International Journal for the Semiotics of Law V / 1 4 [1992]

O N THE LOGICAL ANALYSIS OF JUDICIAL DECISIONS

by
MAARTEN HENKET

Utrecht University
1. Introduction
The subject of this contribution is, as the title indicates, the
logical analysis of judicial decisions. The term "logical" refers to
formal deductive logic. 1
Whenever arguments are offered for a judicial decision, they
usually refer to the "facts of the case" and the "applicable rule or
principle". In as far as the judge suggests that the decision follows
inescapably from given facts and a given rule or principle, his argumentation is misleading. This much seems to be uncontroversial, at
least on the level of theoretical reflection. Legal theoreticians
agree about the existence of a certain room for choice and interpretation regarding the facts and the rules or principles of a case, and
about the interdependence of these two. As far as the applied rule or
principle is concerned, this is not some clearly defined entity, lying
in store for the judge, but has to be chosen and interpreted against the
background of the facts of the case. 2

1 The terms "logic" and "formal logic" do not have fixed meanings.
Perelman. for example, emphasizes that "legal logic" is not formal (Ch.
Perelman, Logique Juridique (Paris: Dalloz, 1976), passim). For Horovitz,
formal logic encompasses what he calls inductive logic (J. Horovitz, Law and
Logic (Wien/New York: Springer, 1972), 78). In American literature especially, logic covers about the whole area of argumentation theory.
2 To avoid misunderstandings, let me state clearly at this point that I do
not want to take position as to the nature of the rules that judges appeal to.
For example, I do not wish to affirm or deny that the rule phrased in a particular judicial opinion can derive any justificatory power from the fact that
it is identical or similar in words to a rule given by a historical legislator.
This, I think, is a matter of what Wr6blewski has called external justification. My essay is about internal justification. (See J. Wr6blewski, "Justification of Legal Decisions", in Revue Internationale de Philosophie 127/128
(1979), 127ff.)

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This should be taken into account in analyzing a judicial decision

and judging its quality. Like the judge himself, the critical analyst
of the judge's decision should not ascribe a fixed meaning to rules and
principles, apart from the facts of the case. This is not only true for
the conceptual terms in the rule or principle, but a l s o - and this
takes us to the subject of this article m for its logical aspects.
In jurisprudential literature, legal rules and principles are commonly analyzed as (material) implications. 3 In this article, I shall
defend the view that a legal rule or principle serving as a premise in
a judicial decision should very often not be interpreted as a material
implication, but as a replication or as an equivalence. In any case, I
shall argue, it is wrong to use the material implication as the standard interpretation of the legal rule. I shall adstruct this thesis in
section 2, with the help of the example of the argument form e
contrario ("by contrast").
Anyone who rejects the implication as the standard interpretation of the legal rule must reject the modus ponens as the standard
argument form of judicial argumentation. I shall clarify this in section 3. In section 4, I shall argue that the logical analysis of the rule
in a judicial decision, just like any other kind of analysis, should
take place against the background of the facts of the case. Finally,
in section 5, I shall try to show the relationship between the logical
analysis of the rule on the one hand, and the function of the logical

3 In addition to the literature referred to in the text, I mention P.W.

Brouwer: Samenhang in recht, (Groningen: Wolters Noordhoff, 1990), 221;
M.A. Loth: Recht en taaI, een kleine methodologie (Arnhem: Gouda Quint,
1984), 157; O. Weinberger: Rechtslogik (Berlin: Duncker und Humblot,
1989, 2nd imp.), 224, 251-253; R. Zippelius: Einfiihrung in die juristische
Methodenlehre (Mfinchen: C.H. Beck, 1971), 121ff. Soeteman seems to
hold a nuanced view: A. Soeteman: Norm en Logica (Zwolle: Tjeenk
Willink, 1981), 355-56; so does perhaps Tammelo (cf. note 14 below). Klug
and Koch/Rfissmann explicitly mention other interpretations besides the
material implication (cf. U. Klug: ]uristische Logik (3d imp, Berlin: Springer,
1966), 128-129; H.J. Koch and H. Rfissmann, Juristische Begrandungslehre
(Mfinchen: C.H. Beck, 1982), 78ff). R6dig rejects the material implication as
standard interpretation: J. R6dig: "Logische Untersuchungen zur
Makrostruktur rechtlicher Kodifikate", in Studien zu einer Theorie der
Gesetzgebung, ed. J. R6dig (Berlin/Heidelberg: Springer, 1976), 592-611; his
argument however does not regard the separate rule but the regulation as a
whole (the "rechtliche Kodifikat").

