Presentation Five:

The Stages of Legal

Reasoning:
Formalism, Analogy, and Realism

Wilson R. Huhn
© 2013
 Tonight’s Presentation,
and How It Fits
The theory of The Five Types of Legal
Argument that was described in Presentations
One through Four is intensely practical for both
the study and the practice of law.

The theories on Formalism, Analogy and

Realism as set forth in Presentation Five are of
intellectual interest – a glimpse into the “deep
structure” of legal reasoning.
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 There Are Three Types of Legal
Reasoning

1. Formalism

2. Analogy

3. Realism

3
 Why Are There Three Types of
Legal Reasoning?

The three types of legal reasoning satisfy

the different requirements for a system of
law.

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 Three Requirements for Any
System of Law

• The law must be logical in order to appeal

to reason

• The law must be consistent in order to

satisfy our sense of fairness

• The law must reflect morality in order to

command our obedience
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 How the Three Types of Legal
Reasoning Satisfy the
Requirements for a System of Law

• Formalism promotes objectivity and

certainty in the law
• Analogy promotes consistency and
coherence in the law
• Realism promotes flexibility and fairness in
the law
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I. THE USE AND LIMITS
OF FORMALISM
(DEDUCTIVE LOGIC)
IN LEGAL ANALYSIS

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 Formalism

Formalism is the application of a rule

according to its terms to the facts of a
case.

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 Formalistic Reasoning Is
Deductive Logic

Law aspires to be logical in form, and clear

rules lend themselves to logical
application.

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 What Formalists Believe

Formalists consider law to consist of rules –

the blackletter law.

They believe that legal reasoning should be

purely logical.

They believe that there are “right answers”

in the law.
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 Cesare Beccaria and the
Legal Syllogism
“In every criminal case,
a judge should come to a
perfect syllogism:
the major premise
should be the general law;
the minor premise, the act
which does or does not
conform to the law;
and the conclusion,
acquittal or condemnation.”
Cesare Beccaria
11
(1738-1794)
 Structure of Legal Rules

All legal rules take this form:

“If certain facts are true, then a certain legal

result applies.”

EXAMPLE: “If a person purposefully and without

justification or excuse causes the death of
another human being, then the person is guilty
of murder.”
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 What is a Syllogism?

• A syllogism is an argument of deductive logic.

• A syllogism has four parts:

– Question
– Minor Premise
– Major Premise
– Conclusion
 Example of a Syllogism
Question: “Is Socrates mortal?”

Minor Premise: “Socrates is a human being.”

Major Premise: “All human beings are

mortal.”

Conclusion: “Socrates is mortal.”

 The Brief of a Case Is a Syllogism
The four parts of a brief correspond
precisely to the four parts of a syllogism:

Issue ……………….. Question

Facts ……………….. Minor Premise

Law …………………. Major Premise

Holding ……………... Holding

 The Brief of a Case Is
an Argument of Deductive Logic

The brief of a case is an argument of

deductive logic stated in categorical form –
a “syllogism.”

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 The Case of the Burglar
and the Sleeping Homeowner

If a burglar breaks into a home, sees the

homeowner sleeping on the couch, and
shoots the homeowner dead. If
apprehended, we would no doubt charge
the burglar guilty of murder. Murder is
defined as the act of “purposefully causing
the death of another human being without
justification or excuse.

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 Syllogism for the Burglar Case

Issue: Is the defendant guilty of murder?

Facts: The defendant is a burglar who
intentionally killed a sleeping homeowner to
reduce the risk of being caught.
Law: Any person who purposefully and without
justification or excuse causes the death of
another human being is guilty of murder.
Holding: The defendant is guilty of murder.

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 The Battered Spouse Case

A woman was horribly abused by her

husband for many years. One night he
came home drunk, waving a gun and
threatening to killer her. He then fell asleep
on the couch. She picked up the gun and
she shot him dead as he slept.

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 Syllogism for the
Battered Spouse Case

Issue: Is the defendant guilty of murder?

Facts: The defendant is a woman who had been
horribly abused by her husband for many years.
Shortly after he credibly threatened to kill her,
she shot him dead as he slept on the couch.
Law: Any person who purposefully and without
justification or excuse causes the death of
another human being is guilty of murder.
Holding: ?
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 Questioning Premises

In any logical syllogism, you may attack the

major premise or the minor premise.

