A SYLLABUS ON

TECHNIQUES IN LEGAL REASONING

By:

HON. ZENAIDA N. ELEPANO

Commissioner, Legal Education Board
Professorial Lecturer, PHILJA, Supreme Court
Retired Court Administrator
INTRODUCTION:
1.WHAT IS MEANT BY THINKING LIKE A LAWYER?
The answer is: Thinking logically. Employing logic to
construct arguments. On a narrower legal perspective,
it means reading cases and statutes and using them to
develop arguments based on issues that are raised from
a factual matrix. In a broader sense it means precise,
rational, dispassionate and analytical thinking.
2. Logic is the life blood of the law. Even if a lawyer
knows that what he is saying is right, if he cannot
convince the audience – reader or listener – through
logical reasoning that what he said is right, all his
arguments will fail.
3. Logical reasoning, according to legal theorists, is about
how lawyers argue the position they take, and how judges
decide cases. It is a method of thought and argument
applying law to specific factual situations. In arguments
made by lawyers in legal briefs submitted to the court, legal
reasoning is found in the portion of argumentation. In
decisions penned by judges, it is located in the analysis of
the judicial ruling.
3. According to Aldisert, Clowney and Peterson, there are
two recognized central forms of legal reasoning:
Arguments from Precedent – where an earlier decision is
applied in a later case because the two cases are the same;
and

Arguments from Analogy – which involves an earlier decision

being used in a later case because the later case is similar to
the earlier one.
But these two forms raise some basic issues: when
are two cases considered “the same” to apply
precedent; and when are they deemed “similar” to
apply analogy?
4. First, a backgrounder:
The CORE ELEMENTS of Legal Reasoning:
• The legal issue of the case
• The relevant facts of the case
• The legal rule to be applied
• Other considerations that may be brought
before the court
Example: An UNLAWFUL DETAINER CASE.

Does the court have jurisdiction – (over the nature

of the case, over parties? Case filed within
prescriptive period? Barangay conciliation,
mediation?)
What factual elements constitute UD? (Was there
tolerance before or simultaneous to entry into the
property?)

What is the law/rule applicable?

Is there an additional factor e.g. ownership, e.g. to

be considered by the court?
5. To be able to approach and address these
elements clearly and concisely, one may use
Deductive or Analytical Reasoning.
A. DEDUCTIVE REASONING –
Corbett and Connors, describe deductive
reasoning as “an act of the mind in which, from the
relation of two propositions to each other, is inferred
a third proposition.”
In other words, deductive reasoning arrives at a
conclusion that is compelled by known facts.
6. The specific form of deductive reasoning is
SYLLOGISM – in which a conclusion is inferred or
deduced from two premises. (E.g. Earth is bigger
that Mars; Jupiter is bigger than Earth. Ergo,
Jupiter is bigger that Mars)
a. Syllogism – logical syllogism exhibits “pristine
logic.” In order to exhibit “pristine logic,” a legal
argument should adhere to the form of the logic
syllogism.
b. A syllogism consists of a major premise, a
minor premise, and a conclusion. A major premise
usually states a general rule. A minor premise
makes a factual assertion about a particular
person or thing or a group of persons or things.
Example:
– Major Premise: All men are mortal.
– Minor Premise: Socrates is a man;
– Conclusion: Socrates is mortal.
• The major premise states a broad and
generally applicable truth. The minor
premise states a specific and usually narrowly
applicable fact. The conclusion draws upon
these premises and offers a new insight that
is known to be true based on the two
premises. The basic principle underpinning
the syllogism is that “ What is true of the
universal is true of the particular.” (This type
of syllogism is called the categorical
deductive syllogism.)
In legal arguments, the major premise is generally a
statement of law. The minor premise is usually a
statement of fact. A conclusion connects the minor
premise with the major premise, and tells us how the
general rule applies to the facts at hand. In legal
arguments, this process is called applying the law to the
facts.

