IMPORTANCE OF LEGAL REASONING IN

LEGAL DRAFTING

ASSIGNMENT # 1 SEMESTER SPRING-2021

Submission Date (April 8, 2021)

BY

AREEJ ANWAR

ROLL # 17161624-046

LAW-421 (Legal drafting)

LL.B. (Bachelors of Laws) CAM

Submitted To

MAM RABIYA ILYAS

School of Law

UNIVERSITY OF GUJRAT
Legal reasoning:
Legal reasoning is a method of thought and argument used by lawyers and judges when applying
legal rules to specific interactions among legal persons. Legal reasoning in the case of a court’s
ruling is found in the ‘Discussion or Analysis’ section of the judicial ruling.
Legal reasoning is the particular method of arguing used when applying legal rules to particular
interactions among legal persons. While particularly relevant to the tasks of lawyers and judges,
the requirements of legal reasoning also affect the legislator because addition of new rules or
modification of existing ones needs to be done in ways that permit effective functioning of the
entire ensemble of legal rules. Thus legal reasoning appears in two forms, legislative drafting and
application of rules to cases. While each has its own distinct character and function in a legal
system, both draw on the same set of reasoning skills.
The process of legal reasoning in law-application begins by accepting the relevance of the law
and proceeds to work within the existing legal system. This acceptance and spirit of working
within does give legal reasoning some bias towards maintaining the existing rules; however, that
bias does not amount to an unthinking assumption that the law as it stands is always just, fair, or
practical. History contains many examples of judges using the “margins of appreciation” allowed
within the law to avoid applying the existing rules in ways that would likely result in unfair or
otherwise undesirable outcomes. It also contains many examples of efforts to change the legal
system by moving away from law-application and returning to the law-making process to secure
revisions of the rules.
Legal drafting:
1. "Legal drafting" can mean the preparation of any written legal document--a motion, a
letter, a brief, a memo, or a contract. Lawyers and law teachers use the phrase in this way
all the time: "Draft a brief" or "draft a letter."
2. "Legal drafting" can mean the task of preparing a transaction, which includes a lot more
than putting words on paper. It includes the substance of the underlying law, strategies
for representing a client in a transaction, the skill of negotiation, and the ability to close a
transaction.
3. "Legal drafting" can mean the writing of binding legal text. It is the skill of putting words
on paper to create rights and duties.
Five Methods of Legal Reasoning
1. Rule-Based Reasoning:
Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you
take a rule (a statute or a case holding) and apply it to a set of facts. (This is a type of deductive
reasoning.) Richard Neumann has stated that rules have at least three parts: "(1) a set of
elements, collectively called a test; (2) a result that occurs when all the elements are present (and
the test is thus satisfied); and (3) . . . a causal term that determines whether the result is
mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr., Legal
Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules
have "one or more exceptions that, if present would defeat the result, even if all the elements are
present." (Id.) An example of a rule would be that intentional infliction of emotional harm occurs
if 1) the defendant’s conduct is outrageous, 2) the defendant’s conduct is intentional, 3) the
defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if the facts
of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an
ex-girlfriend several times in the middle of the night to harass her (outrageous conduct;
intentional conduct) and this causes (causation) her severe emotional distress (element 4),
intentional infliction of emotional distress has taken place.
2. Reasoning by Analogy
Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs
when one argues that the facts of the precedent case are like the facts of the present case so that
the rule of the precedent case should apply to the present case. (A is like B, so the rule from A
applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild
animal, like a tiger, on her property is strictly liable for any damage caused by that animal also
applies to pit bulls because a pit bull, although not a wild animal, is inherently dangerous just
like a wild animal. The two cases are never exact; reasoning by analogy is a question of degree.
The writer must convince the reader that the facts of the two cases are similar enough that the
rule from the precedent case should apply to the present case.
3. Distinguishing Cases
Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues
that the facts of the precedent case are not like the facts of the present case so that the rule from
the precedent case does not apply to the present case. For example, a toy poodle is not like a wild
animal because toy poodles are not inherently dangerous so that the rule from the wild animal
cases that an owner of a wild animal should be strictly liable for any damage caused by that wild
animal should not apply to toy poodles.
4. Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a case would
create a precedent that is good for society. For instance, in early products liability cases, lawyers
argued for strict liability when a product injured a consumer because manufacturers could better
spread the cost of injuries than consumers. Policy-based reasoning can also be combined with
reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent
case also applies to the present case so the rule in the precedent case should also apply to the
present case.
5. Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive
reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and
by synthesizing those specific cases, they come up with a general rule. To synthesize a rule, look
at the similarities among the facts of the precedent cases and the differences among the facts of
the precedent cases. Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly
liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly
liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly
liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not
strictly liable for that personal injury.
Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes
personal injury or property damage is strictly liable for that personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are
inherently dangerous, while toy poodles are not. When two innocent parties are involved, the law
usually holds the party liable that keeps dangerous things, like wild animals. The rule applies to
both personal injury and property damage.
The Language as a Professional
Tool Contrary to the aphorism, a lawyer's stock-in-trade is neither time nor advice. It is words:
writing them, speaking them, and interpreting them. That is true not only because legal work
involves so much reading and writing, but —more importantly —because words are the most
fundamental tool lawyers use to gain advantage for their clients. The constant question for a
lawyer is how to use words to cause a result, whether in court, in negotiation, in drafting a
contract or a will, or in writing an appellate brief.
Legal writing should give the viewer a quick and clear view.
Writing in Four Stages Writing happens in four stages: (1) analyzing the issues and the raw
materials that can be used to resolve the issues and raw materials; (2) organizing them so that
they can be written about; (3) producing a first draft; and (4) rewriting through several further
drafts until the final product is achieved.
IMPORTANCE OF LEGAL REASONING IN DRAFTING
Prof. Douglas Lind
Ever since Justice Holmes asserted that “[t]he life of the law has not been logic: it has been
experience,” lawyers and judges in the United States have minimized the importance of formal
logic for understanding law and legal reasoning. Many legal scholars and practitioners have
feared that to acknowledge that logic is central to law would risk a return to the rationalistic
excesses of the formalistic jurisprudences that dominated nineteenth century legal thought.
1. Powerful. Legal1 reasoning is very powerful because it makes use of valid form of
detective argument where the explanation must be true
2. Simple method from a few fact human natures a number of inference can be drawn by
logical reasoning
3. substitute for experimentation it is not possible for the investigator to conduct
controlled experiment with legal phenomena in Laboratory tree he can therefore fall back
up on legal reasoning through deductive reasoning
 4. Actual and exact the method of legal reasoning lends from the generalization which are
accurate and exact
5. More realistic this method is more realistic because it studies the changes in condition
surroundings the social activities of men and their effect on social activities are analyzed
and display
6. Possibility of verification …. The method is more useful because its propositions can be
tested and verified easily.
7. Dynamic approach this method takes into consideration the changeable nature of
assumptions in its analysis. It does not consider facts to be stable. It is a dynamic method.

