Legal Reasoning

Critical Thinking and Logic in Formulating Arguments and Reasons for Decision

October 4, 2010 Tim Martiniuk, Legal Counsel Workers‟ Compensation Appeal Tribunal

“Logic is the anatomy of reason”
- John Locke (1632 – 1704)

“Logic is a systematic method of coming to the wrong conclusion with confidence.” - Anonymous?

by Ruggero J Aldisert (3rd edition (1997)) .) (2007) ► Logic for Lawyers : A Guide to Clear Legal Thinking. by Irving Copi and Carl Cohen (13th ed.Resources ► Introduction to Logic.

and experience. view is that legal reasoning is not a special kind of reasoning at all but rather ordinary reason (deductive and inductive) applied to legal problems. observation. gotten by long study. which is understood of an artificial perfection of reason. ► In . the modern. but not universal.What is Legal Reasoning? ► Legal ► Sir reasoning is reasoning about the requirements and application of the law Edward Coke (1607): “the common law itself is nothing else but reason. contrast. and not of every man‟s natural reason”.

involves both the construction and analysis of logical arguments. and decision makers are both argument makers and argument readers.► Therefore. the act of legal reasoning. ► Advocates . Understanding the nature of a good and bad argument benefits both the argument writer and the argument reader. like any reasoning.

” . avowed or unconscious. The felt necessities of the time. the prevalent moral and political theories. Oliver Wendell Holmes in The Common Law (1881) said with respect to the development of the common law:  “The life of the law has not been logic: it has been experience. even the prejudices which judges share with their fellow-men. have had a good deal more to do than the syllogism in determining the rules by which men should be governed. intuitions of public policy.Limits to Application of Logic ► ► Legal decisions cannot always be reduced to an application of logic.

and to admire the ingenuity with which those that are not so. containing some useful instruments.► “Logic is a large drawer. Lacon (1780-1832 – British author and clergyman). . are assorted and arranged”  Charles Caleb Colton. and many more that are superfluous. to avail himself of those instruments that are really useful. A wise man will look into it for two purposes.

What is an Argument? .

Argument is an intellectual process. It is a connected series of statements to establish a definite proposition . Contradiction is just the automatic gainsaying of anything the other person said”  Monty Python‟s Argument Clinic ...► “An argument is not the same as contradiction.

an argument is a set of one or more declarative sentences (or "propositions") known as the premises along with another declarative sentence (or "proposition") known as the conclusion. ► A deductive argument asserts that the truth of the conclusion is a logical consequence of the premises. an inductive argument asserts that the truth of the conclusion is supported by the premises.What is an Argument? In logic. ► .

Deductive reasoning is used in refining the created precept and in applying it to the facts before the court. ► In the common law. .► Most reasoning is a combination of deductive and inductive reasoning. inductive reasoning usually dominates the first stage of law making where cases are compared and their resemblances and differences are noted and a legal precept is created. Often we begin with inductive reasoning and then use the inductive conclusions as premises of deductive arguments.

Arthur Schopenhauer . so that when anyone used this or that particular trick.Fallacies of Reasoning It would be a very good thing if every trick could receive some short and obviously appropriate name. . he could at once be reproved for it.

fallacies are dangerous because most us are. ► Unlike obviously incorrect arguments. are psychologically persuasive.►A fallacy is not any mistaken inference or false belief but rather a typical error of reasoning fallacy is a type of incorrect argument ► Each ► It is customary to reserve the term fallacy for arguments that. fooled by some of them. although incorrect. . at one time or another.

► An informal fallacy may have a logical form but is false due to the characteristics of its premises or their justification. . ► A formal fallacy is a pattern of reasoning which is always wrong.► Fallacies can be formal or informal. This is due to a flaw in the structure of the argument.

Formal Fallacies ► Fallacy of Four Terms ► Fallacy of the Undistributed Middle ► Fallacy of the Illicit Process of the Major and Minor Term ► Fallacy of Negative Premises ► Fallacy of Affirming the Consequent ► Fallacy of Denying the Antecedent ► Fallacy of Missing Disjuncts ► Fallacy of Non-exclusivity .

Informal Fallacies ► Fallacies of Relevance (Distraction):  When an argument relies on premises that are not relevant to its conclusion. and that therefore cannot possibly establish its truth. the fallacy committed is one of relevance. ►Fallacy of Irrelevance ►Appeal to Inappropriate Authority ►Appeal to Pity ►Appeal to Personal Ridicule ►Appeal to Ignorance .

whose meanings shift and change within the course of the argument. ►Equivocation ►Amphiboly (ambiguous due to grammatical construction) ►Accent ►Composition ►Division .► Fallacies of Ambiguity (Linguistic Fallacies)  Arguments sometimes fail because their formulation contains ambiguous words or phrases. thus rendering it fallacious.