ON THE LOGICAL ANALYSIS OF JUDICIAL DECISIONS

155

analysis of judicial decisions on the other.

In this article I shall use propositional logic. This logical system is a popular analytical instrument, and it only d e m a n d s comparatively little technical knowledge and skill, both on the part of
the analyst and on the part of the reader who wants to examine the
results of the analysis.
It is implied in what follows that there is room for deductive
logic in law. This is of course highly controversial. A defense of m y
position would be beyond the scope of this article. Let me just
indicate that I would d r a w most of m y arguments from Weinberger. 4

2. The Logical Interpretation of the Legal Norm

In a much quoted article, the Dutch author Nieuwenhuis argues
that the e contrario inference is a "classical non-sequitur", and that
its use can only be defended on other than logical grounds#
To illustrate his point, Nieuwenhuis uses an example from Dutch
law, based on section 1843 of the Dutch civil code. This section reads
as follows (my translation, M.H.):
The mandatory who has given proper notice of his mandate to those
with whom he acts in that quality, is not liable beyond the limits of his
mandate (..3.
The Dutch Supreme Court, arguing e contrario on the basis of this
section, has inferred that a mandatory who has not given proper notice of his mandate, is liable beyond the limits of his mandate.
According to Nieuwenhuis this inference is logically invalid. I do
not agree, and I shall explain why.
Section 1843 can be rewritten as "if p then q": "If the mandatory
(...) has given proper notice (...) then he is not liable." But what is
the meaning of this "if"? There are three possibilities: "always if",
"only if" and "always and only if." In the first meaning, "if p then q"
is a sufficient condition, in logical terms a (material) implication.
In the second meaning, it is a necessary condition, a (material)

4 See especially O. Weinberger, "'Is' and 'Ought' Reconsidered", in

Archly flit Rechts- und Soziaphilosophie LXX/4 (I989), 455-474.
5 J.H. Nieuwenhuis: "Legitimatie en heuristiek van her rechterlijk
oordeel", in Rechtsgeleerd Magazijn Themis (1976), 494-515.

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replication. 6 In the third meaning it is a necessary and sufficient

condition, a (material) equivalence. Nieuwenhuis does not state
explicitly which of the three possible meanings he attaches to "'if ...
then". However, his choice can be derived from the following
passage (my translation, M.H.):
What the logician can't bring off, the jurist manages to do without
blinking: the inference from "if p then q" to "if not-p then not-q"7
The meaning of "if" in this passage can not be "only if", nor "always
and only if", for in both cases the logician w o u l d not have any
trouble with this inference. So, for Nieuwenhuis's argument to make
sense, he must intend "if" to be interpreted as an implication;
"always if p, then q."
Let us n o w take a closer look at section 1843. Is it arguable to interpret this provision, contrary to N i e u w e n h u i s , as "only the
mandatory w h o has given notice ... is not liable ..."? I think it is.
For, had the legislator wished to include other mandatories in this
exemption, the following formulation w o u l d have been sufficient
and, indeed, more appropriate: "The mandatory is not liable beyond
the limits of his mandate." In view of the formulation chosen b y the
legislator, I am of the opinion that section 1843 should not be interpreted as a material implication, but as a replication or an equivalence. 8 In both these interpretations, the derivation of the conclusion
"if not-p then not-q" is logically valid.
The question as to when an e contrario inference is allowed
should in m y opinion be addressed as follows. Reasoning e contrario
from a certain rule goes hand in hand with interpreting that rule either as a replication or as an equivalence. Whoever is reasoning e
contrario cannot interpret the relevant rule as an implication. Or, to
put it the other w a y round, whoever wants to interpret a rule as an
implication can't defend an e contrario inference from that rule
6 The name "replication" (for the necessary condition) is less commonly
accepted than the names "implication" (for the sufficient condition) and
"equivalence" (for the necessary and sufficient condition). The following
symbol for the necessary condition, however, is generally used: p (~ q.
7 Supran. 5. at 506.
8 Of these two possible interpretations, the equivalence is the more
plausible one in my opinion. This, however, is not relevant to my main argument.