In this case, the facts (the minor premise)

are not disputed.

The law, however, is not clear.

 Two Ways to Attack the Major
Premise of a Legal Syllogism

• Questions of validity
– Is the major premise a correct statement of
the law?
• Questions of ambiguity
– Assuming that the statement of the law is
correct, are the terms contained in the rule
clear or are they ambiguous?
 Questions of Validity

Is this a correct statement of the law?:

“A person who purposefully and without

justification or excuses causes the death of
another person is guilty of murder.”
 Questions of Ambiguity

What do the terms “purposefully,”

“justification,” and “excuse” mean in the
context of this case?
 Purposefullness
Issue: Did the defendant act purposefully?
Facts: The defendant is a woman who had
been horribly abused by her husband for
many years. Shortly after he credibly
threatened to kill her, she shot him dead
as he slept on the couch.
Law: ?
Holding: ?
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 Justification
Issue: Did the defendant act in self-
defense?
Facts: The defendant is a woman who had
been horribly abused by her husband for
many years. Shortly after he credibly
threatened to kill her, she shot him dead
as he slept on the couch.
Law: ?
Holding: ?
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 Excuse
Issue: Was the defendant legally insane
when she killed her husband?
Facts: The defendant is a woman who had
been horribly abused by her husband for
many years. Shortly after he credibly
threatened to kill her, she shot him dead
as he slept on the couch.
Law: ?
Holding: ?
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The Reasoning in Judicial Opinions
Consists of Chains of Logical
Syllogisms

Example: Marbury v. Madison

 Syllogisms Puzzle

Place the following legal syllogisms

from Marbury v. Madison in logical order.
 Syllogism 1

Issue: Does the Supreme Court have original jurisdiction

to issue a writ of mandamus to the Secretary of State?

Fact: Section 13 of the Judiciary Act is not valid.

Law: The Supreme Court may exercise jurisdiction to

issue a writ of mandamus to the Secretary of State only if
Section 13 of the Judiciary Act is valid.

Holding: The Supreme Court lacks original jurisdiction to

issue a writ of mandamus to the Secretary of State.

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 Syllogism 2
Issue: Is Section 13 of the Judiciary Act valid?

Fact: Section 13 of the Judiciary Act is in

conflict with the Constitution.

Law: Statutes that are in conflict with the

Constitution are not valid.

Holding: Section 13 of the Judiciary Act is not

valid.
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 Syllogism 3
Issue: Are statutes that are in conflict with the
Constitution valid?

Fact: The framers intended for any statute in conflict

with the constitution to be invalid.

Law: The constitution is to be interpreted according

to the intent of the framers.

Holding: Statutes that are in conflict with the

Constitution are not valid.

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 Syllogism 4
Issue: Is Section 13 of the Judiciary Act in conflict with the
Constitution?

Fact: Section 13 of the Judiciary Act grants the Supreme Court

original jurisdiction to issue writs of mandamus to officers of the
United States, but Article III, Section 2, Clause 2 of the
Constitution prohibits Congress from granting the Supreme
Court original jurisdiction to issue writs of mandamus to officers
of the United States.

Law: If one law permits what another law forbids, the laws are in
conflict.

Holding: Section 13 of the Judiciary Act of the Constitution is in

conflict with the Constitution.
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 Syllogism 5
Issue: Does the Supreme Court have jurisdiction over
this case?

Fact: This is a case involving the Supreme Court's

exercise of original jurisdiction to issue a writ of
mandamus to the Secretary of State.

Law: The Supreme Court lacks original jurisdiction to

issue a writ of mandamus to the Secretary of State.

Holding: The Supreme Court lacks jurisdiction over this

case.

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 Syllogism 6
Issue: Does Article III, Section 2, Clause 2 of the Constitution prohibit
Congress from granting the Supreme Court original jurisdiction to issue
writs of mandamus to officers of the United States?

Fact: Unless Article III, Section 2, Clause 2 of the Constitution is

interpreted as prohibiting Congress from granting the Supreme Court
original jurisdiction to issue writs of mandamus to officers of the United
States, the second sentence of Clause 2 would be rendered
meaningless.

Law: The Constitution may not be interpreted in such a way as to

render any portion of it meaningless.