► Miscellaneous Informal Fallacies       Fallacy of Accident Hasty Generalization False Cause Non Sequitur Compound (Complex) Question Begging the Question .

An argument can be invalid and the conclusion true.Deductive Reasoning ►A valid argument requires that each premise and the conclusion are only either true or false. arguments are referred to as being valid or invalid. ► The sentences composing an argument are referred to as being either true or false. ► An argument is “sound” when the argument is valid and the premises are true. not as being valid or invalid. . ► An argument can be valid and the conclusion false. not ambiguous. not as being true or false.

form is what makes an argument valid.Syllogisms ► In a deductive argument. ► The “syllogism” is at the core of deductive reasoning (or at least syllogistic logic) ► In Prior Analytics Aristotle defined “syllogism” broadly as: "a discourse in which. . certain things having been supposed. something different from the things supposed results of necessity because these things are so. and by this." “I mean by the last phrase that they produce the consequence. that no further term is required from without to make the consequence necessary”.

Symbolic Logic ► E. then our problem is a practical one.” (G • S) > D (S > D) > P G G > (S > D) S>D P /*P . Therefore. our problem is a practical one. If strict enforcement of laws will make crime diminish.“If the laws are good and their enforcement is strict.g. The laws are good. then crime will diminish.

► A syllogism is a form of implication in which two propositions jointly imply a third. Disjunctive (S or P). A    syllogism consists of three parts: the major premise the minor premise the conclusion ► ► There are several forms of syllogism: Categorical (All S is P). . Hypothetical (If S then P).

Conclusion: Smith‟s appeal must be heard by a panel appointed under section 238(1) . Minor premise: Socrates is a human. Major premise: All appeals to WCAT must be heard by panels appointed under section 238(1). Minor premise: Smith‟s appeal is an appeal to WCAT. Conclusion: Socrates is mortal.► Examples (of categorical syllogisms): Major premise: All humans are mortal.

► The major premise is the broad premise that forms the starting point of deduction. . The major premise represents the “all”. It contains the “major term”. It contains the “minor term”. It normally represents the something or someone included in the all. ► The minor premise is the second proposition.

as we feel it is. is broad enough to encompass a woman‟s decision whether or not to terminate her pregnancy. Blackmun. in the Ninth Amendment‟s reservation of rights to the people. Wade). J. whether it be founded in the Fourteenth Amendment‟s concept of personal liberty and restrictions upon state action. as the District Court determined. This right to privacy. or. .► Example: (From Roe v.

 Minor Premise: A woman‟s decision to terminate her pregnancy is protected by a right of privacy. a woman‟s decision whether to terminate her pregnancy is protected by the Fourteenth (or Ninth Amendment) .  Conclusion: Therefore.► Implicit in this statement is the following syllogism:  Major Premise: The right of privacy is guaranteed by the Fourteenth (or Ninth) Amendment.

 Middle term: appears in the two premises. . A “term” is defined as a word or group of words contained in a premise or conclusion. but not in the conclusion (“All men”/”A man”) (“All appeals”/”An appeal”). It is less inclusive than the middle term.Propositions Contain Terms ► Premises and conclusions contain “terms”.  Major term: usually the predicate of the major premise and also the conclusion (“are mortal”)  Minor term: the subject of the minor premise and of the conclusion (“Socrates”) (“Smith‟s appeal”). Usually the subject of the major premise and the predicate of the minor premise.

Categorical Syllogisms ►A categorical syllogism is a deductive argument which consists of:  Three categorical propositions.  Each of the three terms must occur in exactly two of the propositions  Each of the premises must have one term in common with the conclusion.  Containing exactly three terms. .

► Standard Forms of Propositions ► Quality/Quantity of Propositions ► Distribution of Terms ► Rules of Categorical Syllogisms ► Related Fallacies .

Standard Forms of Proposition ► There are four standard forms of categorical proposition: 1. 2. All judges are honest (Universal Affirmative “A”) No judges are honest (Universal Negative “E”) Some judges are honest (Particular Affirmative “I”) Some judges are not honest (Particular Negative “O”) . 3. 4.

Quality/Quantity of Propositions ► Every categorical proposition is said to have both a quality (affirmative or negative) and a quantity (universal or particular) .

