What to Expect

from Legal Logic?

Author: Jaap Hage
Reported by: Dizon, Lo, and
Visitacion

Jaap Hage
Maastricht University, Law, Faculty Member
Published articles on:
- general concepts of (Private) law
- Contract theory
- Law and Logic
- Nature of Legal Science
- Coherentism in Law and in Epistemology
-Artificial Intelligence and Law

I. What Legal
Logic is not

Some Arguments About Legal Arguments

Thorne McCarthy
Attacked the work of other authors:
Researchers merely continue their own research and only
address the work of others to show that they are familiar
with the recent literature in their field. (Hage, 2001, p. 77)

Science progresses through criticism and over

politeness does not contribute to such progress. (p. 77)

Polemical spirit used by McCarthy

What did McCarthy do?

1. Attacked the rule based theories of legal
arguments and only discussed argument based
approaches
Argument based logic - are built on the idea that given
a set of premises, there can be a number of arguments
which possibly lead to conflicting conclusions
Rule-based theories - rely on a model of deductive
reasoning that utilizes "if A, then B" rules. In a rule-based
legal expert system, information is represented in the
form of deductive rules within the knowledge base.

McCarthys argument
1. A lawyer who makes an argument before a real judge, will
use simple and clear set of rules which favor his client.
2. Arguments as discussed by the authors of rule based
systems are rather complexMoreover, it is sometimes an
issue for discussion between the theoreticians themselves
what the outcomes of these arguments should be.
3. Therefore, arguments as they occur in rule based systems
are unlike the arguments that are used by lawyers who
argue for real judges.
4. Therefore, rule based systems are wrong.

The Correct Theory

Thorne McCarthy
1. Legal Reasoning is a form of theory construction.
Theory construction where initial assumptions and conclusions
are critically addressed by adducing reasons for and against them.
The result is a gradually changing theories in which statements
can at one time be justified and at others defeated or unsettled.
This process is guided by the data and argumentation schemes
His criticism of rule based approaches are formulated as the
objection that these approaches do not address theory
construction. Hence, misconstrue the nature of legal reasoning.

Agree or Disagree?
Agrees only to some extent that legal
reasoning is theory construction
Disagree that this observation is an objection
to rule based theories of legal argument

What went wrong?

Legal logic should solve the problems with which a lawyer
who has to solve a case is, wrestling. (p.78)
A logic which does not support a lawyer in fulfilling his reasoning
tasks would for this reason be defective.

Overlooked that legal logic aims to provide standards for

evaluating the logical qualities of legal arguments and does
not pretend to solve legal problems.
Overlooked that rule based theories of legal argument were
intended as logical theories not as theories about how to
solve legal problems.

What did he mean by this?

A lawyer who makes an argument before a
real judge will use a simple and clear set of
rules and that the arguments dealt with by
rule based systems are often highly
complexed. (p.78)
Materials that form the input of legal decision making consist to a
large extent of case law which is, in comparison to statutory
regulations, little structured.
Case law asks for much more reconsideration than statutory law
before it can be applied to new cases
Reconstructions need to be relatively simple, given the constraints
on judicial information processing capabilities
Arguments leading to such reconstructions need not be simple at
all

Statutory Interpretations
Meant to be applied to concrete cases without
additional reconstruction
It is always possible to reconstruct statutory law
from an interpretation at first sight into an
interpretation in the light of all the rest of the law
Working with statutory law in its prima facie
interpretation sometimes involves the
complications dealt with by rule based logic

Critical Evaluation
1. McCarthy unjustly expects from logical theories of
legal reasoning that they are tools for legal problem
solving and in this light scorns them for not paying
attention to theory construction
2. McCarthy seems to undervalue the role of logic in
both legal decision making and theory construction
based on common law tradition where materials
that go into theory construction are less structured
than the statutory regulations that are all important
in the civil law tradition.

II. What Legal

Logic should be

What Legal Logic should be

Arguments:
1. There are many viable logics, and none of them is a priori
better than the others.
2. Which logic is the best, depends on the purpose for which the
logic is to be used, including the knowledge domain in question.
3. A logic for a particular domain should use a conceptual
framework that is as close as possible to that of the domain in
question. Logics that fail in this respect are not useful for testing
the validity of arguments.
4. The logics in question do not take sufficient characteristics of
the legal domain into account.

2. 1 The Purpose of Logic

Logic is a theory that provides standards to evaluate
arguments on their logical validity. (p.80)
1. They are concerned with the form rather than the
content of arguments, on the assumption that t is the
form, not the content which determines whether an
argument is valid.
2. Modern logics tend to be developed by means of so
called logical languages, which are defined precisely.
Formal language because they use meaningless characters
to represent meaningful elements of natural language.