Example:
• Major Premise: A case for unlawful detainer filed
beyond one year from the time tolerance ceased (i.e.
date of demand to vacate), will be dismissed.
• Minor Premise: This case for unlawful detainer was
filed beyond the one year period from demand.
• Conclusion: This case for unlawful detainer will be
dismissed.
c. In order for a syllogism to be valid, it must be
logically impossible for its premises to be true and
its conclusion to be false. In other words, a
syllogism is valid if, given the truth of its premises,
the conclusion “follows” logically such that it, too,
must be true. Note that an argument is not valid
simply because its premises and conclusion are all
true. Consider this example:
Some men are tall. Socrates is a man. Ergo,
Socrates is tall.
(This example is a fallacious argument. Socrates
may belong to the category of men who are not
tall.)
7. SOME COMMON FALLACIES IN LOGICAL
REASONING:
(Ruggero, Clowney and Peterson: Logic for Law
Students)

Arguments, like [people], are often pretenders. -

Plato

Fallacious and misleading arguments are most

easily detected if set out in correct syllogistic form.
- Immanuel Kant
a. Definition: A FALLACY is an error in reasoning. A
fallacious argument is one that may appear correct, but
on closer examination proves incorrect. Even if the
premises and conclusion are all correct, an argument
may still be fallacious if the reasoning used to reach that
conclusion is not logically valid.

b. Types of fallacies:
Most of these fallacies may be grouped in two broad
categories:
• Fallacies of relevance occur when the premises “miss
the point” and fail to provide logical support for the
conclusion.
• Fallacies of ambiguity occur when the meaning of a
key word or phrase shifts and changes, so that the
terms do not really “match up” within the argument.
 RECOGNIZING SOME SPECIFIC FALLACIES
Some of the most common fallacies that lawyers and
judges commit are the following:

1. Appeal to Inappropriate Authority. This fallacy arises

when the authority invoked has no legitimate claim in the
matter at hand. In legal writing, this fallacy occurs when a
secondary authority or a case from another jurisdiction is
cited as controlling authority. It also occurs when the
opinion of an expert in a matter outside his or her
expertise is used.
• Example: “The possession of nuclear weapons is a
moral abomination. Even Edward Teller, the ‘father of
the hydrogen bomb,’ urged the United States to halt
production once the full extent of their destructive
power became known.”
2. Disconnected Premises. In a standard logic syllogism,
there must be exactly three basic concepts: a “major term”
that occurs in the major premise, a “minor term” that occurs
in the minor premise, and a “middle term” that occurs in
both the major and minor premises, but not in the
conclusion. (The conclusion should connect the major and
minor terms.) The middle term is the glue that holds the
argument together. That glue must be applied in the right
places, or the argument will fall apart.

• Example: “Murder is the intentional killing of a human

being. The defendant is an escaped convict who was
already serving a life sentence for the murder of a police
officer and was apprehended just two miles from where
the victim’s body was found. Therefore, the defendant is
guilty of murder.”
3. Irrelevant Conclusion or Non Sequitor. This fallacy occurs
when the premises “miss the point” and fail to substantiate
the conclusion, instead supporting some other, perhaps
unstated, conclusion. Often, this fallacy arises when we
advocate for a particular objective, but offer only generalized
support for that objective that could equally well support an
alternative approach.
• Example: All milk is good; Cows give milk; As for me, give
me liberty or give me death!. (No connection between
premises and conclusion.)

4. False Cause. This fallacy consists in treating something as a

cause that is not, or should not be assumed to be, a cause.
Most commonly, the mistake is in assuming that A caused B
simply because A preceded B.
• Example: I sang and then it rained hard. I will never sing
so that it will not rain hard.
5. Overzealous application of a general rule. This
fallacy occurs when we apply a generalization to
an individual case that it does not necessarily
govern. The mistake often lies in failing to
recognize that there may be exceptions to a
general rule.

• Example: All final judgments are executory.