► A proposition “distributes” a term if it refers to all members of the class designated by the term. ► The predicate term (P) is undistributed.Distribution of Terms term is either distributed or undistributed.  In the Universal Negative (E) proposition (No S is P) ► both subject and predicate terms are distributed . ► A term is “undistributed” in (or by) a proposition if it refers to only some of the members of the class ► Every  In the Universal Affirmative (A) proposition (All S is P) ► the subject term (S) is distributed in that proposition.

e. whether it is affirmative or negative) determines whether its predicate term is distributed.► Distribution Rules of Thumb:  Quantity of a proposition (i. particular propositions never distribute subject terms  Quality of a proposition (i. . whether it is universal or particular) determines whether its subject term is distributed ►universal propositions always distribute subject terms.e. negative propositions do. ►affirmative propositions do not distribute their predicate terms.

Such an argument has been called a logical quadruped. . The fourth term is not only superfluous. and minor) it commits the formal Fallacy of Four Terms. each of which is used in the same sense throughout the argument. it destroys the comparison.  If there are four terms (“All men are mortal” and “Socrates plays baseball”) there is no way of reaching a conclusion. middle. ► If the syllogism contains more than three terms (a term in addition to the major. With two middle terms there is no basis for any comparison.Rules of the Categorical Syllogism ► Rule One: A valid categorical syllogism must contain exactly three terms.

 E.Rule One (continued) ► If a term is used in different senses in the argument the informal fallacy of equivocation results.g. The law of gravitation should be obeyed. The word law is used equivocally (human v.  Here we really have four terms. The law of gravitation is a good law. Every good law should be obeyed. physical law) .

. Minor Premise: The defendants are correctional officials Conclusion: Therefore. 861 F. the defendants are liable.2d 1421 (9th Cir.► Another Denton. Major Premise: Those correctional officials who are involved in or knowledgeable of inmate rapes are liable. 1998): Example of Equivocation (Hernandez v.

the middle term must be distributed in at least one premise. .Rule Two ► Rule Two: In a valid categorical syllogism.  Any syllogism that violates this rule is said to commit the formal Fallacy of the Undistributed Middle  The fallacy occurs whenever it is argued that because x and y belong to the same class or possess a common property they are identical.

as are cats.  All cats are mammals. ► It is critical that the middle term encompass a larger universe than the minor term ► Here the middle term is the class of mammals.► Example:  All dogs are mammals. ► Dogs are included in part of the class of mammals.  Therefore. but different parts of the class may be involved so that the middle term does not connect the major and minor terms. (mammals is not a distributed term) . all cats are dogs.

Major Premise: Those correctional officials who are involved in or knowledgeable of inmate rapes are liable. the defendants are liable. . Minor Premise: The defendants are correctional officials Conclusion: Therefore.

not the entire universe of correctional officials.► From Henderson:  “This syllogism also exhibits the fallacy of the undistributed middle. The term “correctional officials” is also undistributed in the minor premise because it refers only to the defendantcorrectional officials. The middle term.” . “those correctional officials who were involved of knowledgeable of inmate rapes” is undistributed in the major premise.

Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., [1979] A.C. 731,
[1979] 2 All E.R. 927, [1979] 3 W.L.R. 68 (H.L.) (Lord Diplock)

“In seeking to formulate general propositions of English law, however, one must be particularly careful to beware of the logical fallacy of the undistributed middle. It does not follow that because all passing-off actions can be shown to present these characteristics, all factual situations which present these characteristics give rise to a cause of action for passing off.”

Ontario English Catholic Teachers‟ Assn v. Ontario (Attorney General),

162 D.L.R. (4th) 257 (Ontario Court of Justice) (1998) (Cummings J.) at para.131: “To explicate further: a syllogism may be described as a form of reasoning in which from two propositions a third is deduced. Where the deduction is unwarranted or invalid, the syllogism is a false one. A simple example of a false syllogism is (1) apples are fruit (2) oranges are fruit (3) therefore oranges are apples. In this case, the first premise of the applicants is that the separate school system has constitutional recognition. The second premise is that the public school system has constitutional recognition … The deduction which follows, in the applicants' argument, from these two premises, is that because both school systems have a constitutional existence, they both have exactly the same constitutional rights. In my view, this is an invalid deduction, and therefore the syllogism is a false one.”