Holding: Article III, Section 2, Clause 2 of the Constitution prohibits

Congress from granting the Supreme Court original jurisdiction to issue
writs of mandamus to officers of the United States.

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 Syllogism 7
Issue: Is the Constitution to be interpreted according
to the intent of the Framers?

Fact: The intent of the Framers in drafting the

Constitution reflects the original will of the people.

Law: The original will of the people determines the

meaning of the Constitution.

Holding: The Constitution is to be interpreted

according to the intent of the Framers.

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 The Key to Solving the Puzzle

The holding of a previous syllogism in

the chain supplies the major or minor
premise of the next syllogism in the chain.
 The Relation Among
Syllogisms 4, 3 and 2
Syllogism Four: Syllogism Two

Issue: Is Section 13 of the

Holding: Section 13 of Judiciary Act valid?
the Judiciary Act of the
Constitution is in Fact: Section 13 of the
conflict with the Judiciary Act is in conflict with
Constitution. the Constitution.

Law: Statutes that are in

Syllogism Three: conflict with the Constitution
are not valid.
Holding: Statutes that
are in conflict with the Holding: Section 13 of the
Constitution are not Judiciary Act is not valid.
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valid.
The Progression of Syllogisms from
General to Specific

Base 7 3 Specific
Premises 6 4 2 1 5 Result
F F
6H 4H
L L F F F
2H 1H 5H
F F L L L
7H 3H
L L
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 The Final Syllogism
Syllogism No. 5:

Issue: Does the Supreme Court have jurisdiction over

this case?

Fact: This is a case involving the Supreme Court's

exercise of original jurisdiction to issue a writ of
mandamus to the Secretary of State.

Law: The Supreme Court lacks original jurisdiction to

issue a writ of mandamus to the Secretary of State.

Holding: The Supreme Court lacks jurisdiction over

this case. 41
 The Initial Assumptions
Syllogism 6
Law: The Constitution may not be
interpreted in such a way as to render
any portion of it meaningless.

Syllogism 7:
Law: The original will of the people
determines the meaning of the
Constitution.
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But Law is Not Purely Logical

In Marbury, Justice Marshall used a number

of other arguments, including policy arguments,
to support the conclusion that the Court had the
power to declare laws unconstitutional.
 The Difference Between Easy
Cases and Hard Cases
Easy cases may be solved formalistically,
deductively, by applying a clear rule of law to
unambiguous facts. (Burglar and sleeping
homeowner case)

Hard cases are cases where the validity or the

meaning of the rule of law is in question. (Battered
spouse case)
 Why Are There Hard Cases?
It may not be clear what the rule of law applies.

The applicable rule of law may be ambiguous.

Different types of legal arguments may yield

different answers as to what the law is

The resolution of the case may depend upon

identifying the different values that are at stake
and balancing these competing policy goals
 Legal Reasoning is Logical in
Form, but Evaluative in Substance

“In form, the growth of the law is logical ….

On the other hand, in substance
the growth of the law … is in fact and
at bottom the result of more or less
definitely understood views of public
policy.”

Oliver Wendell Holmes

 Stage Theory of Legal Reasoning

In hard cases, courts proceed from

formalism, to analogy, to realism, in order
to resolve the case.

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II. FORMALISM, ANALOGY,
AND REALISM IN LEGAL
ANALYSIS

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 Analogy

Analogy is the application of a rule to a case

because the facts of the case are similar
to the fact portion of the rule.

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 Edward Levi on
Reasoning by Analogy

“The basic pattern of legal reasoning

is reasoning by example. It is
reasoning from case to case.
It is a three-step process ….”

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 Levi – The Three Steps
of Legal Analogies

“The steps are these: similarity is seen

between cases; next the rule of law
inherent in the first case is announced;
then the rule of law is made applicable to
the second case.”