Logics tend to provide procedures by means of which the

validity of arguments in their formal language can be
tested. (p. 80)
1. Propositional logic consists of drawing up a truth table.
2. In natural language, the argumentation is formalized
then translated into the language of some formal logic
which can be tested and the outcome of this is applied
to the original informal argument.

The language of logic should be as close as viable to the

informal language which it is meant to formalize. (p. 80)
Exactness with which the quality of formalized arguments
can be tested is not available for the translation of the
natural language argument into the formal argument
Thus, there is some room for gerrymandering.
If a valid argument comes out invalid, or the other way
around, this can be interpreted as the reason why the
argument was incorrectly formalized.

III. Logical Form

Logical Form
A logic should provide TESTS for the
VALIDITY of arguments. not viable
Logics tend to characterize arguments by
means of some abstract properties
ABSTRACT PROPERTIES basis of the
evaluation of arguments as valid or invalid

concern the FORM of the argument

FORM determines the validity of an argument

Logical Form
However, this notion of logical form is not
so clear.
PROPOSITIONAL
LOGIC

PREDICATE LOGIC

All thieves are

punishable.
John is a thief.
Therefore, John is
punishable.
INVALID

VALID

Logical Form
Predicate logic recognizes more as logical
form.
Recognizes universal quantifiers as determiners of
logical form

Logical Form
Generally, logic is stronger if it recognizes
more logical form.
modal propositional logic > mere propositional logic
Modal words as determinative of logical form:
necessarily, possibly, etc.

deontic logics > non-deontic logics

ought, permitted, etc.

Depends on the logic what counts as logical

form.

IV. Strong to
Weak Logic

From Strong to Weak logic

A logic should ex hypothesi deal with arguments
and formulate standards for their validity.
STRONGEST POSSIBLE LOGIC: list of all valid
arguments
Where the conclusion logically follows from the
premises

Every item in the list seen as an inference rule of

the logic.

Does not distinguish between form and content

From Strong to Weak logic

WEAKEST POSSIBLE LOGIC: recognizes
arguments of the form P q, P, therefore q as
valid, where P stand for the truth of a set of
sentences.
: An additional premise would be needed to be valid.
: Inference rules of the strongest possible logic are
replaced by object language sentences.
: Every valid argument must contain a premise of the form
P q to specify that conclusion q follows from the other
premises.

From Strong to Weak logic

All valid arguments have the VALIDITY of the
argument as one of their premises.
The truth of premises gives the validity of the
argument.

V. Pragmatism and
the choice of a Logic

Pragmatism and the choice

of Logic
No such thing as THE logic.
Any realistic logic should be somewhere in
between the strongest and weakest possible
logics.
TRADE-OFF: The weaker the logic is, the
simpler it tends to be.
: Stronger logics are more
useful to test arguments for their validity.

 Use logics which are most suited for the

domain in question.
Logic to be adapted the way in which the domain to
which it is applied, is conceptualized.

VI. Rules and

Principles in
Reason-based Logic

 Legal principles have the structure of conditionals

Principles only generate reasons which must be
considered in combination with possible other reasons,
rules guarantee their conclusions when they are applied

If a principle generates exceptions to its competitors, the

reason for its conclusion has no competition anymore.

VII. Misrepresenting the

weighing of reasons as
rule-based Arguments

Misrepresenting the weighing of

reasons as rule-based Arguments
Arguments based on the PS-Logic
- sequence of instantiated rules, where the rules are
chained by their conclusions and conditions.

Which argument is the stronger is determined by

priority relations over the rules on which the
arguments are based.

 Arguments can influence the outcome of legal cases

does NOT show that the law is about arguments, but
rather that our views about the law can be influenced by
arguments.

If a logic for a domain does not use the conceptualization

of the domain itself, the gain in logical simplicity must be
bought at the cost of more complex and often unnatural
formalizations of the domain knowledge.

VIII. What to Expect

from Legal Logic?

Whats NOT to expect from Legal Logic?

We should not expect from legal logic that it is a full
theory of legal problem solving.

It is merely a Theory of valid legal reasoning in a broad

sense

What to expect from Legal

Logic?
Tools that facilitate the logical evaluation of
informal legal arguments and that seek, for
this purpose to adopt as much as possible the
conceptual framework of real legal reasoning

The study of legal logic should start with the

law, and not with formal logic

We should take the law as the starting

point for our research on legal logic, and

not already existing systems of non-legal
logic.