Rule Three
► Rule

Three: In a valid categorical syllogism, no term can be distributed in the conclusion which is not distributed in the premise.  The rule rests upon the fundamental principle that if the data refers to only some of a class, no conclusion referring to every member of the class can be deduced.  Depending on the term that is distributed in the conclusion but undistributed in the premise, we have the Fallacy of the Illicit Major or the Fallacy of the Illicit Minor.

Therefore. ► The major term “good tempered” is distributed in the conclusion. We cannot say that only judges are good tempered. .► Example of an Illicit Major: All judges are good tempered. No poets are judges. no poets are good tempered. yet that is what the major term in the conclusion reflects. but undistributed in the major premise.

This is a flying thing. e.” .► From R v.: “4 Here again quoting the stated case. Therefore this man is impaired. This is a clear example of the fallacy of the illicit major. reached by the expert and concurred in by the learned Magistrate. 193 (Ontario High Court of Justice) Stewart J. "the accused had in his blood stream an amount of alcohol that would normally impair his ability to drive a motor vehicle. may be put syllogistically thus:-Most men whose blood contains 1. Therefore this is an insect.: Most flying things are insects." This conclusion.R. This man's blood contains 1.6 parts of alcohol.6 parts of alcohol are impaired. Lord [1958] O. as becomes even more obvious almost a reductio ad absurdum if another example is taken.g.

such an argument. standing by itself. the fact that it is "not always true" is implicit in the words "most men". The old adage "It is the exception that proves the rule" is still valid if it is recognized that the verb "prove" is used in the original sense of "to test" (L. Since an accused may always be one of the exceptions to "most men".” . direct evidence. But it is logically inescapable that no accused should be convicted of a criminal offence (when proof of guilt beyond a reasonable doubt is required) upon the uncorroborated evidence of an expert whose opinion is based upon a premise which is not accepted as being of universal application. in the sense of adding weight to.Lord Quote Cont‟d “5 Taking the major premise of the first test for good). Such conclusions are often of great value in civil cases which deal with probabilities and frequently helpful in both civil and criminal cases as corroboration of. probare -. can never provide proof beyond a reasonable doubt.

we cannot conclude that James is or is not a steelworker.  E.Rule Four ► Rule Four: No categorical syllogism is valid which has two negative premises. .g. lawyers are not steelworkers. Two differences or disagreements lead to no conclusion. From James is not a lawyer.  Founded on the principle that inference can only proceed where there is agreement.

► . The correct method of proceeding is to find positive evidence of non-B. To prove a negative is sometimes an impossible task. But all that is affirmed or assumed is that the advocate found no evidence of non-B.” “When an advocate determines that „there is no evidence that B is the case‟ he or she is attempting to affirm or assume that non-B is the case.► “This type of reasoning is unacceptable because of the difficulty is sustaining a factual proposition merely by negative evidence. but is absolutely necessary if logical order is to be preserved. Not knowing that something exists is simply not knowing”. This may be difficult.

 To draw an affirmative conclusion is to commit the Fallacy of Drawing an Affirmative Conclusion from Negative Premises No poets are managers Some artists are poets Therefore. some artists are managers . the conclusion must be negative.Rule Five ► Rule Five: If either premise of a valid categorical syllogism is negative.

then B A Not B Therefore. ► . Modus Tollens If A.Hypothetical Syllogisms A hypothetical syllogism is a syllogism with one conditional premise and one categorical premise. ► 1. one must either affirm the antecedent or deny the consequent. B Therefore. then B If A. not A ► To be a valid argument. Modus Ponens 2. There are two forms.

then it attenuates the dignity of its victims. A Example: Bear v.Fallacies in Hypothetical Syllogisms ► ► ► The Fallacy of Affirming the Consequent If A. it is a prohibited form of discrimination. Therefore.” Form of Argument: If discrimination is prohibited. X attenuates personal dignity. therefore all attenuation of personal dignity is a prohibited form of discrimination. . then B B Therefore. Canada (Attorney General) 2003 FCA 40 “One must take care not to be drawn into a false syllogism that because all discrimination prohibited by the language of subsection 15(1) attenuates the dignity of its victims.

Therefore. the testator was insane. not B ► Example: If the testator was insane. . his will is invalid. His will was invalid.► The Fallacy of Denying the Antecedent If A. then B Not A Therefore.

v." To say that the second meaning follows from the first is a fallacy.” . No. Gladstone ([1985] B. for the Court) at para. then not C. it is a fallacy that would not be expected in a new constitutional document of unparalleled significance. but. (1).► From R. (2) that would require a denial of the power to exclude evidence under s-s. 3023) (BCCA.J. is: "If not A or not B. Lambert J. It is a fallacy not without precedent in legal reasoning. in my opinion.C. then C-11 The interpretation of s-s. 32:  “In logical or linguistic form.A. drafted by experienced parliamentary draftsmen. s-s. (2) says: "If A and B.

