describe the three propositions in our friendly All men are
mortal syllogism as AII. Now for the check: For the major premise to be
valid, it must be either A or E. You cant make a major premise out of an
I or an O. The IAA form, for example, is not a valid syllogism. And your
minor premise and conclusion must be either an I or an O. If your
tentative syllogism doesnt meet these requirements, youll know something
is wrong.
Certain logical errors crop up again and again, and so you should take
particular care to avoid them. Dont cite inappropriate secondary authorities
or cases from outside jurisdictions; logicians consider that an appeal to
inappropriate authority.34 Dont rely on attacks on your opponents
character.35 Dont rely on appeals to emotion.36 Dont rely on fast talking or
personal charm to carry the day. A cool head coupled with rigorous legal
research, rather than rhetorical tricks, will turn a case in your favor.
It is critical to read every legal document you come across with care. Bad
reasoning can seem persuasive at first glance. Logical fallacies are especially

33. For a discussion of informal fallacies, also known as material fallacies, see ENGEL , supra note
7, at 89-245. For a discussion of formal fallacies, see IRVING M. COPI & CARL COHEN , INTRODUCTION TO
LOG IC 261-66 (1994).
34. COPI & COHEN , supra note 33, at 219-24.
35. The fallacy of the personal attack, called an ad hominem in Latin, diverts attention away from
the question being argued by focusing instead on those arguing it. Id. at 198.
36. Id. at 209.

12

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

hard to spot in briefs, memos, and court opinions because of the dense writing
and complex fact patterns. Yet the effort is worthwhile. The ability to detect
and avoid logical missteps will improve your writing immensely and develop
your ability to think like a lawyerthe skill that professors and partners so
admire.
II. INDUCTIVE REASONING: GENERALIZATIONS
Deductive reasoning and its adherence to the Socrates is Mortal type
of syllogism is the spine that holds our legal system together. Justice Cardozo
estimated that at least nine-tenths of appellate cases could not, with the
semblance of reason, be decided in any way but one because the law and its
application alike are plain, or the rule of law is certain, and the application
alone doubtful.37 After more than four decades on the bench, Judge Aldisert
can confirm that Justice Cardozos statement remains true today. In the
language of logic, this means that practicing lawyers spend most of their time
worrying about the minor premises of syllogisms (i.e., can the facts of the case
be fit into the territory governed by a particular rule?).
In law school, however, you will be asked to concentrate on the ten
percent (or less) of cases that cant be resolved so easily. In the classroom,
knotty and unsettled questions of law predominate. Where an issue of law is
unsettled, and there is no binding precedent to supply a major premise for your
syllogism, deductive logic is of no use to you. By focusing on such cases,
your professors will drag you kicking and screaming into the land of
induction, the second category of logic.
Inductive generalization is a form of logic in which big, general principles
are divined from observing the outcomes of many small events.38 In this form
of inductive logic, you reason from multiple particulars to the general. To see
how this works, suppose that you are asked to determine whether all men are
mortalthe premise of the first syllogism we discussed. If nobody hands you
the simple statement All men are mortal, and you lack a way of deducing it,
you have to turn to inductive reasoning. You might use what you know about
particular men and their mortality as follows:

37. BENJAMIN N. CARDOZO , THE NATURE OF JUDICIAL PROCE SS 164 (1921).

38. See generally JOHN H. HOLLAND ET AL ., INDUCTION: PROCESS OF INFERENCE, LEARNING , AND
DISCOVERY (1986). For an extended discussion on inductive inference in the law, see Dan Hunter, No
Wilderness of Single Instances: Inductive Inference in Law, 48 J. LEGAL EDUC . 365 (1998).

2007]

LOGIC FOR LAW STUDENTS

13

Plato was a man, and Plato was mortal.

Julius Caesar was a man, and Julius Caesar was mortal.
George Washington was a man, and George Washington was mortal.
John Marshall was a man, and John Marshall was mortal.
Ronald Reagan was a man, and Ronald Reagan was mortal.
Therefore, all men are mortal.

The principle underlying this way of thinking is that the world is

sufficiently regular to permit the discovery of general rules. If what happened
yesterday is likely to happen again today, we may use past experience to guide
our future conduct. The contrast with deductive reasoning is stark. Whereas
syllogisms are mechanical and exactif the premises are true and properly
assembled, the conclusion must be trueinductive logic is not so absolute.39
It does not produce conclusions guaranteed to be correct, no matter how many
examples scholars assemble. Thousands of great men may live and die each
year, but we will never know with absolute certainty whether every man is
mortal. Thus, inductive reasoning is a logic of probabilities and generalities,
not certainties. It yields workable rules, but not proven truths.
The absence of complete certainty, however, does not dilute the
importance of induction in the law. As we stated at the outset, we look to
inductive reasoning when our legal research fails to turn up a hefty, hearty
precedent that controls the case. When there is no clear statuteno governing
authorityto provide the major premise necessary for a syllogism, the law
student must build the major premise himself. To use Lord Diplocks phrase,
this requires him to draw upon the cumulative experience of the
judiciarythe specific holdings of other cases.40 Once he has assembled
enough case law, he tries to fashion a general rule that supports his position.
You might wonder how this works in the real world. Lets start with
something mundane. Suppose a professor asks you to determine what happens
to the contents of a jointly-leased safe deposit box if one of the lessees dies
unexpectedly. Do all of the contents pass to the survivor, or does the dead
mans estate claim his possessions? The Oklahoma Supreme Court faced this
question in Estate of Stinchcomb.41 Finding that the state had no binding case
law on point, the court turned to inductive reasoning. Its research
demonstrated that judges in Illinois, Nevada, and Maryland had all ruled in

39. For a discussion on the differences between inductive and deductive logic, see COPI & COHEN ,
supra note 33, at 57-61.
40. Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004, 1058 (H.L.).
41. 674 P.2d 26 (Okla. 1983).

14

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

favor of the dead mans estate. From these individual examples, the
Oklahoma Supreme Court inferred the general rule that a joint lease in and
of itself alone, does not create a joint tenancy in the contents of the box.42
Inductive generalizations, then, are easy enough to understand. You can
get in trouble using them, however. Most importantly, you must be careful to
assemble a sufficient number of examples before shaping a far-reaching rule,
or you will be guilty of the fallacy of hasty generalization.43 In logic-speak,
this fallacy occurs when you construct a general rule from an inadequate
number of particulars.44 It is the bugaboo of inductive reasoning and often
surfaces in casebooks and classroom discussions, as well as on TV talk-shows
and in newspaper editorials. Think about your overeager classmates who rely
on nothing more than their personal life experiences to justify outlandish
policy proposals. Theyre often guilty of creating bogus general rules from
exceptional circumstances. Judges, lawyers, and law students all must be
careful not to anoint isolated instances with the chrism of generality.
The difficulty comes in knowing how many instances are sufficient to
make a generalization. Three? Ten? Forty thousand? This is where the art
comes in. As a rule of thumb, the more examples you find, the stronger your
argument becomes. In OConner v. Commonwealth Edison Co.,45 a federal
judge in Illinois lambasted an expert witness for attempting to formulate a
universal medical rule based on his observation of only five patients:
Based on the five patients [Dr. Scheribel] has observed with cataracts induced by
radiation therapy, he developed his binding universal rule that he applied to
OConner, thus committing the logical fallacy known as Converse Accident (hasty
generalization). . . . It occurs when a person erroneously creates a general rule from
observing too few cases. Dr. Scheribel has illogically created a binding universal
rule based upon insufficient data.
For example, observing the value of opiates when administered by a physician to
alleviate the pains of those who are seriously ill, one may be led to propose that
narcotics be made available to everyone. Or considering the effect of alcohol only
on those who indulge in it to excess, one may conclude that all liquor is harmful and
urge that its sale and use should be forbidden by law. Such reasoning is erroneous
. . . .46

42.
43.
accident.
44.
45.
46.