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 Three Gestational Surrogacy
Cases

1. In re Baby M (Formalism)
2. Johnson v. Calvert (Analogy)
3. Buzzanca v. Buzzanca (Realism)

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 1. The Baby M. Case
Facts: In this case, because Mrs. Stern was
unable to conceive, Mr. Stern impregnated
another woman, Mary Beth Whitehead,
who had agreed to serve as a “surrogate”
and to give up the child to the couple.
After Mrs. Whitehead gave birth she
changed her mind and attempted to keep
the child, claiming that she was the child’s
mother under the law.
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 Formalist Analysis in Baby M.
Issue: Is Mrs. Whitehead the lawful mother
of the child?
Facts: Mrs. Whitehead gave birth to the
child.
Law: A woman who gives birth to a child is
the lawful mother of the child.
Holding: Mrs. Whitehead is the lawful
mother of the child.
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 2. Johnson v. Calvert

Facts: A married couple, Mark and Crispina

Calvert, could produce gametes but Mrs. Calvert
could not carry a pregnancy. An embryo was
created from their egg and sperm, and the
couple entered into a contract with Mrs. Johnson
and her husband for the embryo to be implanted
into Mrs. Johnson and for her to carry the child
to term and to give the child to the Calverts.
Upon the birth of the child, Mrs. Johnson
changed her mind, and sought to keep the child.
Issue: Who is the mother in the eyes of the law?
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 Formalism

Based upon the rule that “The woman who

gives birth to a child is the lawful mother of
the child,” the formalist analysis would still
find that Mrs. Johnson is the lawful mother
of the child.

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 But …

If you find the formalist analysis

unsatisfactory because the people who
drafted the rule did not intend for it to
apply to a case of gestational surrogacy,
then you might look for other rules of law
that you could apply by analogy …

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 Reasoning by Analogy
We could draw an analogy to the law of
contract

We could draw an analogy to adoption law.

We could draw an analogy to constitutional

law

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 Analogy to the Law of Contract
Is the surrogacy contract more like a
contract for the sale of goods or a contract
for the sale of services?
• If it is a sale of goods then the contract is
invalid because babyselling is illegal.
• If it is a sale of services then it can be
argued that the sale of pregnancy services
is lawful.

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 Analogy to Adoption Law
Is the arrangement between the surrogate and the
married couple more like a private adoption or
more like foster parenthood?
• If it is more like an adoption then the
arrangement is illegal, because the birth mother
must be given a chance to refuse to give up her
child following birth
• If it is more like foster parenthood, then the
child’s real parents may demand the return of
the child

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 Analogy to Constitutional Law
Is the work of serving as a gestational surrogacy
more like prostitution or slavery or is it simply a
legitimate job?
• If it is more like prostitution or slavery (forms of
exploitation) then the government can prohibit
contracts regarding the practice.
• If it is a legitimate service, then women and
couples should have the right to enter into these
arrangements and they should be enforced.

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 Result in Johnson v. Calvert

The court found that the surrogacy

agreement was not a contract for the sale
of a baby but rather was a contract for the
sale of gestational services, and it
enforced the agreement.

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 Realism

Realism is the development of a new rule of

law by balancing all of the relevant
interests and values that are at stake.

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 The Two-Part Structure
of Policy Arguments

• Predictive statement of fact – what

consequences will flow from the particular
interpretation of the law?

• Evaluative judgment – are those

consequences consistent with the
underlying purposes of the law?
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 3. Buzzanca v. Buzzanca
Luanne and John Buzzanca were both infertile. They
entered into agreements with an egg donor and a sperm
donor and a gestational surrogate to have the donated
embryo, genetically unrelated to either of them,
implanted into a gestational surrogate. John filed for
divorce one month before the child (Jaycee) was born. In
the divorce case, he claimed that he and Luanne were
not Jaycee's legal parents, while Luanne contended that
they were the legal parents. The surrogate who bore
Jaycee delivered her to Luanne and made no claim of
parentage.

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 Formalist Analysis
in Buzzanca
The trial court used formalist analysis and yet
made an unprecedented decision – he ruled that
Jaycee was born without legal parents. In
finding that Luanne was not the lawful mother,
the court stated:

“One, there's no genetic tie between Luanne and

the child. Two, she is not the gestational mother.
Three, she has not adopted the child. That,
folks, to me, respectfully, is clear and convincing
evidence that she's not the legal mother.”