ON THE LOGICAL ANALYSIS OF JUDICIAL DECISIONS

157

without implicitly contradicting himself.

The right interpretation of a legal r u l e - implication, replication or equivalence - - is not a matter of logic. This question does not
differ in essence from other questions of interpretation. The choice
will be determined by looking for the meaning, the purpose, that is
best defensible juristically. For some rules, the answer will be simple, such as rules that are explicitly formulated as definitions. In
other cases, opinions as to the right interpretation may legitimately
differ. Nevertheless, one must be aware of the possibility that some
rules should not be interpreted as implications. As I just argued,
section 1843 of the Dutch civil code is an example of such a rule.

3. The Limits of the Modus Ponens

3.1 Denying the Antecedent
Whoever interprets the rule or principle in a judicial decision as
a material implication, interprets the decision as a modus ponens.
This classical argument form looks as follows:
p~ q
(material implication)
p
(antecedent)
q
(consequent)
Traditionally, a discussion of this logically valid argument form is
followed by a discussion of two logically invalid forms or fallacies
that are misleadingly similar to the valid modus ponens. They are
c o m m o n l y called denying the antecedent and affirming the consequent. These invalid argument forms look like this:
p-)q
q

(the consequent, "q", is affirmed)

P
P~q
not p
(the antecedent, "p", is denied)
not q
N i e u w e n h u i s , in the article quoted above, rightly calls this second
form a classical non-sequitur which "any school child can expose".
It should be realized, however, that affirming the consequent
('q') or denying the antecedent ("not p") only leads to an invalid argument if the first premise ("if p then q") is a material implication.

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If, on the contrary, the first premise is a replication or an equivalence, affirming the consequent and denying the antecedent lead to
two perfectly valid argument forms. The outcome for legal reasoning
is that it d e p e n d s upon the logical interpretation of a legal rule
which inferences can validly be based on it. The following two argument forms are perfectly valid in propositional logic, even though
they both contain the denial of the antecedent:
p (--)q
(equivalence)
not p
not q
p 4-- q
not p

(replication)

not q
Each of these two argument forms can be used for reasoning e contrario. The logical validity of this form of reasoning depends u p o n
the right interpretation (either as equivalence or as replication) of
the legal rule that is used as a premise. 9
3.2 Validating an Invalid Argument Form
There are other possible strategies for making the e contrario
inference into a valid argument form. In a recent publication, Kaptein proceeds as follows. 1 He begins b y interpreting the legal rule in
the e contrario reasoning as a material implication, he then admits
that the result is "in itself" an instance of the fallacy "denying the
antecedent", and he finally saves the e contrario b y adding an extra
premise: the material implication "if q, then p." With the inclusion
of this extra premise, the logically valid form of the e contrario inference is then presented as follows:
P~q
9 Klug expresses the same opinion (supra n. 3, at 128). He adds that the
intention of the historical legislator should prevail in case of doubt (at 129).
In this respect, 1 do not agree with him, as ! hope to make clear later in the
article.
10 H. Kaptein, "Logica in rechtspraak, in her bijzonder in analogie- en a
contrarioredeneringen: vroom bedrog?", in F.H. van Eemeren and E.T. Feteris, eds., ]uridische argumentatie in analyse (Groningen: Wolters Noordhoff, 1991), 75-90.