Id. at 29-30.
See, e.g., ENGEL , supra note 7, at 137-40. Hasty generalization is sometimes called converse
WILLIAM L. REESE , DICTIONARY OF PHILOSOPHY AND RELIGION 168 (1980).
807 F. Supp. 1376 (C.D. Ill. 1992).
Id. at 1390-91.

2007]

LOGIC FOR LAW STUDENTS

15

Dont let yourself make the same mistake.

Raw numbers are not enough to give you a reliable generalization,
however. Consider this classic blunder: In 1936, Literary Digest magazine
conducted a massive polling effort to predict the outcome of the Presidential
election between Alf Landon and Franklin Roosevelt. The Digest polled well
over two million people, and the vast majority indicated they would vote for
Landon (keep in mind that modern news organizations base their polls on the
responses of 1,000 people). In the actual election, however, Roosevelt won
523 electoral votes and Landon received only eight. How did Literary Digest
get it so wrong when it had crafted its rule from a massive number of
particular examples? It seems the Digest focused its polling efforts on car
ownersan unrepresentative group of the American public in 1936.47 From
this example, it should become clear that the strength of an inductive argument
rests not only on the number of examples you turn up to support your
generalization, but also on the representativeness of the sample size. Keep
this in mind when your opponent makes an argument based solely on the use
of statistics, as is the case in many antitrust, securities, and discrimination
claims.
You will never completely escape the risks posed by the fallacy of hasty
generalization. We can never know with certainty that an inductive
generalization is true. The best that can be hoped for is that expert research
and keen attention to statistics will divine workable rules that are grounded in
the wisdom of human experience. If your professor demands absolute
certainty of you, youll have to explain to him that it cannot be achieved, at
least not with an inductive generalization. Notwithstanding its shortcomings,
inductive generalization remains a vital tool, because the ability to shape
persuasive legal arguments when no clear precedent exists is often what
separates a star attorney from your run-of-the-mill ambulance chaser.

47. The Digest composed its polling list from telephone books and vehicle registrations. In 1936,
when only 40% of households owned a telephone, these lists included only the wealthiest Americans. In
the past such data had provided accurate predictions because rich and poor voters tended to cast similar
votes. However, during the Great Depression economic class became a key indicator of voting behavior.
The Literary Digest had successfully predicted the winner of every presidential election since 1916. In the
past such data had provided accurate predictions because rich and poor voters tended to cast similar votes.
However, during the Great Depression economic class became a key indicator of voting behavior. DAVID
L. FAIGMAN ET AL ., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY
3-2.2.1 n.15 (1997).

16

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

III. ANALOGY 48
Anyone who has struggled through a first-year torts course knows that
hypothetical questions play a central role in the law school classroom.
Professors invent elaborate factual scenarios and ask students to distill the
correct result from a handful of cases read the night before. Then they change
the situation slightly; does the answer change? Now alter a different
parameter; same result, or a different one? The imaginative fact patterns do
not end with law school;49 judges, too, rely on outlandish hypotheticals to test
the validity of a lawyers argument. Yet, notwithstanding the importance of
hypothetical questions in legal thinking, the ability to manage them remains
poorly taught and rarely practiced. We believe that the careful use of
analogya form of inductive reasoningcan get you past a nasty
hypothetical.50 Analogy can help a budding lawyer advance untested legal
arguments in the classroom and the courtroom. We stress that mastering the
principles of analogy is not just another garden-variety lawyers skill. Rather,
it is one of the most crucial aspects of the study and practice of law.51
Unlike most concepts employed by logicians, the use of analogy is not
confined to the realms of higher mathematics and philosophy.52 Most law
students, and even most laypersons, are familiar with formal analogies of the
Sun is to Day as Moon is to _____? variety. The use of informal, off-thecuff analogies guides most of our own everyday decision-making. I own a
48. Nota Bene: Read this section on analogy and reread and reread it over and over again until you
understand it completely. Do this for two reasons: (a) Analogy lies at the heart of the hypotheticals tossed
your way by the professors; and (b) In many cases the law is clear and the sole question is application of
the facts found by the fact finder to the law, and this requires inductive reasoning by analogy.
49. Such Socratic dialogues remain alive and well in legal education. See Anthony Kronman, The
Socratic Method and the Development of the Moral Imagination, 31 U. TOL. L. REV . 647 (2000) (The
single most prominent feature of . . . American legal education is its heavy reliance on the so-called case
method of instruction. By the case method I mean two things: first, the study of law through the medium
of judicial opinions, . . . and second, the examination of these opinions in a spirit that has often, and aptly,
been described as Socratic.).
50. Although we find it appropriate to classify analogy as a form of inductive reasoning, not all
logicians agree. See, e.g., BRENNAN , supra note 10, at 154 (Current logicians . . . tend to regard all
inductions as . . . inferences to generalizations [rather than reasoning by analogy].).
51. ALDISERT, supra note 5, at 96. But see Richard A. Posner, Reasoning by Analogy, 91 CORNE LL
L. REV . 761 (2006) (book review). Judge Posner argues that while analogy is important in legal rhetoric
as a mode of judicial expression it is a surface phenomenon that obscures the role of policy considerations
in judicial opinions. Id. at 765, 768. See generally LLOYD L. WEINREB, THE USE OF ANALOGY IN LEGAL
ARGUMENT (2005).
52. Analogies also are commonly used to enliven descriptions. The literary uses of analogy in
metaphor and simile are tremendously helpful to the writer who strives to create a vivid picture in the
readers mind. IRVING M. COPI & KEITH BURGE SS-JACKSON, INFOR MAL LOG IC 164 (1996).

2007]

LOGIC FOR LAW STUDENTS

17

Honda Civic that doesnt overheat, so I conclude that my friends Honda Civic
will never overheat. My eyes dont water when I cut an onion; I conclude that
my brothers eyes wont water either. This type of reasoning has a simple
structure: (1) A has characteristic Y; (2) B has characteristic Y; (3) A also has
characteristic Z; (4) Because A and B both have Y, we conclude that B also
shares characteristic Z.53 At base, analogy is a process of drawing similarities
between things that appear different.
In the world of the law, analogies serve a very specific purpose.
Attorneys use them to compare new legal issues to firmly established
precedents.54 Typically, this means that a current case is compared to an older
one, and the outcome of the new case is predicted on the basis of the others
outcome.55 Edward Levi, the foremost American authority on the role of
analogy in the law, described analogical reasoning as a three step process: (1)
establish similarities between two cases, (2) announce the rule of law
embedded in the first case, and (3) apply the rule of law to the second case.56
This form of reasoning is different from deductive logic or inductive
generalization. Recall that deduction requires us to reason from universal
principles to smaller, specific truths. The process of generalization asks us to
craft larger rules from a number of specific examples. Analogy, in contrast,
makes one-to-one comparisons that require no generalizations or reliance on
universal rules.57 In the language of logicians, analogy is a process of
reasoning from the particular to the particular.
An example might help to clarify the distinction. Imagine you are asked
to defend a client who received a citation for driving a scooter without a
helmet. After scouring Westlaw, you find theres no controlling statute.
There are, however, two precedents that could influence the result. One
opinion holds that motorcyclists must wear helmets; the other case says that
a helmet is not required to operate a bicycle. Does either control the issue in
your case? Without a clear universal rule or past cases on point, deductive
logic and inductive generalizations are of little help. Instead, you must rely
on the power of analogy to convince a judge that helmet laws dont apply. To
defend your client, you must suggest that driving a scooter is similar to riding
53. Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV . 741, 743 (1993).
54. STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING 28 (1985); EDWARD
H. LEVI, AN INTRODUCTION TO LEGAL REASONING 9-15 (1949).
55. See Dan Hunter, Reason is Too Large: Analogy and Precedent in Law, 50 EMORY L.J. 1197,
1202 (2001).
56. LEVI, supra note 54, at 1-2.
57. Dan Hunter, Teaching and Using Analogy in Law, 2 J. ASSN LEGAL WRITING DIRECTORS 151,
154 (2004).

