THE BATMAN LEGAL TECHNIQUES & LOGIC 7012

ON LOGIC IN THE LAW: “SOMETHING, BUT NOT

ALL”
MEMBERS:

 Bayking, Mirasol  Masdo, Kimberly Lun  Lunop, Mark Johnson

 Bulado, Jane Caryl  Jadraque, Rose Jhirel  Orcullo, Lourelyn

SUSAN HAACK
Introduction
o SUSAN HAACK
 Born on 1945
 Professor in the Humanities, Cooper Senior Scholar in Arts and Sciences, professor of
philosophy, and professor of law at the University of Miami in Coral Gables, Florida
 Writings:
 Defending Science – Within Reason: Between Scientism and Cynicism
 Deviant Logic, 1974
 Deviant Logic, Fuzzy Logic: Beyond the Formalism. 1996
 Evidence and Inquiry
 Evidence Matters: Science, Proof and Truth in the Law
 Manifesto of a Passionate Moderate: Unfashionable Essays
 Philosophy of Logics, 1978
 Pragmatism, Old and New
 Putting Philosophy to Work: Inquiry and Its Place in Culture
 Trial and Error: The Supreme Court’s Philosophy of Science
 Two Fallibilists in Search of the Truth (with Kolenda, Konstantin), 1977
 Vulgar Rortyism.
 https://en.wikipedia.org/wiki/Susan_Haack
o OLIVER WENDELL HOLMES, JR.
 March 8, 1841 – March 6, 1935
 American jurist and legal scholar who served as an associate justice of the Supreme Court
of the United States from 1902 to 1932
 Retired from the court at the age of 90, an unbeaten record for oldest justice on the
Supreme Court
 Previously served as a Brevet Colonel in the American Civil War, in which he was wounded
three times
 Weld Professor of Law at his alma mater, Harvard Law School
 Appointed by President Theodore Roosevelt in 1902, he supported the constitutionality
of state economic regulation and came to advocate broad freedom of speech under First
Amendment
 The Journal of Legal Studies – identified as the third-most cited American legal scholar of
the 20th century
 Legal realist, as summed up in his maxim, “The life of the law has not been logic: it has
been experience”

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 Works:
 The Common Law
 Noteworthy Supreme Court Opinions
 Abrams vs. United  Schenck vs. United
States States
 Buck vs. Bell  Silverthorne Lumber vs.
 Lochner vs. New York United States
 Otis vs. Parker
 https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr.
o CHRISTOPHER COLUMBUS LANGDELL
 May 22, 1826 – July 6, 1906
 American jurist and legal academic
 Dean of Harvard Law School from 1870 to 1895
 Legacy lies in the educational and administrative reforms he made to Harvard Law School,
a task he was entrusted with by President Charles Eliot
 Applied the principles of pragmatism to the teaching of law as a result of which students
were compelled to use their own reasoning powers to understand how the law might
apply in a given case
 Works:
 A Selection of Cases on Sales of Personal Property (1872)
 A Summary of Equity Pleading (1877, 2nd ed., 1883)
 Brief Survey of Equity Jurisdiction (1905)
 Cases in Equity Pleading (1883)
 Selection of Cases on the Law of Contracts (1871, the first book used in the case
system; enlarged, 1879)
 https://en.wikipedia.org/wiki/Christopher_Columbus_Langdell
o GOTTLOB FREGE
 Full name: Friedrich Ludwig Gottlog Frege (Pronounciation:
https://www.youtube.com/watch?v=8cbQwcB99R4)
 November 8, 1848 – July 26, 1925 (aged 75)
 German philosopher, logician, and mathematician
 Mathematics professor at the University of Jena
 Father of Analytic Philosophy concentrating on the philosophy of language, logic, and
mathematics
 Considered to be the greatest logician since Aristotle
 Notable Works:
 Begriffsschrift (1879)
 The Foundations of Arithmetic (1884)
 Basic Laws of Arithmetic (1893-1903)
 https://en.wikipedia.org/wiki/Gottlob_Frege
o CHARLES SANDERS PEIRCE
 September 10, 1893 – April 19, 1914 (aged 74)
 American philosopher, logician, mathematician and scientist
 Father of Pragmatism

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 His published works run to about 12,000 printed pages and his known unpublished
manuscripts run about 80,000 handwritten pages
 1934 – Paul Weiss (American philosopher, Founder of The Review of Metaphysics and the
Metaphysical Society of America) called Peirce “the most original and versatile of
American philosophers and America’s greatest logician”
 https://en.wikipedia.org/wiki/Charles_Sanders_Peirce
1880 - Oliver Wendell Holmes criticized “Logical Theology of Law” articulated by Christopher Columbus
Langdell
o “A legal system cannot be adequately understood as a system of ‘axioms and corollaries’; and
this element of truth is not obviated by the more powerful logical techniques that are now
available.”