ON THE LOGICAL ANALYSIS OF JUDICIAL DECISIONS

159

not p
q--cp
not q
Essentially, Kaptein uses the extra premise to transform the legal
norm from a material implication into an equivalence. 11 He justifies
the extra premise by an appeal to the closed character of the legal
system: "legally speaking, not every premise is acceptable. "m
I agree, of course, with Kaptein's result, but the route he choses
in order to get there is winding and dangerous. In the first place,
Kaptein begins his analysis by presenting the judicial argument as a
modus ponens and the e contrario inference as logically invalid33 He
thereby adds fuel to the view that the material implication is the
standard interpretation of any legal rule (except perhaps those rules
that are unequivocally definitions). As I argued in section 2, this is a
mistake.
In the second place, Kaptein brings up some quite heavy artillery
to save the e contrario inference from invalidity: he invokes the
closed character of the legal system to justify his added premise. To
readers who do not readily accept that the legal system is closed,
Kaptein's argument therefore will not be convincing. In other words,
Kaptein's cannon may backfire. As I have tried to show, the case for
the e contrario inference can be won without recourse to such dangerous weaponry.
My conclusions so far can be summarized as follows. The material implication should not be considered the standard interpretation of the legal rule. Each case should be examined upon its merits,
and quite often the equivalence or the replication should be preferred. Accordingly, the modus ponens should not be considered the
standard argument form of judicial decisions.
So far I have neglected almost completely the factual context of
the case. In the following section I intend to make up for this. I
shall argue that a logical analysis of the rule that serves as a
premise in a judicial decision should, like any other kind of analysis, take into account the facts of the case at hand.

11 "p ---) q" together with "q --) p" adds up to "p +-, q."
12 Supra n.10, at 80.
13 Supra n.10, at 76.

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4. The Factual Context and the Analysis of the Rule

Logical analysis can be used on any text in which conclusions are
based upon arguments. Before the actual logical "calculation" can
take place, the argumentation must be interpreted. What this
means varies between various types of texts. To confine ourselves to
two types of legal argumentation, there is an important difference
between jurisprudence and judicial opinions.
In jurisprudential texts, the subject is more or less abstract. The.
subject is not, say, whether X, who admittedly has hidden Y from
the police, should go to jail, but whether it is a criminal offence to
help suspects against the authorities. Consequently, argumentation
in such texts is of a general nature, and should be interpreted accordingly.
On the other hand, the judge who writes a judicial opinion argues in a concrete procedural setting and about a concrete factual case.
The analyst who wants to judge the argumentative quality of such an
opinion should take this into consideration. As I noticed before, legal theorists nowadays generally recognise that the meaning of a
rule in a concrete case is dependent on the facts. Two points, however, have not received much attention so far. Firstly, the facts m a y
affect not only the meaning of the conceptual terms in the rule but
also its logical status. Secondly, not only the facts of the case but
also the concrete procedural setting should be taken into consideration. Let me illustrate these points.
My first example is taken from criminal law. Section 307 of the
Dutch criminal code reads as follows (my translation, M.H.):
He to whose fault the death of another person is attributable, shall be
punished with a maximum of nine months imprisonment or a fine of
the fourth category.
If we look at this provision apart from a concrete procedure, it
clearly should be interpreted as a sufficient, not as a necessary
condition. The intention clearly is not to reserve this particular
maximum penalty exclusively for this particular criminal offence.
But in a concrete trial where the defendant is charged with this
particular offence, the provision quoted above becomes a replication,
a necessary condition: only if someone else's death is attributable to
the defendant's fault can he be punished. And if nothing special
happens (the defendant does not, for example, plead the statute of