18

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

a fast bicycle. You might argue that small scooters cant go faster than
well-oiled road bikes. Thus, a scooter presents no more danger to its operator
or other drivers than a bicycle. You could also argue that scooters, like bikes,
cant be driven on highways. The process of drawing these comparisons and
explaining why they are important is the heart of reasoning by analogy. The
idea is to find enough similarities between the new case and old precedent to
convince a judge that the outcomes must be the same.
A proper analogy should identify the respects in which the compared
cases, or fact scenarios, resemble one another and the respects in which they
differ. What matters is relevancywhether the compared traits resemble, or
differ from, one another in relevant respects.58 A single apt comparison can
be worth more than a host of not-quite-right comparisons. You might be
wondering how to tell whether a comparison is a fruitful one or whether its
not quite right. Well, that is where art once again enters the picture. As John
Stuart Mill remarked:
Why is a single instance, in some cases, sufficient for a complete induction, while in
others myriads of concurring instances . . . go such a very little way towards
establishing an universal proposition? Whoever can answer this question knows
more of the philosophy of logic than the wisest of the ancients, and has solved the
problem of Induction.59

Notwithstanding the best efforts of logicians, no one has devised a

mathematical equation for determining whether an analogy is strong or weak.
It is a matter of judgment, not mechanical application of a rule.60 Thinking
back to our scooter example, your opponent will argue vigorously that a
scooter resembles a motorcycle because both have quick-starting, gas-powered
engines that are beyond human control. This comparison may strike the judge
as more powerful than yours, convincing him to rule against your client.
The Court of Appeals for the Third Circuit discussed all of these
principles in detail in an important class action antitrust case where the
principal issue on appeal was whether the holding in a case called Newton61
applied to the case at bar:

58. BURTON, supra note 54, at 31. Burton explains, The judge in a law case . . . is not free to
assign importance to the similarities or differences between cases on any ground whatsoever. The judges
duty is to decide that question in accordance with the law. But it is most difficult to give a satisfactory
account of what it might mean in common law adjudication to decide in accordance with the law. This
is where the problem of [relevancy] arises. Id.
59. JOHN STUART MILL, A SYSTEM OF LOG IC , RATIOCINATIVE AND INDUCTIVE 206 (8th ed. 1916).
60. COPI & BURGE SS-JACKSON, supra note 52, at 127.
61. Newton v. Merrill Lynch, 259 F.3d 154 (3d Cir. 2001).

2007]

LOGIC FOR LAW STUDENTS

19

For Appellants argument to prevail, therefore, they must demonstrate that the
facts in Newton are substantially similar to the facts in the case at bar, what logicians
call inductive reasoning by analogy, or reasoning from one particular case to another.
To draw an analogy between two entities is to indicate one or more respects in which
they are similar and thus argue that the legal consequence attached to one set of
particular facts may apply to a different set of particular facts because of the
similarities in the two sets. Because a successful analogy is drawn by demonstrating
the resemblances or similarities in the facts, the degree of similarity is always the
crucial element. You may not conclude that only a partial resemblance between two
entities is equal to a substantial or exact correspondence.
Logicians teach that one must always appraise an analogical argument very
carefully. Several criteria may be used: (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); or (3) the acceptability will be influenced by
the relevance of the purported analogies. [Citing logicians].
For Appellants to draw a proper analogy, they had the burden in the district court,
as they do here, of showing that the similarities in the facts of the two cases outweigh
the differences. They cannot do so, for two significant reasons. First, in Newton it
was clear that not all members of the putative class sustained injuries; here, all
members sustained injuries because of the artificially increased prices. Secondly, in
Newton there were hundreds of millions of stock transactions involved, thus making
the putative class extremely unmanageable; here, an astronomical number of
transactions is not present. [Thus, their argument fails.]62

Lets turn to other examples of the process of analogy. Imagine you

discover that Able Automobile Company is liable for violating the antitrust
laws by requiring a tie-in purchase of a refrigerator manufactured by Mrs.
Able with the purchase of any Able car. It is not difficult to see by analogy
that liability also would follow from these facts: Baker Automobile Company
requires a tie-in purchase of a refrigerator manufactured by Mrs. Baker if you
want to buy a Baker Mustang.
But consider the following: State College had a championship basketball
team last year. Team members came from high schools A, B, C, and D. State
College has recruited new players from high schools A, B, C, and D for this
years team. Therefore, State College will have a championship basketball
team this year. Is the resemblance relevant? We must ask if the
resemblanceplayers from the same high schoolsis meaningful. Does it
help us get to the conclusion we seek to draw? If one good player came from
a particular school, does that mean that another player is likely to be similarly
good? Probably not, unless the high school is extremely unusual and has only

62. In re Linerboard Antitrust Litig., 305 F.3d 145, 157 (3d Cir. 2002) (citations omitted).

20

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

good basketball players. More likely, what we have here is an analogy based
on irrelevant similarities, and such an analogy is of no use at all.63
As mentioned earlier, law professors love to test your ability to work with
analogies by inventing grueling hypotheticals. They do this for a few reasons.
First, as weve already discussed, the imagined fact patterns force you to
grapple with questions of law that arent amenable to syllogisms. Second, a
professor can easily and repeatedly change the facts of a hypo, allowing him
to ask questions of many students and to probe the boundaries of a particular
legal issue. Finally, the fear of getting trapped in the tangle of a knotty
question encourages students to study the law with care and to absorb its
details. If you do find yourself in the Socratic spotlight, remember that the
basic principles of analogy; they can be your lifeline. Begin by discussing the
facts of a similar case that you are familiar with, and then lay out particulars
of the hypothetical the professor has asked. Draw as many comparisons
between the two cases as you can. If the relevant similarities outweigh the
relevant differences, the outcomes of the cases should be the same. The more
practice you get working with analogies, and the more adept you become at
articulating why certain similarities or differences are relevant, the better you
will fare when its your turn to face the music.
IV. LOGICAL LIMITS : WHEN THERE IS MORE TO THE STORY
We hope we have convinced you that logic is the lifeblood of the law, and
that understanding basic logical forms will assist you both in law school and
in your practice as a lawyer. We would be remiss, however, if we were to
send you out into the world without acknowledging that there is more to the
law than assembling logical expressions.64
Consider the following:

63. The fallacy of weak analogy occurs when the compared objects bear little resemblance to each
other. COPI & BURGE SS-JACKSON, supra note 52, at 126-27.
64. We are aware of criticisms suggesting that logic has little place in legal reasoning. With the rise
of legal realism, many observers feel that politics, not logic, drives the outcome of most cases. See, e.g.,
Derrick A. Bell, Whos Afraid of Critical Race Theory?, 1995 U. ILL . L. REV . 893, 899-900 ([L]egal
precedent [is] not a formal mechanism for determining outcomes in a neutral fashionas traditional legal
scholars maintainbut is rather a ramshackle ad hoc affair whose ill-fitting joints are soldered together by
suspect rhetorical gestures, leaps of illogic, and special pleading tricked up as general rules, all in the
service of a decidedly partisan agenda . . . .).

2007]

LOGIC FOR LAW STUDENTS

21

All federal judges are body builders.

Judge Aldisert is a federal judge.
Therefore, Judge Aldisert is a body builder.