1. AN OLD STORY, AND ITS RELEVANCE TODAY

Oliver Wendell Holmes – The Common Law
o “It is something to show that the consistency of a system requires a particular result; but it is not
all.
o When published, it appeared this book, neither would have been aware of the revolution in logic
which had just begun by Frege and Peirce
“The life of the law has not been logic; it has been experience.”
Holmes’s review on Columbus Langdell – Selection of Cases on the Law of Contracts
o “An extraordinary production, -- equally extraordinary in its merits and its limitations”
ELEGANTIA JURIS
o “Logical integrity of the system as a system” that it loses sight of the fact that “the law finds its
philosophy not in self-consistency… but in history and the nature of human needs”.
o Logical coherence of part with part
o Some thoughts on two leading judgments
Langdell and Holmes Objective: SYLLOGISM
o Syllogism – an instance of a form of reasoning in which a conclusion is drawn (whether validly or
not) from two given or assumed propositions (premises), each of which shares a term with the
conclusion, and shares a common or middle term not present in the conclusion
 Example:
 All dogs are animals; all animals have four legs; therefore, all dogs have four legs.
 All mammals are animals. All elephants are mammals. Therefore, all elephants are
animals.
MUTATIS MUTANDIS
o (Used when comparing two or more cases or situations) making necessary alterations while not
affecting the main point at issue
o “All necessary changes having been made
Arguments:
o Significant difficulties in Langdell’s project that Holmes fails to notice, and significant weaknesses
in some of the criticism Holmes does make, there is nonetheless an important element of truth
in Holmes’s insistence
 AXIOMS
 a statement or proposition which is regarded as being established, accepted, or
self-evidently true
 a statement or proposition on which an abstractly defined structure is based
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 COROLLARIES
 a proposition that follows from (and is often appended to) one already proved
 a direct or natural consequence or result
o The newer logical techniques may resolve some of the difficulties facing Langdell’s project, they
don’t obviate this element of truth in Holmes reservations
“Logic cannot reach the heart of the matter, that through ‘it is something…, it is not all.”