The decision in this case has become final.
Therefore it is executory. (The major premise
disregards several important exceptions.)
• Example: “The Constitution guarantees freedom
of speech. Therefore, our client can not be held
liable for anything she has said.”
6. Hasty Generalization. This fallacy is the converse of the preceding one. It
occurs when one quickly establishes a broad principle or general rule based
on specific factual observations.
• Example: “They say deep-fried food is bad for you. Nonsense. I’ve been
eating fried porkchops and french fries my whole life, and I’m in perfect
health.”
• Example: “In the present case, the dog that attacked the small child
clearly had a ‘vicious propensity.’ Two years earlier, that same dog had
bitten a postal worker who came on the property to deliver the mail.”

7. Circular argument. This fallacy occurs when one assumes the truth of
what one seeks to prove in the very effort to prove it. In other words, an
argument is fallacious when the conclusion lies buried in the premises used
to reach that conclusion. This is also known as begging the question.
Question-begging arguments often mask themselves in clever rhetoric. They
can be easy to miss because they often sound good.
• Example: Gentlemen prefer blondes. Peter is a gentleman. Why?
Because he prefer blondes.
• Another: I hire a driver to drive me to my lectures. Why do you lecture?
So I can earn money to pay my driver.
8. Complex Question. This fallacy occurs when the question
itself is phrased in such a way as to presuppose the truth of a
conclusion buried in that question. The solution is generally to
root out the buried assumption by “dividing the question.”
• Example: “Why is the extrajudicial killings of drug suspects a
more effective way to get rid of this country’s drug problem
than arresting the suspects and prosecuting them in our
courts?
9. Ambiguity. Using a key word or phrase that has two or more
different meanings in the same argument. Because many words
and phrases are naturally ambiguous (have two or more
meanings, or even a range of meanings), this fallacy often
escapes notice.
• Example: Nothing is better than God. A centavo is better
than nothing. Ergo, A centavo is better than God
• Example: Jonathan Swift said: “No man will take counsel,
but every man will take money; therefore, money is better
than counsel.”
10. Composition. We commit the fallacy of composition
when we mistakenly impute the attributes of a part of a
whole to the whole itself.

• Example: “A strand of rope is weak, and cannot

possibly support the weight of a full-grown person. A
rope is nothing but a collection of weak strands.
Therefore, a rope cannot possibly support the weight
of a full-grown person.”
• Example: An atom is invisible. I am made up of
atoms. Therefore I am invisible.
• Example: “The prosecution has offered nothing but
circumstantial evidence. As we have seen, not one of
these pieces of evidence conclusively proves that my
client committed the robbery. Therefore, the
prosecution has not carried its burden of proof
beyond a reasonable doubt.”
11. Division. This fallacy is the reverse of the fallacy of
composition. We commit the fallacy of division when we
mistakenly argue that attributes of a whole must also be
present in each part or constituent of that whole.
• Example: “A rope is strong, and can easily support the
weight of a full-grown person. A rope is nothing but a
collection of individual strands. Therefore, a strand of
rope is strong, and can easily support the weight of a full-
grown person.”

12. Argument from Ignorance. An argument is fallacious

when it maintains that a proposition is true because it has
not been proved false or false because it has not been
proved true.
• Example: He is suspected to be a member of the NPA
because there is nothing in the government files to
disprove that he is not.”
13. Attack Against the Person or Ad Hominem. This fallacy occurs
when the thrust of an argument is directed, not at a conclusion, but
at the person who asserts or defends it.