. 276) (1977) (De Bruler J. deprived of life ...This language may be represented in conditional form as follows: ... This argument commits the classical fallacy known as “denying the antecedent of a conditional statement”. then no Q”.. This fallacy is committed when a statement in the conditional form “if P then Q” is taken to imply “if not P. Without due process of law”. Indiana (266 Ind. The relevant language of the due process clause is “no person shall be .► French v.): “I likewise disagree with the majority‟s argument that the Fifth Amendment‟s due process clause recognizes the legitimacy of capital punishment at it is logically fallacious.

Columbia University is not in California.” .If a person is denied due process (if P) then that person shall not be deprived of life (then Q). Therefore. as may be seen in this example: If Columbia University is in California. This violates the rules of deduction. Columbia University is not in the United States. The majority seeks to infer from this statement that if a person is not denied due process (not P) then that he may be deprived of life (then not Q). then it is in the United States.

. If something is both a sufficient and necessary condition use “if and only if”.. ► .” are used loosely in legal language (and “.. or is both a sufficient and necessary condition. E..then...g. he may apply for citizenship”..► A special kind of ambiguity in logic and language results from the fact that the words “if.” as well).. if it is only a necessary condition use “only if”. and if it is a sufficient condition use “if…then”. “If an alien has been a resident of a country for five years. ► ► This sentence can mean either that residency is a sufficient condition for the application. is a necessary condition.or.

not B Therefore. ► Examples: Either A or B Either A or B A Not A Therefore.Disjunctive Syllogisms ► Disjunctive syllogisms are syllogisms in which one premise takes the form of a disjunctive proposition (disjunction) and the other premise and the conclusion are categorical propositions which either deny or affirm part of the disjunction. B .

The second assumes that they are.Moods of Disjunctive Syllogisms ► There are two forms or “moods” which these syllogisms take: (a) Mood Which by Denying Affirms. The first mood does not assume that the disjuncts are mutually exclusive. ► They . and (b) Mood Which by Affirming Denies differ as to the exclusivity of the disjuncts.

the disjunctive proposition is taken to affirm categorically that one. leaving open the possibility that both may be true. In this mood. and only one. It takes the form: Either A or B A Therefore. disjunct is true. not B ► . B ► The other mood (Mood Which by Affirming Denies) assumes that the disjunction asserts two mutually exclusive disjuncts. It takes the form: Either A or B Not A Therefore.The syllogism of the first mood (Mood Which by Denying Affirms) says only that at least one disjunct is true.

. ► Fallacy of Nonexclusivity  This fallacy only applies to the second mood and occurs whenever one assumes that affirming one disjunct shows the other to be false when it is in fact possible for both to be true. It is committed whenever a disjunctive proposition asserts the truth of at least one of a pair or set of disjuncts when in fact there are other possible or alternative disjuncts not enumerated.Fallacies of Disjunctive Syllogisms ► Fallacy of Missing Disjuncts  This fallacy can arise in either mood.

. that is.► The real problem in law consists in creating proper premises. ► It is only when we understand the systematic connections of things in the case law that we are able to express these connections in the form A is either B or C and thus assert that the presence of one excludes the other. in discovering the relations enumerated in the major premise.

the matter should be treated as if the worker is claiming both in the alternative. … Where a worker claims compensation in circumstances that could reasonably be alleged either as a recurrence of a previous injury or as a new claim.► Example (former RSCM I): “#107.10 Distinction Between Reopening and New Claim The distinction between a recurrence of injury which entitles the worker to reopen an existing claim and a new injury which entitles the worker to make a new claim is illustrated by the following example decision. .

Enthymemes ► In formal argument. the argument is called an enthymeme (also known as an “elliptical argument”) ► Many legal arguments and judicial opinions are enthymematic because either the premise or the conclusion is obvious and understood (or is believed to be understood). when one of the premises or the conclusion is not expressed. . ► Most often the missing premise is the major premise.

supply the missing parts. ►Normally. the assumption might be proper if justified. and test the syllogism for soundness. . Lisa is a good girl. we would just say that Lisa got a star on her forehead because she is a good girl. Alternatively. but it is not justified (inadequate reasons) Wisdom dictates that you always test an enthymeme for validity. Lisa gets a star on her forehead. Sometimes there is a tendency to make improper assumptions (by omitting critical propositions).► ► ► ► Example:  Good girls get a star on their forehead.