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 Analogical Reasoning
in Buzzanca
The appellate court reviewed several of the
analogies that had been used in Johnson v.
Calvert, but found that they were not applicable
because there was no genetic relation between
the wife and the child in this case. It did find an
analogy that it thought appropriate – because
the husband had consented to the creation of
the embryo, it found this case analogous to a
husband’s consent to artificial insemination by
donor (AID) of his wife, and ruled that John and
Luanne were Jaycee’s lawful parents.
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 But …

If you find that none of the analogies to other

cases is particularly persuasive, then you
might find it necessary to develop a new
rule of law …

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 Realist Analysis

Using realism, a court balances all of the

relevant values and interests that are at
stake in developing a new rule of law and
arriving at a conclusion.

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 Values to Be Considered in
Developing a Parentage Rule for
Gestational Surrogacy Cases
• Protecting the intentions of the parties to a
contract or their consent to a procedure
• Guarding against the exploitation of women’s
bodies
• Establishing certainty in the law of parentage
• Preserving the opportunity for infertile couples to
procreate
• Protecting the rights of birth mothers and genetic
parents
• Protecting the best interests of children
• Protecting the rights of women to work 70
 How Were the Foregoing
Values Discovered?

In the course of searching for

analogous cases – cases that have similar
facts or cases that involve a similar
constellation of values – we will identify the
values that are at stake in the case at hand.

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 Progression from Formalism, to
Analogy, to Realism
• Easy cases can be resolved
formalistically, by the application of an
existing rule according to its terms.
• In harder cases, where existing rules do
not literally apply, an existing rule may be
applied by analogy.
• In the hardest cases, where no existing
rules apply according to their terms or by
analogy, a new rule must be developed.
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 Analogy is the Bridge Between
Formalism and Realism
• In the easiest cases, courts use formalism – applying
rules according to their terms.
• In somewhat harder cases, courts use formalist
analogies – applying the rules of cases which are very
similar on the facts.
• In still harder cases, courts draw realist analogies to
cases which have similar values and interests at stake –
applying the rules of those cases to the case to be
decided.
• In the hardest cases of all, courts balance all of the
relevant values and interests identified in the previous
stage to develop a new rule to decide the case.

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 The Stages of Legal Reasoning
in Progressively Harder Cases
Formalism

Formalist Analogies

Realist Analogies

Realism

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 III. Lessons from the Field of
Developmental Psychology

Developmental psychologists have

observed the same progression from
formalism, to analogy, to realism in the
cognitive and moral capacity of the human
being.

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Ernst Haeckel

Ontogeny recapitulates phylogeny

The physical development of the

individual goes through the same
stages as the development
of the species.

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G. Stanley Hall

The psychological and social

development of the individual
retraces the development
of the human species.

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James Mark Baldwin

Assimilation
and
Accommodation

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 Assimilation and Accommodation

Assimilation involves the person’s dealing

with the environment in terms of his
structures, while accommodation involves
the transformation of his structures in
response to the environment.

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Jean Piaget

Stages of
Cognitive
Development

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 Piaget’s Stages of Cognitive
Development

• Sensorimotor Period (birth – 2 years)

• Preoperational Period (2 – 7)
• Concrete Operational Period (7 – 12)
• Formal Operational Period (after 12)

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 Reasoning by Analogy Appears to
Bridge Concrete Operations and
Formal Operations

• At about age 9, children learn to draw concrete

analogies between physical objects
• At about age 11, children learn to draw abstract
analogies between physical objects
• At about age 13, children learn to draw abstract
analogies between abstract concepts

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 Concrete Analogy Between
Physical Objects

Ink is to pen as paint is to ________

color
spray
brush
paper

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Abstract Analogy Between Physical
Objects

Food is to body as water is to ______

storm
coat
ground

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Abstract Analogy Between Abstract
Objects

Task is to ____________ as problem is to

solution.

attempt
completion
work
end
question

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Laurence Kohlberg

Stages of
Moral
Development

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 Kohlberg’s Stages of Moral
Development
• Preconventional Thought (sensorimotor and preoperational period)
– Person learns to obey rules
– Stage 1 - Pleasure seeking, responds to reward or punishment
• Toddler or criminal mentality
– Stage 2 - Concept of bargain
• Deal, reciprocal obligation
• Conventional Thought (period of concrete operations)
– Person acquires the concept of “duty”
– Stage 3 - Follows rules to gain love and acceptance and avoid guilt
• “good boy,” “nice girl”
– Stage 4 - Follows rules because of sense of group identity
• “good citizen”
• Postconventional Thought (period of formal operations)
– Stages 5 and 6 – Person can evaluate the fairness of rules based on
considerations of consequences and application of universal precepts

87
Carol Gilligan’s Critique of
Kohlberg’s Theory

Gilligan contends that Kohlberg

missed “the heart” of moral
reasoning.