Whats wrong with this statement? Its a rock-solid syllogism, adhering to the
blueprint of logical validity expressed by the Socrates syllogism. Just the
same, Judge Aldisert does not spend much time pumping iron. You see the
problem, of course: the major premise is false. Not all federal judges are body
builders. In fact, we doubt any of them are. The point is an obvious but
important one: make sure your premises are true. If you use an untrue premise
as a lawyer, its an invitation to the other side to pillory you. If you do so as
a judge, you may fashion a dangerous precedent. Consider the infamous Dred
Scott case. The crucial syllogism used by the majority was as follows:
Major Premise: At the time of the adoption of the Constitution, all states considered
members of the black race to be inferior and incapable of citizenship and of suing in
federal court.
Minor Premise: Dred Scotts ancestors at the time of the Constitution were members
of the black race.
Conclusion: Therefore, Dred Scotts ancestors were considered to be inferior and
incapable of citizenship and of suing in federal court.

As discussed in Part I, the dissenting opinion pointed out that only some
state legislatures labeled blacks inferior at the time of the adoption of the
Constitution. Other statesnamely New Hampshire, Massachusetts, New
York, New Jersey and North Carolinamaintained that all free-born
inhabitants, even though descended from African slaves, possessed the right
of franchise of electors on equal terms with other citizens.65 Once the all in
the majoritys major premise is replaced with some, the syllogism fails to
hold water.
Separately, logic is not the whole game. Even if your premises are true
and your logical statements constructed properly, it is crucial to recognize that
judges are motivated by more than the mandates of logic. As Judge Aldisert
has said, [w]e judges come to our robes bearing the stigmata of our
respective experiences.66 Judges have notions of how things should beof
what is wrong and what is rightand often strive to do justice as much as to
fulfill the mandates of precedent. They have biases, too. In reading cases,

65. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 572-73 (1856) (Curtis, J., dissenting).
66. United States v. Jannotti, 673 F.2d 579, 612 (3d Cir. 1982).

22

UNIVERSITY OF PITTSBURGH LAW REVIEW

[Vol. 69:1

writing briefs, and arguing before a court, you will be more effective if you
flesh out the logical bones of your arguments and attempt to appeal to the
judge in other ways as well.
But always bear in mind: An argument that is correctly reasoned may be
wrong, but an argument that is incorrectly reasoned can never be right. You
may find the discipline of parsing legalese into logical forms to be timeconsuming and arduous at first, but as you become more comfortable with
logics framework, you will find that the exercise helps you more efficiently
peel a case back to its essence. A solid footing in logic will help you feel
more secure when you find yourself in a complex doctrinal thicket. And while
the fundamentals of logic laid out in this article will not give you a magic
carpet on which you can float above the legal briar patch, we believe they will
give you a machete that will help you start hacking your way through the
tangle.

The Place of Logic in the Law

Author(s): Morris R. Cohen
Source: Harvard Law Review, Vol. 29, No. 6 (Apr., 1916), pp. 622-639
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1326498 .
Accessed: 29/01/2015 07:38
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to
Harvard Law Review.

http://www.jstor.org

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

622

HARVARD LAW REVIEW

THE PLACE OF LOGIC IN THE LAW

IT is a curiousfact that while critics and reformersof the law formerly used to take their stand on self-evident truths, and
eternal principles of justice and reason, their appeal now is predominantly to vital needs, social welfare,the real or practical need
of the times, etc. Those who believe law to be not an isolatedisland
in vacuo but a province of the life we call civilization, occupying
similar soil and subject to the same changeof intellectualseason as
the other provinces,will see in the fact noted above nothing but an
indicationof the generalpassingout of fashionof the old rationalism
or intellectualism.
The seed of the protest against the over-emphasisof the logical
element in the law was planted by Von Jhering and Justice Holmes
over a generationago.' But legal science in this country was then
so far behindthat of Germanythat the logical elaborationand systematizationof the law embodiedin the work of Langdelland Ames
proved the more pressingneed and obtained the right of way. But
there are many indications that the forces of anti-intellectualism
are now rising in Americanlegal thought, and they are sure to find
powerfulsupport in the public impatiencewith legal technicalities.
Imitators or followersseldom possess the many-sided catholicity
of the pioneer or master. Thus Von Jhering and Justice Holmes,
while emphasizingother factors, by no means deny all importance
to legallogic. A largepart of Von Jhering's" Geist"s2 devoted to a
logical analysis of the method and general ideas of the law; and
Justice Holmes is carefulto emphasizethe function of generalideas
in the developmentof the law (e. g., the idea of identity in succession after death and inter vivos),3 and his book abounds in illustra-

tions of how difficult legal problems can be cleared up by just

logical analyses.4 But the new, more zealous crusaders against
1 VON JEERING,GEISTD. ROM.RECHT, iii, ? 69. ScHiEz u. ERNST,ch. i and pts.
iii and iv. HOLMES, COMMONLAW, ch. i.
2 ??44-46, 59-68, and esp. ??45, 64, 65.
T3
TrE COMMONLAW, ch. x. Note the quotation at the end of the preface, and the
important place of "reasons" in the development of the law, pp. A, 36.
4 See especially pp. 214, 2I9, 220, 239, 289.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGICIN THE LAW

623

legal idealogy are less cautious, and are inclined to deny all value
to logic and general principles.5 Now it is a rather simple task to
show the inadequacies of the proposed substitutes for the traditional principlesof legal science. Sound common sense, the lessons
of experience,the unspoiledsense of justice, the teachings of the as
yet to be established science of sociology, or the somewhat elusive
and perhapsaltogethermythical will of the dominant class, cannot,
without the aid of a logical legal technique, help us elaborate the
laws of gifts, sales, mortgages, or determine the precise liability of
a railroadcompany to those who use its sleeping car service. It is
also easy enough to refute these new crusaders out of their own
mouths and show that they themselves attach great value to a
clear and logically consistent elaborationof the law.6 But such easy
refutations, while they may be just, are seldom illuminating, unless we examine the situation with some thoroughness. This may
lead us into the supposedly foreign fields of logic and metaphysics.
But at the time when the foundationsof our legal system are questioned both inside and outside of the legal fraternity, it would be
only the wisdom of the ostrich which would counsel us to refrain
from entering into these fields because, forsooth, the old tradition
says that law is law, and has nothing to do with any other field of
human inquiry. It may be reassuringto orthodox legal scholarship to note that the foremost representatives of the exact and
natural sciences have now outgrown the childish fear of metaphysics as the intellectual bogy - witness the writings of Russell,
Poincare, Duhem, Ostwald, and Driesch.

A suggestive parallel can be drawn between the functionsof the

law and of natural science. Both facilitate transactionsby increasing our reliance on the future. We build our modern houses,
bridges, and machinerybecause science makes us more certain that
these structureswill withstand the variations of pressure,etc. We
enter into business because we expect that people will continue to
5 WUTSTENDORFER,
DIE DEUTSCHE RECHTSPRECHUNG,2 23; FUCHS, DIE GEMEINSCHADLICHKEITDER KONSTRUKTIVENJURISPRUDENZ, chs. i and ii; BENTLEY, THE
AND THE LAW,
PROCESSOF GOVERNMENT,ch. i, and BROOKSADAMS, CENTRALIZATION

lectures i and ii.

6

CENTRALIZATIONAND THE LAW, 39, 4I, 43; WtSTENDORFER,

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

2IO-222.