2. LANGDELL’S LOGICAL THEOLOGY OF LAW, AND HOLMES’S HERESY

Introduction
o THORSTEIN VEBLEN
 Full Name: Thorstein Bunde Veblen (Pronunciation:
https://www.youtube.com/watch?v=xQpI_6s8uQY)
 July 30, 1857 – August 3, 1929 (aged 72)
 Norwegian-American economist and sociologist
 Well-known critic of capitalism
 Historians of economics regards him as the Founding Father of the Institutions and
Technology known as Veblenian Dichotomy
 Works:
 The Theory of the Leisure Class (1899)
 The Instinct of Workmanship and the State of the Industrial Arts (1914)
 Imperial Germany and the Industrial Revolution (1915)
 An Inquiry into the Nature of Peace and the Terms of its Perpetuation (1917)
 The Vested Interest and the State of the Industrial Arts (1919); republished as
The Vested Interest and the Common Man: The Modern Point of View and the
New Order
 The Dial
 The Engineers and the Price System (1921)
 https://en.wikipedia.org/wiki/Thorstein_Veblen
o RALPH WALDO EMERSON.
 May 25, 1803 – April 27, 1882 (aged 78)
 American essayist, lecturer, philosopher, abolitionist, and poet
 Led the transcendentalist movement of the mid-19th century
 Seen as the champion of individualism
 Prescient critic of the countervailing pressures of society
 Works:
 Nature (1836, essay)  Self-Reliant (essay)
 The American  The Over-Soul
Scholar (1837, (essay)
speech)  Circles (essay)
 Essays: First Series  The Poet (essay)
(1841)  Experience (essay)
 Essays: Second
Series (1844)
 https://en.wikipedia.org/wiki/Ralph_Waldo_Emerson
o A
LANGDELL
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o Conceives of law as a “science” which means “systematic body of knowledge”.
 Almost as if responding in anticipation to Thorstein Veblen’s comment: “in point of
substantial merit the law school belongs in the modern university no more than a
school of fencing and dancing.”
 Almost as if chiming in with Ralph Waldo Emerson’s famous observation that “a foolish
consistency is the hobgoblin of little minds, adored by little statesmen, philosophers,
and divines.
o Selection of Cases on the Law of Contracts:
 Law, considered as a science, consists of a certain number of principles or doctrines.
 If these doctrines could be so classified and arranged that each should be found in its
proper place, and nowhere else, they would cease to be formidable in their number.
o A legal system is an interconnected congeries of key concepts which figure in a manageable
number of key “doctrines” or “principles”.
 LAWS ARE CONNECTED WITH THE PRINCIPLES AND DOCTRINES THAT REQUIRES
MASTERY!
o Summary of LAW OF CONTRACTS
 Before an act by the promise, the so-called promise is in law only an offer… It is not
until it is accepted by the promise that it becomes in law a promise.
 Civil Code: “a meeting of two minds between two persons whereby one binds
himself, with respect to the other, to give something or to render some
service”
 MAILBOX RULE
 If the contract must become known to the offeror the moment it is made, it
must equally become known to the offeree the moment it is made; but a
contract inter absentes can’t become known to both parties at the same
moment; and hence it need not become known to the offeror the moment it
is made.
o Forms of a Syllogism
 Avers that it is seen to be unsound: “the fault is in the major premise, which is untrue”
o Weaknesses:
 How unsatisfactory the procedure on how he arrive at his analysis of legal concepts
seems to be
o He implicitly acknowledges that there is no single, coherent concept common to all cases.
o Presented his logical method not as a descriptive account of how judges do in fact decide
cases, but as prescribing how cases ought to be decided.
HOLMES
o Objects that Langdell is “so entirely interested in the formal connections of things, or logic”
that he ignores “the forces outside (the law) which have made (it) what it is, and without a
grasp of which “no one can ever have a truly philosophic mastery over the law”. He fails to
see that judges’ decisions are affected by the moral and political thinking of the day, by
considerations of policy, and even by prejudice, far more than by logic.
 The theory of legislation is a scientific study; but the effort to reduce the concrete
details of an existing system to the merely logical consequence of simple postulates is
always in danger of becoming unscientific, and of leading to a misapprehension of the
nature of the problem and the data.
o The Path of the Law
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 Arguing against “the notion that the only force at work in the development of the law
is logic” – which he now describes, apparently without irony, as a FALLACY.
 Any reasonable account of law, like any reasonable account of anything, must be in
some vague sense “logical”. And he acknowledges that lawyers speak and write in the
language of “analogy, discrimination, and deduction”.
 Targets not just Langdell, but also the judicial formalists who, though not exactly legal
theologians of the pure Langdellian stripe, insisted on narrowly literal readings of the
law.
 Speak out many times against this kind of quasi-logical formalism.
 Delusive exactness is a source of fallacy throughout the law (1921)
 a
o Legislation is not the only way for the law to adapt, or always the best way, that adjustments
and readjustments through judicial reinterpretation are both inevitable and desirable.
 The distinction between the legislative and executive action with mathematical
precision and divide the branches into watertight compartment
o Speech: Teach Law as a Science
 Importance of legal scholars
 To place the American law school in the position occupied by the law faculties in the
universities of continental Europe
 There could be no justification for making it an academic subject of university
teaching; if it were merely a “species of handicraft” it would be a skill best
acquired, not from lectures and books, but by apprenticeship, and “the
university [would] consult its own dignity in declining to teach it.”
o Views:
 A serious acknowledgement of the contingent, historically conditioned character of
legal systems, of how they evolve and adapt to changed social circumstances over
time, of how judges interpret and reinterpret statutes, and precedents in the light of
current moral and political ideas.
 Acknowledges the desirability of consistency.
o
SAACK
o As logicians would have been aware by the time Holmes and Langdell wrote, Aristotle’s logic
is unable to handle arguments essentially involving relations.
o Neither Langdell nor Holmes sounds much like a logician.
o Neither seems to have had more than a layman’s grasp of what logic is and does.
o Langdell presented his argument entirely informally. Holmes’s critique includes no logical
specifics.
o Most of the present purpose, neither shows any awareness that by the turn of the 19 th
century the old syllogistic logic with which they apparently had at least a passing
acquaintances was being superseded by a newer and far more powerful logical apparatus.
o The old debate between Langdell and Holmes remains of more than merely antiquarian
interest.

3. THE REVOLUTION IN LOGIC AND ITS AFTERMATH

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4. THE NEW LOGICAL THEOLOGY, AND HAACK’S HERESY

5. ENVOI

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