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 Carol Gilligan’s Ethic of Care

Gilligan characterized difficult moral

questions as arising from conflicting duties
or responsibilities to others, rather than
purely intellectual puzzles

Gilligan’s followers believe that moral

development depends on developing the
capacity for empathy
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 Ontogeny Recapitulates
Phylogeny

Ernst Haeckel’s insight into embryology

stimulated the science of child development.

The development of reasoning powers

in the individual also follows this path – from
formalism, to analogy, to realism

90
 The Stages of Legal Reasoning
in Progressively Harder Cases
Formalism

Formalist Analogies

Realist Analogies

Realism

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IV. THE STAGES OF LEGAL
REASONING IN THE
EVOLUTION OF RULES AND
STANDARDS
 Rule:
“Drive at the Posted Speed Limit”

Rules are clear, arbitrary, and are applied

formalistically.

To apply a rule, we simply ask what are the

facts, and does the rule apply to the facts?

93
 Standards
“Proceed cautiously on yellow light”

Standards are ambiguous, fair, and are

applied realistically.

To apply a standard, we must ask what are

the facts, what are the underlying values
and interests to be considered, and how are
those values and interests involved in the
case to be decided?
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Evolution of a Rule into a Standard

Rules evolve into standards as the courts

recognize exceptions to a rule. As exceptions
accumulate, the courts may recognize an
underlying policy that determines whether to
recognize the exception to the rule. Eventually,
it is easier to state the law in terms of the
standard rather than in terms of the rule and its
many exceptions.

95
 Example of a Rule
Turning into a Standard
Imagine yourself as a judge in traffic court for
20 years. Over that time, you have tried thousands
of cases. In many of those cases people had good
excuses for exceeding the posted speed limit –
taking an injured relative to the hospital, or you are
being chased by a dangerous criminal. You will have
developed a standard that people should obey the
posted speed limit except in emergencies where
speed is essential.
Because of the similarities among the
underlying reasons (values) justifying these
exceptions, a rule will evolve into a standard.

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Evolution of a Standard into a Rule

Standards evolve into rules as the courts

acquire experience interpreting the
standard. Factual similarities between the
cases applying the standard may allow the
law to be articulated in terms of a rule.

97
Example of Standard Evolving Into
a Rule

Imagine yourself again as a long-time judge in

traffic court, and the applicable law is a
standard that “Automobiles may proceed at a
reasonable rate of speed.” After thousands
of cases you will know that in good weather a
reasonable rate of speed on country roads is
between 40 and 55 miles per hour.
Because of the factual similarities among the
various applications of the standard, a
standard will evolve into a set of rules.
98
 Another Example of a Standard
Evolving Into a Rule
Congress adopted the residual exception to the
rule against hearsay in Rule 807, admitting
statements which have “equivalent
circumstantial guarantees of trustworthiness” as
the other hearsay exceptions and which are
more probative of a material fact than any other
evidence. As the courts interpret this standard,
there may emerge factual similarities in cases
where the residual exception is recognized, such
as the admission of grand jury testimony in
certain circumstances. At some point in time, it
may be easier to express the law in terms of
rules rather than as a standard.
99
 Analogy is the Bridge Between
Formalism and Realism

• As rules evolve into standards, the courts

draw realist analogies among all of the
cases making exceptions to the rules.
• As standards evolve into rules, the courts
draw formalist analogies among all of the
cases applying the standards.

100
 Realist Analogies and Formalist
Analogies Help the Law to Evolve
• Cases creating exceptions to rules
Realist Analogies Standards

• Cases interpreting standards

Formalist Analogies
Rules

101
 Why Are There Three Stages of
Legal Reasoning?

• Formalism promotes objectivity and

certainty in the law
• Analogy promotes consistency and
coherence in the law
• Realism promotes flexibility and fairness in
the law

102
Not Hierarchical Stages,
But Stages of a Cycle

Formalism

Realism Analogy

103
END

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