624

HARVARD LAW REVIEW

desire certain commodities,and we count on the state to continue

to protect us against robbery. We sell on credit not only because
we expect that most people will be moved (by habit or conscience)
to pay, but also because the law provides us with a machineryfor
collecting what is due. If our debtors also know that this machinery exists, they will pay more readily and the expense of using
this legal machinery will be accordingly reduced. That the law
should be readily knowableis, thus, essential to its usefulness. So
far is this true that there are many inconveniencesor injustices in
the law which men would rather suffer than be paralyzed in their
action by uncertainty. Primitive law, i. e., all legal systems uninfluencedby Greek science, try to achieve this certainty by fixed
rules or dooms enumerating specific actions and their consequences, just as they store up wisdom in isolated saws or proverbs.
Clearly the multitudinous and complicated relations of modern
life could not possibly be regulated by such a method. Like the
classical Romans, we utilize, instead, that most wonderfuldiscovery, or invention,of the Greeks rationaldeductivesystem. We try
to reduce the law to the smallest numberof generalprinciplesfrom
which all possible cases can be reached,just as we try to reduceour
knowledge of nature to a deductive mathematical system. This
rational form also gives the law the appearanceof complete freedom from arbitrarywill and thus satisfies the modern demand for
equality in the enforcementof law.7
The law, of course, never succeeds in becoming a completely deductive system. It does not even succeed in becomingcompletely
consistent. But the effortto assumethe form of a deductive system
underlies all constructive legal scholarship. In our own day, for
instance, Thayer's general views on evidence and Wigmore'sclassical treatise on the subject have transformeda conglomeration
of disconnected rules into something like a system. Ames' doctrine of unjust enrichmenthas brought togethera number of artificially tacked on appendagesto the law of contractinto the somewhat coherent body of law known as quasi-contract. Forty years
ago we had so little of a general theory of torts that if anyone had
thought of writing a treatise on the subject he might simply have
treated of a number of torts in alphabetic order. To-day we have
7 Arbitrary discretion is excluded by the certainty resulting from a strict scientific method." SAVIGNY, VOCATION OF OuR AGE, P. I5I.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGIC IN THE LAW

625

not only a generaltheory of liability, but there is a markedtendency

to make the law of torts and the law of contracts branches of the
law of obligations. This effort at generalization and system has
always been the task of the jurist. We use the notions of property,
contract, or obligation so often now that we are apt to think that
they are "as old as the law itself." But legal history shows clearly
enoughthat the notion of propertycame as a result of a long process
of unification of diverse laws against robbery. A great deal of
material had to be eliminated before the abstract idea of property
could be extracted. The idea of contract is so late that even as
developed a legal system as the Roman had no general law of contract, but merely laws of stipulation depositum, pignus, locatio con-

ductio,etc. The notion of possession seems to the classical jurists

simply one of fact. But the possessory remedies did not originate
in the principle of possession but rather in a number of diverse
situations.8

In thus endeavoringto make the law systematic, jurists are not

merely pursuing their own purely theoretic or scientific interest.
They are performinga duty to the communityby thus transforming
the law. A legal system that works with general principles has
powerfulinstruments. Just as the generalizedarithmeticwhich we
call advanced mathematics has increased manifold our power of
solving physical problems, so a generalizedjurisprudenceenlarges
the law's control over the diversity of legal situations. It is like
fishing with large nets instead of with single lines.
As nature has other cares besides letting us paint her deductive charm, she constantly reveals aspects that hamper or complicate our beautiful analytic equations. So, also, the affairsof practical life generatesituations which mock our well-intentionedefforts
to reduce the law to a rational system. In the presenceof these, as
of other seemingly insurmountable obstacles, human frailty is
tempted to blink at the difficulties. So urgent is the need for assured first principles that most people resent the service which
the skeptical-minded- the stray dogs of the intellectual worldrenderby showing the uninhabitablenessof our hastily constructed
legal or philosophickennels. In the legal field, the blinking at the
practical difficultiesis facilitatedby the ready assurancethat if our
principles are just it is none of our fault if any inconveniencere8 DERNBURG, RoM. RECHT,

? 220.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

626

HARVARD LAW REVIEW

suits. Fiat justitia pereat mundus, is a very edifying excuse for

refusing to reexamine our principlesin the light of the harsh results to which they lead.
Accordingto the prevailingpopulartheory - a theory for which
popular philosophyis largely indebted to a famous lawyer, Francis
Bacon - facts are " out there" in nature and absolutely rigid,
while principlesare somewhere"in the mind" underour scalps and
changeable at will. According to this view scientific theories are
made to fit preexisting facts somewhat as clothes are made to fit
people. A single inconsistentfact, and the whole theory is abandoned. Actually, however, facts are not so rigid and theories not
so flexible; and when the two do not fit, the process of adaptation
is a bilateral one. When new facts come up inconsistentwith previous theories, we do not give up the latter, but modify both the
facts and the theory by the introductionof new distinctions or of
hypothetical elements. If the facts of radiation do not fit in with
the theory of the conservationof energy, an ether is invented and
endowed with just as many propertiesas are necessary to effect a
reconciliation,though in the end this results in inordinate complexity. Similarlylegal theories, attempting to assimilatenew facts
by stretching old rules and introducing distinctions and fictions,
become so complex and full of arbitrary elements that the very
end of legal system is thereby defeated. It is artificialcomplexity
rather than inconsistencywith facts that caused the abandonment
of the Ptolemaic astronomyand is causing the abandonmentof the
physics of the ether to-day. The classical system of common-law
pleading, based on a few self-evident principles, was just such a
system. It fell preciselybecause, as the forms of actions expanded
to include the new industrial order, the system became so choked
with artificial distinctions and fictions that a conservative and
long-sufferingpeople had to sweep it all away. Similarly has the
law of employers'liability, based on a simple principle- no responsibility without fault - grown to such monstrous complexity (witness Labat's voluminousbook) that legislationis sweepingit away.
The above parallel between natural science and legal system
should, of course, be correctedby noting the important differences
between the two. Legal principlesare not so simple or so readily
applicableto single cases as are the principlesof physics; nor are
the facts of the legal order so definite and so rigid as those of the

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGIC IN THE LAW

627

physical order. Crucialexperimentsare possible in science. Single

experiments have sometimes caused such difficulties to reigning
theories as to lead to their ultimate abandonment. The facts of
physics admit of descriptionin terms of number and can be indefinitely repeated, whereas the facts of the legal order, "practices,"
or decisions, can always be condemned and disregardedas wrong
in principle. Nevertheless, enough has been said above to indicate
that the role of deduction is not an accidental incident in law and
natural science but is rather an essential part of their life.
II
In modern times the widespreadopinion has grown up that deduction is incapable of genuinely extending our knowledge and can
serve at best only as an ornament of exposition. It is sometimes
thought that the introductionof the "case method" in law teaching marks the entrance of inductive scientific methods in law.
The latter view is, however, obviously a misapprehension. Both
Langdell and Ames regardedthe case method as a sound pedagogic
device, but in no way doubted the existence of legal principles according to which cases should be decided. Langdell even asserted
that the numberof such principlesis very small.9 It is from an entirely different quarter that the whole of traditional legal science
has, because of this very belief in principles,been attacked as scholastic and out of harmony with the methods of modern science.'0
Whatever may be these critics' knowledgeof modern science, they
certainly have a very vague idea of Scholasticism,and use the term
as a locus for all that is intellectually undesirable,a sort of inferno
for all ideas to which they are opposed. Now there is one virtue
which no one who has ever read Aquinas or Duns Scotus denies
them, and that is clarity and consistency- a virtue which, if not
sufficientfor admissioninto the modern juristic heaven, is at least
not to be altogether despised. Moreover, every student of the
history of thought knows that the contrast between modernscience
and medieval philosophyis not to be dismissedby the mere shibboleth of induction or deduction. The founders of modern science
Copernicus,Kepler,Galileo,Huygens,Descartes, and Newton-cer9 Preface to the first case book on Contracts.
10 Bozi, DIE WELTANSCHAUUNGDER JURISPRUDENZ,and BROOKS
ADAMis
and BENTLEY, op. cit. See also note in JUNG, DAS PROBLEMDES NAT#RLICHEN RECHTS, p. 172.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