► Induction or inductive reasoning is the process of reasoning in which the premises of an argument are believed to support the conclusion but do not entail it. ► It is the foundation for the law of precedent (stare decisis). ► .Inductive Reasoning Inductive reasoning is reasoning by example. In the law. the circumstances or phenomena that constitute the particulars in inductive reasoning are the holdings in previous similar cases. ► Inductive reasoning is only as good as the quantity and quality of its premises.

.arriving at general or universal propositions (principles) from the particular facts of experience  Analogy: reasoning from the particular to the particular. To draw an analogy between two entities is to indicate one or more respects in which they are similar.  Inductive generalization: reasoning from the particular to the general .► Two forms of inductive reasoning are vitally important in the law.

► Therefore the success of any analogical argument lies in demonstrating the resemblances or similarities.► Analogy does not seek proof of an identity of one thing with another. Analogy does not depend upon the quantity of instances. but only a comparison of resemblances. but upon the quality of the resemblances between things. .

► Often the art of advocacy resolves itself into convincing the decision maker (or the parties) which facts in previous cases are positive (or negative/false) analogies ► Points of unlikeness are as important as likeness in the cases examined .

 The acceptability will be influenced by the relevance of the purported analogies.  The acceptability will depend on the number of positive resemblances and negative resemblances.► Several criteria may be used to appraise an analogical argument:  The acceptability of the analogy will vary proportionally with the number of circumstances that have been analyzed. . An argument based on a single relevant analogy connected with a single instance will be more cogent than one which points out a dozen irrelevant resemblances (quality not quantity matters).

the conclusion. did it emerge from inductive reasoning – induced generalization or analogy? 3. How do the resemblances in the material facts stack up? The differences? . Identify the categorical deductive syllogism used by the opinion writer – the major premise. 2.Aldisert‟s Suggested Approach ► ► ► 1. Where did the major premise come from? If not from a precedent or statute (or policy). Is it identical to or properly a part of the class represented by the middle term (usually the subject) of the major premise? Here often you will be resorting to analogy. the minor premise. the subject of the minor premise is usually the facts found by the fact-finder.

.g. because it may set forth a general rule but omit the central conditional clause “Except for circumstances A. “ .Fallacies of Induction ► Fallacy of Accident (dicto simpliciter)  Occurs when we apply a general rule to special circumstances and the application of the general rule is inappropriate because of the situations “accident” or exceptional facts.. B.  Meticulously check quotations in an argument. especially in the law. This fallacy would be committed if a judge applied the hearsay rule to a circumstance clearly falling under one of rule‟s exceptions. and C. E. the general rule is .  General rules have their exceptions.

 It creates a general rule from an exceptional circumstance.  Also known as “leaping to a conclusion”.► Fallacy of the Hasty Generalization  Converse of the fallacy of accident: fallacy of hasty generalization occurs by reaching an inductive generalization based on insufficient evidence. “fallacy of the lonely fact” . “hasty induction”.

Saunders (Informal Fallacies of Legal Argumentation): “Wariness of the fallacies of accident and hasty generalization should not handcuff the courts or prevent the evolution of the law. an understanding of the fallacies aids in the identification of situations in which a court could stumble into a fallacy and counsel‟s caution and insistence on a full exploration of relevant similarities and differences when a general rule is applied.” .► Professor Kevin M. Rather.

It denies the logical conclusion of an inductive argument (i.e. “it was just a coincidence”) .► Fallacy of Slothful Induction  Opposite of the fallacy of the hasty generalization.

Informal Fallacies ► Argument from Ignorance ► Appeal to Inappropriate Authority ► Appeal to Pity ► Begging the Question ► False Cause ► Fallacy of the Single Cause ► No Sequitur .

or when it is argued that a proposition is false because it has not been proven true. where evidence of a certain degree is essential to uphold a case.Argument from Ignorance (ad ignorantium) ► Occurs when it is argued that a proposition is true on the ground that it has not been proven false. the argument from ignorance may not be fallacious in the legal context. ► Because of special conditions imposed by the law. ► For example. emphasis upon the absence of such evidence – what might seem an appeal to ignorance – may be logically proper .