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161

limitation or self defence), the provision counts as an equivalence in

the context of that particular setting. ~4
I now take an example from civil law. In many countries, a contract is voidable if one of the parties is an infant. Taken b y itself,
this rule contains a sufficient condition for a contract to be voidable,
not a necessary one. Contracts may be voidable for all sorts of reasons. N o w suppose someone asks the judge to nullify a specific contract on the ground of infancy, and the defendant's only defense is a
denial of plaintiff's infancy. In that case, the rule can be interpreted
as a necessary condition: if the judge concludes that the plaintiff was
not an infant at the time of the agreement, he will rule for the
defendant. It w o u l d be absurd to label his reasoning logically invalid. The law may know other grounds for nullifying contracts, like
for example u n d u e influence, but they do not belong to the context of
the case at hand and do not have to be taken into consideration b y
the judge, not even tacitly.
The context of a case is partly determined b y the facts and other
arguments brought forward b y the parties, and these are thereby in
the end relevant for the meaning of the rule or principle in that particular case. In a concrete judicial opinion, eventualities which are
not pertinent to the case do not have to be considered. In a civil case,
the judge restricts himself to the questions that keep the parties divided; a criminal judge does not cross the boundaries set out in the
charge. This should have its consequences for any critical analysis
of the judicial argumentation, including a logical analysis of the
applied rule.
One and the same rule or principle may legitimately be used as a
basis for an inference e contrario in one case, and for a reasoning b y
analogy in the next. In my approach this does not present a problem:
in the context of the first case, the rule boils d o w n to a replication or
an equivalence, in the context of the second case to an implication.
This approach to the analysis of rules in concrete cases is connected with what I see as the main function of logical analysis. In
the next section I shall explain what I mean by that.
14 In his Modern Logic in the Service of Law (Wien/New York: Springer,
1978), 77, I. Tammelo makes the same point. Nevertheless, he seems to regard the material implication as the standard interpretation of the legal
norm. I conclude this from the fact that in his examples and exercises he
uses almost exclusively material implications.

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5. Deducing From or Tracing Back To?

The task of the logical analyst is usually seen as checking,
firstly, whether the premises are consistent among themselves and,
secondly, whether the conclusion can be validly deduced from the
premises. In this view, the analist of a judicial opinion first makes a
list of the premises, one by one (the facts of the case and the rule or
principle that is invoked). Having done that, he checks their consistency. If he does not find any inconsistencies, he adds the conclusion (the decision), and then checks w h e t h e r the totality of
premises plus conclusion corresponds with a valid argument form.
I think this is an unfortunate way of presenting the matter. In
the first place, it suggests to the lawyer (logicians know better) that
logic and judicial creativity don't go together. In the second place, it
suggests to the logician (jurisprudents know better) that the meaning
of the factual premises can be established apart from the meaning of
the normative premises and vice versa. Whereas it is commonplace
in jurisprudence that the interpretation of the rule and the qualification of the facts go hand in hand, this connection tends to be overlooked in the context of logical analysis. In the third place, the approach just sketched leads to a black or white answer "valid" or "not
valid", which has a misleading look of objectivity and inescapability, and which diverts the attention from what matters most: the
degree of juridical acceptability. 15
A judge who is justifying his decision is not deducing it from legal
rules and so-called facts. He is tracing back the decision, regardless
how he found it, to grounds that can support it. The usual terminology - - "deducing", "following from," etc. - - tends to send us barking
up the wrong tree. A judicial opinion is not an account of the judge's
quest for the right decision but a justification of the result as

15 An exponent of this approach is Boukema, as the following quotations

illustrate (from H.J.M. Boukema,"A Logical Scrutiny of the Van Duyn
Case", in Legal Issues of European Integration (1987/2), 83-100): "... sometimes legal reasoning is complicated to the extent that even the finest
'feeling' for logic is not enough to determine whether that reasoning is logically sound ..." and "... modern (or symbolic) logic contains an
instrumentarium without which contemporary tasks of ethics and law cannot be performed in intellectual integrity."

