The Signi cance of Logic for

Law

October 16, 2014

By Prof. Douglas Lind
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. It was, after all, against that formalist tradition that
Holmes wrote. And it was in spirited opposition to that tradition
that members of the Legal Realist movement in America, as well
as the Free Law movement in Europe, directed much of their
energies early in the twentieth century.
[T]o comprehend is essentially to draw
conclusions from an already accepted
logical system.
Albert Einstein
There is good reason to remain skeptical of overly rationalistic
accounts of law and judicial practice. The weave of historical
doctrine, legal principle, and factual nuances that goes into each
judicial decision is far too intricate to permit critical appraisal
under any single evaluative method, including the principles of
logic. So we are rightfully apprehensive when we recollect the
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formalistic visions of nineteenth century jurists — visions which
found the essence of adjudication in the logical derivation of
conclusions necessarily required by predetermined legal
principles.
Yet it is somewhere between strict formalistic jurisprudence and
an outright disregard for logic and argumentative form where the
law and judicial practice really nd repose. Though all that is
typically repeated of Justice Holmes’ view is the pithy remark
quoted above, his jurisprudential writings together with his judicial
opinions show clearly that he never intended to suggest that logic
is not a central aspect of law or judicial decision making. He, as
well as the legal realists and other critics of legal formalism, well
recognized that evaluating and creating arguments lie at the heart
of the crafts of lawyering and judging.
It is thus worthwhile for practitioners and students of the law alike
to possess an understanding of the basic principles of logic that
are used regularly in legal reasoning and judicial decision making.
This understanding requires, in important part, skill in navigating
the processes of inductive reasoning — the methods of analogy
and inductive generalization — by which inferences are drawn on
the basis of past experience and empirical observation. The
common law method of case law development, as well as the
general prescript often referred to as “the Rule of Law” — that like
cases be decided alike — are grounded logically in inductive
reasoning.
Equally important is a second basic category of argumentation —
deductive logic, especially the deductive argument forms known
as “syllogisms.” These are the classic forms of deductive
argument consisting of a major premise, a minor premise, and a
conclusion. It was this aspect of logic that a century ago stirred
such virulent opposition to formalism. And it is this aspect of logic
which was so severely downplayed throughout the twentieth
century. Yet even a rudimentary understanding of deductive logic
gives lawyers, judges, and students of the law a valuable tool for
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determining whether an argument in a legal opinion or brief is
valid or fallacious.
In essence, the domain of the law and, within that domain,
perhaps most especially the practice of judicial decision making
are exercises in practical reasoning. Law, to be sure, involves
more than logic. Yet the myriad of factors that contribute to good
lawyering and fair judging suggest that the “life of the law,” while
not logic alone, is a manifold of activities that all use and depend
upon reason in specialized ways. The precision of detail required
in the drafting of contracts, wills, trusts, and other legal
documents is a rational precision; the care in planning and
strategizing demanded of trial attorneys in deciding how to
present their cases is a rational care; the skill in written and oral
argumentation required for appellate practice is, quite obviously, a
rational skill; the talent expected of administrative law judges in
crafting coherent ndings of fact and conclusions of law is a
rational talent; and the ability of trial and appellate court judges to
separate, dispassionately and without bias, the kernel of
argument from the rhetorical and emotive chaff of adversarial
presentation, so as to render judgments that are justi ed under
the law, is a rational ability.
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 in uence 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
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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 de cient in logic
and reason.

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