► (b) whether those individual are expert (competent). ► (c) whether those attempting the proof are motivated to prove the matter. ► (d) whether those attempting to prove the matter have the resources to conduct the inquiry.g.In some circumstances. new drugs being tested for safety). ► In such cases the following factors should be kept in mind: ► (a) how many individuals are attempting the proof. ► . may have substantial persuasive force (e. and ► (e) for how long a time have the individuals been trying. the fact that certain evidence or results have not been obtained. after they have been actively sought in ways calculated to reveal them.

. What may ordinarily seem a fallacious appeal to authority may prove proper and even compelling in law. ► Heavy reliance upon authority is a special feature of legal reasoning.Appeal to Inappropriate Authority (argumentum ad verecundiam) ► When the premises of an argument appeal to some party or parties having no legitimate claim to authority in the matter at hand.

that I cannot compete with you in terms of putting sentences together.(Argument Ad Misericordiam) Appeal to Pity ► The appeal to pity may be viewed as a special case of the appeal to emotion. in which the altruism and mercy of the audience are the special emotions appealed to.” . I am always grateful for the Canadian soldiers that liberated the Netherlands. Sometimes I feel sorry for myself that in my life I have so to say. They caught me and put me in jail. concentration camp and forced labouring. I came to work in Canada as an emigrant from the Netherlands and had to learn to speak the language and also writing. not much luck.. In 1942 the Gestapo ordered me to work in Germany and I had to make war materials in a machine shop and I refused to work for the enemy. . From a letter seeking reconsideration of a tribunal‟s decision: “I have to admit.

► Often as a result of the use of synonyms. ► This fallacy is often seen in the legal context.Begging the Question ► Assuming as true what is to be proven (also known as circular reasoning). A conclusion or some proposition that follows from the conclusion alone appears tacitly or explicitly among the supporting premises. which can disguise the circularity (such as defining a sleeping pill as “medicine that has a sophomoric effect”) . Really a fallacy of proof as opposed to logical form.

The truth is that we are all sinners. nobody‟s record is clean and indeed it is only fair to say that much of the very texture of the law invites us to sin .. bearing great names and distinguished titles. but the offenders pass in troops before our eyes. . I can think of no single fault that has done more to confuse the law and to disseminate litigation..► Learned Hand is quoted as reminding us: “Not to be misled into assuming the conclusion in the minor premise – not to beg the question. One would suppose that so transparent a logical vice would be easily detected.

therefore because of this”) . It has two specific forms:  (a) cum hoc ergo propter hoc (“with this. and  (b) post hoc.False Cause ► The fallacy of false cause is an argument that treats as the cause of a thing something that is not really its cause (non causa pro causa – “not the cause for the cause”). ergo propter hoc (“after this. therefore because of this”).

B comes because of A (propter hoc) . the first event must have caused the later one.Post Hoc Fallacy  The post hoc fallacy is the more prevalent form in the law  Occurs when an assumption is made that. because one event precedes another. B comes before A (post hoc) Therefore. (ergo) 2. 1.

last time I won I had not bathed.g.  “the sun rise when the rooster crows. so the rooster‟s crowing must make the sun rise”  “Most people hooked on heroin started with marijuana”  passenger on the Andrea Doria .Examples:  Superstitions – e. therefore I win when I have not bathed.

 Treats as a cause of a thing something that is not (or may not be) the cause of the thing.  Courts have held that a conclusion based upon such reasoning is not a reasonable inference but is mere speculation and conjecture. .  the post hoc fallacy is a particularly tempting method of reasoning because temporal sequence appears to be integral to causality.

e.  The idea that correlation and causation are connected is certainly true. correlation is needed for causation to be proven (i. it is a necessary but not sufficient condition)  Correlation does not imply causation – coincidences happen . rather than taking into account other factors that might rule out the connection. The fallacy lies not in concluding that the prior event was the cause of the later event but in coming to that conclusion based solely on the order of events.

White v. Stonestreet, 2006 BCSC 801 (Ehrcke, J.):
“The inference from a temporal sequence to a causal

connection, however, is not always reliable. In fact, this form of reasoning so often results in false conclusions that logicians have given it a Latin name. It is sometimes referred to as the fallacy of post hoc ergo propter hoc: "after this therefore because of this." In searching for causes, a temporal connection is sometimes the only thing to go on. But if a mere temporal connection is going to form the basis for a conclusion about the cause of an event, then it is important to examine that temporal connection carefully. Just how close are the events in time? Were there other events happening around the same time, or even closer in time, that would provide an alternate, and more accurate, explanation of the true cause?”