HARVARD LAW REVIEW

628

tainly did not despisededuction. The history of science completely

belies the dogma as to the fruitlessness of deduction, and shows
many important physical discoveries,such as Maxwell's discovery
of the electromagnetic character of light, brought about by deductive or mathematical procedure. The great apostle of induction was Bacon - a good lawyer, trained in the handling of cases
in the Inns of Court, but one who made no contributionat all to
any natural science.11 The present apotheosis of induction arose
in the middle of the nineteenth century as a result of a violent
reaction against the frenzied excesses brought about by the classical German philosophies of Fichte, Hegel, and Schelling. It
became a dogma of popular philosophy through the popularity of
Mill's "Logic". Now Mill was not himself a scientist. He was an
administrator

an official of the East India Company

and his

acquaintancewith natural science was gathered from such secondhand sources as Whewell's "History of the Inductive Sciences".
But so strong has become the hold of Mill's simple formule on
popular thought that even men of science have accepted his account of scientific method - which is not surprisingif we remember that healthy men or athletes are not necessarilygood physiologists or trainers. The actual procedure,however,of naturalas well
as of legal science involves constant reliance on principles, and is
incompatible with Mill's nominalism, i. e., the assumption that
only particularsexist in nature.
It may seem a bold and reckless statement to assert that an
Adairv. United
adequatediscussionof cases like Berryv. Donovan,'2
v. Boston and M1aineR.,14 involves the
States"3or Commonwealth
whole medieval controversy over the reality of universals. And
yet, the confident assertion of "immutable principles of justice
inheringin the very idea of free government" made by the writersof
these decisions,'5and the equally confidentassertionof their critics
that there are no such principles,' show how impossible it is to
11 Harvey, the discoverer of the circulation of the blood, said of Bacon: "He writes
science like a Lord Chancellor."
12 i88 Mass. 353, 74 N. E. 603 (igo5).
13 208 U. S. i6i
14

222

(I907).

Mass. 206,

ii0

n Twining v. N. J.,
15

531,

211

N. E.

264 (I915).

U. S. 102

(1908).

CENTRALIZATION
AND THE LAw, pp. 20ff.
533.

Dean Lewisin 6i U. OFPA.L. Rv.,

I9I3.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGICIN THE LAW

629

keep out of metaphysics. Can we dodge the questionby saying that

while legal principles are unchangingthe law is a practical or progressive science?17 How can a principle or undisputed formula
remainthe same if all the cases to which it is to be applied are constantly changing?18 You may decide to enter the realm of metaphysics or not, just as you may decide to go to church or not; but
you cannot deny that an intelligent decision in either case demands
considerablethought.
The matter is not very difficult if we refuse to be browbeaten
by a word like " reality," which perhaps representsnothing definite
except a certain emotional afflatus. It ought to be quite clear that
abstractionsand universalsexist in every sense in which individual
things can be said to exist, and by the same evidence. If any statement like, "Smith is white and an honest man" is true, whiteness,
honesty, and manhood must exist as truly as Smith. Similarly,
if it is true that one body is equal to, greater than, or less than
another, the relations of equality, greater than, or less than, exist
just as truly as the bodies betweenwhich they hold. If the results of
logical and mathematical reasoning are observed to hold true of
nature, it seems more proper to say that nature is logical and
mathematical than to suppose that logical and mathematical principles are just words having no meaning in nature, or that they
have a dubious existence "in the mind only" (the "mind" being
conceived as outside of nature). The difficultywhich most people
have in conceiving of the existence of universals is due to the
tendency to reify all relations, i. e., to think of these relations or
universals as if they were themselves additional things, instead of
what they are defined to be, viz., qualities or relations of things.
This shows itself in the naive question, "Wheredo these universals
exist?" as if universals were particular entities occupying space.
In brief, it seems that the actual procedure of natural and legal
science demands the doctrine that universals do exist, but that
they exist as universals,not as additional individual things. Surely
a barren if somewhat truistic doctrine, you may say. But the
followingmay show that it offers us a clew whereby to distinguish
the use from the abuse of logic in the law.
17
18

National Protection Association v. Cumming, I70 N. Y. 3i5, 63 N. E. 369

Professor Frankfurter in 29 HARv. L. REV. 369.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

(I902).

630

HARVARD LAW REVIEW

III
Every science must use logic to test whether certain conclusions
do follow from given premises. But that which distinguishesone
science from another, e. g., law from physical chemistry, is the
subject-matter,the axioms and postulates from which conclusions
are drawn. The subject-matterof the law is the regulationof the
conduct of individuals living in these more or less permanent relations which we call society. Now, from the point of view of
logic the existence of men in society or their desire to regulatetheir
mutual relations is just as brute an empirical fact as that water
expands when cooled near the freezing point. All metaphysical
philosophiesof law, like Stammler's,which pretend to have no empirical elements at their basis, thus really attempt the logically
impossible. You cannot construct a building merely out of the
rules of architecture. As a matter of fact, all metaphysicalphilosophies of law do smugglein, in more or less disguisedform, the main
material facts of the social order. In this they are assisted by a
fact that empiricists- especially those intoxicated with the doctrine of evolution - do not fully realize, viz., the large fund of
common humanity possessed by all peoples whose history we can
study. Private law especially deals with those traits of human
nature that have changed least in the comparativelyshort period
that is covered by the whole of legal history. Our history "starts
with man full grown. It may be assumed that the earliest barbarian whose practices are to be consideredhad a good many of the
same feelings and passions as ourselves."19 Thus is explainedthe
paradoxicalfact that metaphysicalphilosophersof law, who try to
ignore or rise high above the factual order, are frequently more
productive of genuine social insight than those who are lost in the
multitudinous but unimportant details of historic or ethnologic
jurisprudence.
The law, at any given time, is administeredand expoundedby
men who cannot help taking for grantedthe prevalentideas and attitudes of the community in which they live. Even if it were logically, it would certainly not be psychically, possible for any man
to think out an absolutely new system of jural relations. The law
reformerwho urges the most radical change, can justify his pro19 HOLMES, COMMONLAW, P. 2.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGIC IN THE LAW

63I

posal only by appealingto some actually prevailingidea as to what

is desirable; and the history of the law shows how comparatively
small is the addition or subtraction to the system of jural concepts
and ideas that the most creative judges and jurists have been able
to bring about. There are, therefore,first or fundamental principles of the law which may be regarded as practically or quasi a
priori. But though we cannot avoid relying on principles, the
complex and constantly changing subject-matter requires continuous caution and a humbly open mind to the dangers of the
eternal tendency of all intellectual effort in the direction of oversimplification.
Among the first principlesof the law there are at least two kinds:
(i) axiomsor fundamentalassumptions(a) as to fact, e. g., that men
desire their economic advantage, and are deterred from actions to
which penalties are attached, and (b) as to the aim of the law, e. g.,
that propertyshould be protected, that men should be equal before
the law, etc.; and (2) postulates which are really ways of procedure or methods of analysis and construction,e. g., the distinction
between rights and duties, or between law and equity, the principle
that no man can be his own agent, or that no man can convey more
or a greater estate than that which in law he has. The abuse of
first principles of the first class consists in setting up economic or
political maxims of public policy, which are at best applicableonly
to a given period or historical economic system, as eternal principles for all times. Examples of this may be found in the use of the
principle that the public interest always demands competition, a
free market,and an open shop,and the maxim that only by the separation of powers, checks and balances, and judicial control over
legislationcan liberty be maintained. The fallacy of regardingthese
as eternal first principles is readily detected and has been frequently pointed out in recent times. The fallacy, however, of
setting up what I have called above postulates, as eternal necessities of all legal system, is less easily detected. These postulates
have the appearanceof self-evident truths. But physics has learnt
to regret accepting such seemingly self-evidentpropositionsas that
a thing cannot act where it is not, and modern mathematics has
learned that such seemingly self-evident assertions as that the
whole is greater than a part, or Euclid's parallel postulate, are not
necessarily true. The theoretical sciences now select their funda-