While it is true that many other factors — from self-interest to moral values, from psychology to
science — enter into the decision making of lawyers and judges, all such factors bear the ever-
present tincture of reason and logic. Trial attorneys may appeal to the psychology or sentiments
of the jury, but only so far as they reasonably expect to influence the jury to draw rational
inferences in their client’s favor. Self-interest may be the sole driving motive for each party in
the drafting of a contract, yet the recognition, grounded in reason, that insisting on onerous
provisions will likely undermine the entire contractual arrangement has the tendency to hold
everyone’s self-interest in check. And while adjudicative practice calls for a good deal of “value
judgment” in the choice, interpretation, and application of legal principles, such value judgments
are not free of the constraints of reason. As stated by one appellate court, “[E]very legal analysis
should begin at the point of reason, continue along a path of logic and arrive at a fundamentally
fair result.” (Sunrise Lumber v. Johnson, Appeal No. 165). To criticize, reverse, or overrule an
administrative or judicial decision as “arbitrary,” “capricious,” “unsupported by law,” or
“contrary to precedent” is to say nothing more, but nothing less, than that the decision is
deficient in logic and reason.
Logic may be defined as the science of the principles and conditions of correct thinking; or, in
other words, the science which directs our mental operations in the discovery and proof of truth.
Logic is a science in the sense that it is organized knowledge involving principles. The various
sciences have different fields for investigation, but all of them agree in their purpose, which is
the establishment of satisfactory information, bound together and illuminated by laws. Thus,
physics studies the most general characteristics of the physical world and seeks to reduce to
order and interpret the facts it discovers; botany examines the structures, functions and histories
of plants, and psychology gives its attention to the behavior of creatures possessing
consciousness. All these sciences seek to replace the loose and hazy notions of popular thought
by exact and systematic knowledge. Logic has the same purpose, but its field is peculiar. It
cannot be classed among the physical sciences which depend upon perception and measurement,
nor among the biological sciences, nor, finally, among the social sciences. In a very real sense
modern logic presupposes all these sciences and is somehow a science removed from things. It is
a science about the mental aspect of the sciences. The mediaeval logicians pointed out that the
mind first "intends" or directs itself upon the external world, and that only afterwards does it
direct itself upon the mental processes and methods it has used. We may say that logic involves a
thinking about thinking.
But there is another - and perhaps greater- utility in the study of logic: the advantage of the
admirable mental discipline which the study of the science indirectly and unconsciously
involves. It is by this mental training rather than by the explicit, positive knowledge of its
technical rules, that logic gives us the power and habit of thinking clearly. Probably more than
any other science, a careful study trains and develops the reasoning powers, not merely the
power of thinking consistently, but the power of discovering the truth.
An eminent jurist of the Supreme Court of California, in his article on the influence of Logic on
Law said, "The logic referred to is the Aristotelian logic and not the logic that is taught in our
universities." In Aristotle's logic, Demonstration as the clearly perfect means of reaching
Science, is his supreme concern. His view of logic is, therefore, not the narrower but the wider
view. He paid more attention, however, to the application of the syllogisms to necessary matter
of metaphysics and mathematics than to contingent matter of physical and concrete social life.
His theory, therefore, has developed in the aftertime, especially by the scholastic philosophers of
the middle ages, tended towards a predominantly deductive and formal treatment of our thought
processes.