LeBlanc v. Canada, 2006 TCC 680 (Bowman C.J.T.C.):

41 It is suggested that the appellants must have had a system because they were so successful and that that system involved buying a significant number of tickets on long shot outcomes, which, it is argued, minimized their risk, because it ensured that if they did win, they won big. For the reasons that I set out below this strikes me as a

non sequitur.

42 I shall deal with the last point first. If I understand it correctly it is this: since you won it proves you must have had a system and therefore a business. If you had lost it would have proved you had no system and therefore no business and you could not have deducted your losses. This contention is about as classic an exposition as I have ever seen of the logical fallacy post hoc ergo propter hoc. It is true, they won, but to say they won because they had a system has no basis in the evidence at all. They won in spite of having no system. If one is looking for a pattern it is that they bet massively and recklessly and in those games where they could, they bet on long shots. Certainly it meant that if they won they won big, but the converse is that if they lost they lost big and given the astronomical odds against winning, their chances of losing were far greater than their chances of winning.

Kamberbeek v. Jones, 2001 BCSC 1810 (Wilson, J.)
15 Finally, Mr. Kamerbeek saw Dr. Fraser on 4 May 2001. Again, he complained of "an acute flare up of pain" in the low back after bending over. To attribute the complaints of 4 May 2001 to the event of 13 January 2000, is, in the absence of evidence, an unwarranted application of post hoc ergo propter hoc logic.

al. the possibility of another cause cannot be ruled out.► Rothwell et. no more. In the absence of a specific pathological condition or clinical syndrome that is associated only with the vaccine. 1847 (Osler. Raes. consistency and specificity of the association. J. such studies may give rise to a useful inference. While not providing clear proof of causation. In drawing an inference there are other factors besides temporal association to be considered. plausibility and coherence. [1988] O. … Thus temporal association could be coincidental. . as compared with its frequency of occurrence in a population to whom the vaccine has not been administered. Another approach to the question is through epidemiological studies showing the frequency of occurrence of neurological reaction associated with vaccination. v.) (emphasis added) It is easy to fall into the error of believing that because there is a temporal association between brain damage and vaccine administration. No. Temporal association gives rise to a hypothesis that should be tested. including strength.J. the one is the cause of the other (the logical fallacy reflected in the proposition post hoc ergo propter hoc).

► Causal oversimplification is a specific kind of false dilemma where conjoint possibilities are ignored. simple cause of an outcome when in reality it may have been caused by a number of only jointly sufficient causes. ► . also known as “joint effect” or “causal oversimplification”.) are not taken into consideration. the possible causes are assumed to be "A or B or C" when "A and B and C" or "A and B and not C" (etc. is a fallacy of causation that occurs when it is assumed that there is one.Fallacy of the Single Cause The fallacy of the single cause. ► Fallacy is avoided to some extent in the law (tort and workers‟ compensation) in its emphasis that a single cause (but/for) or material contribution beyond de minimis is sufficient for causation. In other words.

non sequitur lacks a logical connection. .Non Sequitur ► Non Sequitur (“it does not follow”)  An argument that contains a conclusion that does not necessarily follow from the premises or any antecedent statement offered in its support.  What makes it particularly troubling is that it is an argument that may contain statements that are all relevant but that are logically disconnected with the conclusion.  Post hoc fallacy lacks a causal connection.  Sometimes called the fallacy of the consequent because it always exhibits a lack of a logical connection between the premises and conclusion.

Williams (D.► United “The States v.C. and here is the white horse to prove it.. Cir. 1977): logical fallacy in this syllogistic presentation is that of a non sequitur because the conclusion does not really follow from the premises by which it is supposed to be supported… . The logic behind the statement of the majority opinion in this respect is the same as that of the robber who testified he could not have been at the bank when it was robbed because at that time he remembered he was four miles away riding a white horse.” . Defence lawyers occasionally make this illogical argument to juries but this is the first instance to my knowledge of its acceptance by an appellate court.

with such confidence that they should be puzzled to know if the speaker didn‟t see some point of great magnitude in it which entirely escaped their observation. but a great. non sequitur was sometimes twice as dangerous as well polished fallacy. A neatly varnished sophism would be readily penetrated. rough.► In a speech in Chicago in 1854 Abraham Lincoln said: “It was a great trick among some public speakers to hurl a naked absurdity at his audience.” .

Any questions?" ► Dilbert: "Did you intend the presentation to be incomprehensible.► Presenter: "That concludes my two hour presentation. or do you have some sort of rare „PowerPoint' disability?" ► Presenter: "Are there any questions about the content?" ► Dilbert: "There was content?” .

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