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

632

HARVARD LAW RLVIEW

mental propositionsnot becauseof self-evidence,but because of the

system of consequencesthat follows from them, and a practical
science like the law ought not to despise that procedure.
The abuse of self-evident principlesis at the basis of what the
Germans call Begriffsjurisprudenz,which Professor Pound calls
"mechanicaljurisprudence",20 and also of that which is unsatisfactory in the old natural law. The analysis of a few additional examples may perhaps make my point clearer.
In discussingcreditors'bills in equity, Langdell says: 21 "Indeed,
when a debtor dies, his debts would all die with him, did not positive law interposeto keep them alive; for every debt is created by
means of an obligationimposed upon the debtor,and it is impossible that an obligationshould continue to exist after the obligorhad
ceased to exist." I have italicized the words "interpose" and
"impossible"because these and the later expressionthat the question is "as old as the law itself" bring into relief the underlying
view that the law itself is a logicalsystem in which it is foreverimpossible for a debt to survive the debtor. But if that were so, how
could positive law bring about the impossible? Could positive law
change the rules of arithmetic, or make the diagonal and the side
of a square commensurate?In point of fact the principle in question is not logically necessary at all. It arose at a time when the
creditorcould dispose of the actual body and life of the defaulting
debtor, hence the relationbetween debtor and creditor could have
been entered only by people who personallytrusted each other. If
the law of the XII Tables had allowed an assignmentof a debt, it
would have been socially as serious as if our law allowed an assignment of marital rights. Later on, when the rigorof the old law was
softened, the practical reason why the creditor might not be replaced by another person disappeared, and the debtor-creditor
relation became depersonalizedat one end. The difficultiesin the
way of depersonalizationat the other end were not the logical but
the practical ones of harmonizingthe security of credit and the
maintenanceof family continuity on the basis of inheritance. But
habits of legal thought in regardto the personalcharacterof the
debtor-creditorrelation still produce the familiar difficulties of
subrogation,etc.
20 Pound, Mechanical Jurisprudence, 8 COL.L. REV. 605, KoRNUNOv,Tu
ERAL THEORY OF LAW, ? I5, and BEKK:R, ERNST UND ScHERz,ch. vii.
21 BRIEF SURVEY OF EQUITY JURISPRUDENCE,
P. I26.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

GEN-

THE PLACE OF LOGIC IN THE LAW

633

Another illuminatinginstance of the confusion between actually

existent and logically necessary rules of law is to be found in that
most sagacious of the great practical Roman jurists, Papinian.
The post-liminium, as is well known, was instituted to the end
that citizens might not have their civil rights diminished because
of unavoidable absence due to state service. Now, if one, before
acquiring title by usus, is captured by the enemy, should possession be restored to him? No, says Ulpian,22"for possession is for
the most part a matter of fact, and matter of fact is not included
in the scope of post-liminio." The reasoninghere seems conclusive.
The law can restoreold rights, it cannot restore past states of fact.
Reflection, however, shows that while this limitation on the right
of post-liminiomay have been practically wise, it was by no means
logically necessary. An affirmativeanswer to the question would
not have attempted to restore the past but would merely have
terminated or wiped out rights acquired by others through the
applicant'scapture. "Nor ought the applicant," continues Papinian,23"to be allowed an utilis actio, as it is very unjust to take a
thing away from an owner where there was no usus that took it
away; a thing cannot be regarded as lost where it was not taken
out of the hands of the party who is said to have lost it." This
cannot,however, is not at all convincing when we rememberthat
in the same book it is laid down 24 that."soldiers being quartered
in Rome are treated as being absent on state service."
Shall we, then, give up all reliance on principles? That would
be as wise as giving up the use of our eyes because they are, as a
matter of fact, poor optical instruments. Just as a scientificoptics
aims at correcting our vision through the determination of the
natural error of myopia or astigmatism, so a scientific jurisprudence makes such natural principlesas "one cannot convey more
than in law he has," or "no rights can be acquired by the commission of wrong," more useful by showing their necessary limitations.
Closely connected with the use and abuse of first principles is
the use of artificialconceptsor abstractionsin the law. Von Jhering
has long ago pointed out25that juristic technique is able to reconstruct and simplify the law by a process of analysis similar to the
22

23
DIGEST IV 6, i9.
26 GEIST D. ROM. RECHT, ?
44.

Ibid., IV 6,

20.

24

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

Ibid., IV, 6, 7.

634

HARVARD LAW REVIEW

process whereby, in the course of history, language becomes represented by a more or less phonetic alphabet. The natural unit of
language is the sentence, represented in primitive form by pictures. By a process of abstraction we pass from that stage in
which thousands of signs are needed to the stage where a few
simple phonetic elements suffice to reproduceall the possible combinations of language. Just so, scientific jurisprudenceendeavors
to analyze all laws as combinationsof a few recurrentsimple elements. From this point of view, the artificiality of legal concepts
is not an objection to their employment. Indeed, there is an advantage in purely artificial symbols. They carry with them only
the amount of meaning contained in their definition, without the
intellectual and emotional penumbrathat more familiar terms always drag with them. The most dangerousconcepts of the law are
those like direct tax, republican form of government, interstate
commerce,restraint of trade, and the like. They seem to be definite in themselves, but when we come to apply them, they prove
most illusive. The law, for instance,says, "no taxation except for
public purposes." What are public purposes? The courts have
ruled that municipalitiesmay give bounties to grist mills and railroads, but not to factories. Communitiesmay sell gas and electricity, but not coal; may abate a dam for the relief of privately
owned meadows, but may not lend money for rebuildinga burnt
district.26 The lines of distinction seem quite arbitrary; and when
judges try to defend them by such distinctions as that between
direct and incidental benefits to the community, a logician cannot
help feeling that the decisions may be good but the reasons certainly bad. It is the perniciousfiction that judges never make the
law but only declare "the will of the legislator" that makes people
blink at the essential indefinitenessof concepts like "due process
of law" or "interstate commerce,"and pretend to believe that all
the constitutional law on these subjects is deduced from the few
words of the constitutionalenactments. The real work of judicial
interpretation is precisely that of making these concepts definite
by fixing their limits as questionsabout them come up.
Underlying the logical use of concepts are, of course, the logical
26 Rogers v. Burlington, 3 Wall. (U. S.) 654 (i865).
Parkersbury v. Brown, io6 U. S.
487 (I882). Opinion of the Justices, I50 Mass. 592, 24 N. E. i084 (i890). Lowell v.
Boston, iii Mass. 454 (i873).