ON THE LOGICAL ANALYSIS OF JUDICIAL DECISIONS

163

juristically acceptable. 16 And the critical analyst should take it as

such. With regard to logic, this approach is in line with the original function of logic. Logic was not invented to deduce conclusions
from given premises but to find premises for given conclusions. 17
Given a certain conclusion and a set of possible premises, logic
enables us to point out those premises to which the conclusion can,
and those to which it can not be traced back.
The logical analyst who shares this view will approach a judicial opinion as follows. He simply assumes that the argumentation
given b y the judge for his decision is deductively valid. Starting
from the decision, he then will interpret the a r g u m e n t s given
(factual and normative) in such a w a y that the result is indeed logically valid. The outcome of his analysis will be something like
this: "Given this decision, the judge has interpreted the rule as follows ...". Sometimes there will be more than one possibility. Here
the logical analysis ends. Next comes an investigation regarding the
juridical acceptability of the judge's interpretation. That, however,
is not a logical investigation. It does not end in a verdict "valid" or
"not valid", but in a judgement about the juridical quality of the opinion. An example of this approach can be found in section 2 above.
On the assumption that Nieuwenhuis's reasoning is logically valid,
it is determined that he interprets section 1843 of the Dutch civil
code as an implication. This interpretation is then criticized.
Only if it should be impossible to reconstruct a certain judicial
argumentation in a meaningful w a y as valid, the verdict "not valid"
would be appropriate. However, as long as judicial opinions are
written in h u m a n language, such a verdict will always be open to
attack. TM To borrow Perelman's term, such a verdict is not a logical
16 I hold this to be the case not only for opinions of civil law judges but for
common law opinions as well. Despite appearances, caused by their narrative style, common law opinions are, I think, not a faithful account of a heuristic process, but a justification. Their quality does not depend on whether
or not they contain the real reasons the judge had for deciding as he did.
17 See Ernst Kapp, Greek Foundations of Traditional Logic (New York:
Columbia University Press, 1942), especially chapter 1.
18 I know two publicized formal-logical analyses of judicial opinions that
end in the verdict "logically incorrect". Both are, I think, open to criticism.
The first can be found in H.J.M. Boukema, "A Logical Scrutiny of the Van
Duyn Case", in Legal Issues of European Integration (1987/2), 83-100.

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but a quasi-logical argument against the opinion so labeled. 19

Conclusion

Three steps can be distinguished in this essay. Firstly, it is argued that the material implication should not be regarded, as is often done, as the logical standard interpretation of legal rules and
principles. Even if we do not take into consideration the context of a
particular case, countless rules should be interpreted as an equivalence or as a replication. This implies that the modus ponens should
be rejected as the standard form of legal reasoning.
S e c o n d l y , it is argued that the logical analyst, just like any
other analyst, should take into account the context of the case if he
analyses a judicial opinion. The judge uses that context in determining the meaning of the rule he applies; how then could it be justifiably passed over in analyzing his argumentation? This means,
among other things, that the logical status of one and the same rule
may vary from one case to the next.
Finally, this approach to logical analysis is linked to a view on
the function of deduction, more specifically deduction in judicial
opinions. It is argued that deduction is not so much the derivation of
conclusions from given premises but rather the justification of a given
conclusion by tracing it back to premises. If a judicial opinion is analyzed critically~ the emphasis should be on the juridical acceptability of the premises. This is best accomplished by starting from
the assumption that the judge's reasoning is logically valid, and
working backward from the conclusion to the premises.
Boukema's conclusion that the premises are contradictory seems based on
a mistaken interpretation- and consequently a mistaken formal reconstruction- of the judge's argumentation. The second can be found on p.
62 of I. Tammelo, G. Moens and P. Brouwer. "De tegenformulemethode en
haar rechtslogische toepassingen", in Rechtsfilosofie en Rechtstheorie
(1981). 55-65. These authors admit that different interpretations may lead to
different results (p. 59). Here too, l think a different reading of the text is
possible and defensible, whereby the incorrectness is avoided,
Unfortunately, an adequate foundation for my critique would go far beyond the spacial limits of a note.
19 See Perelman's taxonomy of argument forms in, e.g., Ch. Perelman
and L. Olbrechts-Tyteca, The New Rhetoric. A Treatise on Argumentation
(Notre Dame: University of Notre Dame Press, 1971), (2d imp.).