• Example: This witness is lying. Why? Because he has a criminal

past.
• Example: During closing argument, a defense lawyer does not
respond to the evidence and legal arguments offered by the
plaintiff’s attorney, but instead characterizes the plaintiff’s
attorney as a hired gun, an untrustworthy “ambulance-chaser”
who is only out to collect his contingent fee.
• Example: Attacking the personal character or attributes of the
opposing counsel or party (unless this is the issue in the case) .
In a sexual harassment case (CSC vs. Allison Benagan), the Court of
Appeals ruled that “the appellant is one from whom no one
would steal a kiss”. The SC overruled the CA on the ground that
the personal features and traits of the victim had no relevance to
the issue of sexual harassment.
14. Argument from Force. An argument is fallacious when it substitutes
veiled threats for logical persuasion or when it asserts that something
must be the case because “that’s just the way things are.”
• Example: Let’s suppose Pres. Duterte’s Press Secretary tells his staff:
“The President continues to have confidence in the DOJ Secretary. I
have confidence in the Justice Secretary, and you ought to have
confidence in him too, because we all work for the President and
because that’s the way things are. And if anyone has a different
view of that...he can tell me about it because we’re going to have to
discuss your employment status.”
15. Appeal to Emotion. This fallacy occurs when expressive language
designed to excite an emotion like outrage or pity is used in place of
logical argumentation.
• Example: if found guilty, my client faces 20 years in prison.
Therefore, I ask this court, can it in good conscience send a devoted
husband and father of seven children, a man who has dedicated his
life to providing for his family, who has participated actively in his
church, and who given over 10% of his income to charities, to prison
for such a length of time that he will not be able to watch his
children grow up or support them financially through their college
years?”
8. INDUCTIVE REASONING: GENERALIZATIONS
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. You will have to venture into the land of
induction, the second category of logic.
Inductive generalization is a form of logic in which big,
general principles are derived from observing the outcomes of
many small events. You reason from multiple particulars to the
general. Suppose you are asked to determine whether all men
are mortal (conclusion). If you lack a way of arriving at this
conclusion, you have to turn to inductive reasoning. You might use
what you know about particular men and their mortality, as
follows:
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 is a man and
Ronald Reagan is mortal.
Therefore, all men are mortal.
 inductive logic however is not so absolute. It does not
produce conclusions guaranteed to be correct, no matter
how many examples are used. Thus, inductive reasoning is a
logic of probabilities and generalities, not certainties. It
yields workable rules, but not proven truths.

When there is no clear statute—no governing

authority—to provide the major premise necessary for a
syllogism, you must build the major premise yourself - draw
upon “the cumulative experience of the judiciary”—the
specific holdings of other cases. Once you have assembled
enough case law, fashion a general rule that supports your
position. Warning: Inductive generalizations are dangerous.
9.. ANALOGY
Basically, analogy is a process of drawing similarities
between things that appear different.
In the world of the law, 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 other’s outcome.
Analogical Reasoning is 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.
This form of reasoning is different from deductive logic or
inductive generalization (deduction requires us to reason
from universal principles to smaller, specific truths. And 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. In the
language of logicians, analogy is a process of reasoning from the
particular to the particular.

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 relevancy—whether
the compared traits resemble, or differ from, one another in
relevant respects. 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.

For an analogy to prosper, show that the similarities in the

facts of the two cases outweigh the differences. If the relevant
similarities outweigh the relevant differences, the outcomes of
the cases should be the same.
IV. IN CONCLUSION -
• Aldisert, Clowney and Peterson advise to
always bear in mind: An argument that is
correctly reasoned may be wrong, but an
argument that is incorrectly reasoned can
never be right..
Reference and Resource Materials:
• Riggero J. Aldisert, Stephen Clowney, and Jeremy D. Peterson:
Logic for Law Students; How to Think Like a Lawyer (3.30.2007)
• Vern Walker: Discovering the Logic of Legal Reasoning, Hofstra
Law Review Vol.5, 1687
• Stanford Encyclopedia of Philosophy (2001, 2010) Interpretation
and Coherence in Legal Reasoning
• Neal Ramee: LOGIC AND LEGAL REASONING: A GUIDE FOR LAW
STUDENTS, iting Irving M. Copi and Carl Cohen in Introduction to
Logic, 244 (1994).
 Ruth Ann McKinney, in Research, Reasoning,
Writing and Advocacy(RRWA) CoursePack, 89-93 (2000).
• Antonin Scalia and Bryan Garner, Making Your Case: The Art of
Persuading Judges, Thomson/West, Minnesota, 2008.
• Krasnow Waterman, Logical Reasoning
• Anne-Marie Slaughter
“On Thinking Like A Lawyer” (Used by
permission of Harvard Law School; first printed in Harvard Law
Today May, 2002)
• Michael C. Dorf and Clinton M Sandvick, The Truth About The
Socratic Method
GOOD LUCK AND
GOOD DAY!