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGICIN THE LAW

635

rules of division, such as the one which demands that subdivisions

shall be,mutually exclusive. As the law has its excuse for being in
the need to regulate future conduct, it must express itself in terms
which will exclude the possibility of a case falling in both or neither
of two classes which it may set up. Jurists, however, have not
paid attention to the differencebetween logical division and natural
classification. The naturalist who studies vertebrates finds that
the multitudinousand widely differentspecies may be groupedinto
fishes, reptiles, etc. If each of these groups has some important
trait, the classificationwill be satisfactory to the naturalist, even
though it does not rule out the possibility of species being discovered on the borderland, betwixt and between the groups distinguished. The distinction between plants and animalsis a useful one
even though there are many species to which either term may be
applied. The law oscillates between natural classificationand logical division and readily throws the incautious jurist into confusion.
In enforcing constitutional provision for "the equal protection of
the laws," courts soon realize that an abstract equality, regardless
of all differencessuch as age, sex, occupation, mode of life, etc.,
would render the law absurd. The courts, then, are forced to
recognize the existence of natural classes. But having recognized
these natural classes, the prevailing logic of the law compels courts
to view them as if they were absolutely logical divisions. The consequent difficulties are amply illustrated in the chapters of Professor Freund'sbook on the "Police Power."
The difficulty of foisting an absolutely logical division upon the
facts (or pretending to find them in nature) is illustrated in the
usual classificationof rights and wrongs. Let us take Langdell'sas
an illustration. His classification presupposes an absolute distinction between rights and duties. This distinctionis not defended.
It seems to be based simply on the idea of advantage and disadvantage. May there not be legal relations which can just as well
be called rights as duties? Some of the very onerousrights of trustees come very near being of that type. Further Langdell says: 27
"Absolute rights are either personal rights or rights of property.
Every personalright is bornwith the personto whom it belongs, and
dies with him. Personal rights, therefore, can neither be acquired
nor parted with, and hence they are never the subjects of commerce,
27 Op. Cit., 220.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

636

HARVARD LAW REVIEW

nor have they any pecuniaryvalue." But though "we can neither
numberthem nor definethem," there is one that is specificallymentioned, viz., "the equal right of all persons to use public highways,
navigable waters, and the high seas." Shall we, however,say that
an expressmanor shipownercannot sell his right to do businesson a
given route or river? How does the right to use a navigable river
differfrom the right to buy and sell liquor or to serve people as an
innkeeper? I have no doubt that Langdell'sclassificationof rights
and wrongsis useful in helpingus to analyzemany actual situations,
and the difficultiesI am raising can probably be met by introducing additional subtle distinctions. But the above considerations
indicate that we are not dealing here with an absolutely accurate
description. The differencebetween a useful approximationand an
absolutely accurate descriptionis of practical as well as of logical
importance. If our classificationis only approximate, we must
apply it cautiously, expectingsome day to come across actual cases
which it will not fit, and where practical injustice will result from
the attempt to makethe facts fit our preconceivedaccount.
The various instances of the abuse of legal logic adduced by
writers like Von Jhering, Korkunov,Demogue, and Pound, are all
cases of an overhasty application of logic to a complex material
and do not, of course, show the breakdownof logic itself. Nevertheless, it is fair to add that a great many of the difficultiesare due
to the inadequaciesof the Aristotelian account of logic, which up
to recentlywas the only one in the field. The Aristotelianlogic, with
its subject-predicatedoctrine, is primarily a logic of subsumption
and applies best to a system like the biology of which Aristotle was
a master, viz., a system of fixed classes. It is only modernlogic that
can deal adequately with a changing system, since modern logic,
like modern mathematics, deals with the invariant rules governing
possible transformations.
The limitationwhich underliesthe old Aristotelian logic showsitself in the familiardifficulty as to the presence of discretionin the
law. The law is primarily directed toward certainty, which, accordingto the classicalview, can be producedonly by definiterules
that leave no room for individualdiscretion. Individual discretion,
whetherof judge or of legislatoracting under constitutionally Urmited powers, appears to this view synonymous with the absence of
law. Thus in the criminal law the old maxim is, fix the offense

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGIC IN THE LAW

637

definitely and the definite penalty. To individualize punishment

seems to the old view to abandon legal security and to open
the floodgates of judicial arbitrariness. This view, however, is
based on an inadequate logic which fails to appreciate the necessarily provisional character of all legailclassificationand the consequent necessity of discretion to make definite that which would
otherwisebe really indefinite. Logically the task of the law is similar to that of the wholesale manufacturerof shoes or any similar
commodity. Human feet vary in size, and perhapsthere is truth in
the saying that no two are exactly alike. On the assumption that
the shoe should fit the foot, the theoretical consequencewould be
that no two shoes should be made exactly alike. Experience,however, without contradicting these postulates of the perfect art of
shoemaking,finds that a limited number of classes of "sizes" will
satisfy all normaldemands. How is the numberof these " sizes" determined? Obviouslyby strikinga balancebetween the (very slight)
inconvenienceof having a shoe that may be one sixteenth of an inch
too long and the inconvenienceof doublingor triplingthe numberof
sizes. The same method is at the basis of the criminal law. The
number of ways and circumstances,for instance, in which the life
of one person can be destroyed by another is endless. What the
law does is to group them into a small number of classes, viz., murder, homicide,manslaughter,etc., attempting to define the characteristics of each type in such a way that no one can take the life of
a fellow-beingin a way that society disapproveswithout falling in
one or other of these groups. There is, of course, no logical reason
why the division into groupsshould be so rough, and it is abstractly
possible to carry the classification to any degree of fineness and
discrimination,- except that the difficultyof making juries understand the differencebetween murderin the second degree and manslaughter is already sufficiently great. It is foolish 'to attempt
results more delicate than the instrumentsat your disposalwill permit. Would we attempt to carve a delicately featured wooden
statue with an ax? Judicial discretion in the individualizationof
punishmentis simply an attempt to bring into the penal machinery
a greaterdegreeof discriminationthan is practicallypossibleby the
prescription of hard and fast general rules.
The same argument applies to legislative discretion. "If the
legislature has power to fix the maximum number of hours in an

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

638

HARVARD LAW REVIEW

industry to ten, then why not nine, etc.? Where are you going to
draw the line?" The answer is that no such line can be drawn a
priori, since we are dealing with a line that must necessarilyvary
in different industries and at different times.
Jurists, like other men, are in their attitude to the employment
of logic either intellectualists or mystics. The intellectualist not
only trusts implicitly all the results of reasoning,but believes that
no safe result can be obtained in any other way. Hence in law he
emphasizesthe rule rather than the decision. This, however,leads
to an ignoring of the absurd consequences to which the logical
application of rules frequently leads. Summajus summa injuria.
The mystics distrust reasoning. They have faith in intuition,
sense, or feeling. "Men are wiser than they know," says Emerson, and the Autocrat of the Breakfast Table, who was not a
stranger to the study of the law, adds, "You can hire logic, in
the shape of a lawyer, to prove anything that you want to prove."
But shall we subscribe to the primitive superstitionthat only the
frenzied and the mentally beclouded are divinely inspired? Like
other useful instruments, logic is very dangerous, and it requires
great wisdom to use it properly. A logical science of law can help
us digest our legal material, but we must get our food before we
can digest it. The law draws its sap from feelings of justice and
social need. It has grownand been improvedby sensitivelyminded
judges attending to the conflicting claims of the various interests
before them, and leaving it to subsequentdevelopmentsto demonstrate the full wisdom or unwisdom of the decision. The intellectualist would have the judge certain of everything before deciding, but this is impossible. Like other human efforts, the law
must experiment, which always involves a leap into the dark
future. But for that very reason the judge'sfeelings as to right
and wrong must be logicallyand scientificallytrained. The trained
mind sees in a flash of intuition that which the untrained mind
can succeed in seeing only after painfully treading many steps.
They who scorn the idea of the judge as a logical automaton are
apt to fall into the opposite errorof exaggeratingas irresistiblethe
force of bias or prejudice. But the judge who realizesthat all men
are biased before listening to a case, is more likely to make a conscientiouseffortat impartialitythan one who believes that elevation
to the bench makes him at once an organ of infalliblelogical truth.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions

THE PLACE OF LOGIC IN THE LAW

639

A good deal of the wisdom of life is apt to appear foolishnessto a

narrowlogic. We urge our horse down hill and yet put the brake
on the wheel - clearly a contradictoryprocess to a logic too proud
to learn from experience. But a genuinely scientificlogic would see
in this humble illustration a symbol of that measured straining in
opposite directions which is the essence of that homely wisdom
which makes life livable.
Morris R. Cohen.
COLLEGE
OF THE CITY OF NEw YORK.

This content downloaded from 49.144.132.69 on Thu, 29 Jan 2015 07:38:17 AM

All use subject to JSTOR Terms and Conditions