Documente Academic
Documente Profesional
Documente Cultură
System
Abdulrahman
Mangandog,
Graziella
Andaya,
Georgia
Angela
Dacuan,
Denise
Michaela
Yap,
Jose
Victor
Santos,
San>ago
Baluyot,
Don
Chris>an
San>ago,
Renzo
Francesco,
Cuisia
Carlos
Castañeda,
Kaisser
John
Acuaña.
Defini9on
• Common
law-‐is
that
body
of
law
derived
from
judicial
decisions
of
courts
and
similar
tribunals.
• Civil
law-‐is
a
legal
system,
in
which
that
its
core
principles
are
codified
into
a
referable
system
which
serves
as
the
primary
source
of
law.
• Mixed-‐Implements
a
liLle
bit
of
both
In the Beginning: “All Roads Lead to Rome”
• Lingua
Franca-‐
Language,
as
a
culture,
as
a
means
of
communica>on.
• The
concept
of
law,
in
general
is
a
microcosm
of
a
culture.
• The
template
of
which
was
La>n
Language.
Rome
• Created
the
Republic.
• Adopted
Greek
principles
of
Democracy.
• Established
the
Civil
Law
system
by
27
BC
• Had
a
caste
of
Jurists,
Who
develop
new
principles,
rules,
and
procedures
to
meet
the
challenges
of
their
par>cular
age
• This
judiciary
was
nonprofessional.
Medieval Developments in Italy
• 11-‐15
Century,
successor
of
the
Roman
system.
• System
of
law
to
fulfil
both
the
commercial
and
social
needs
of
the
populace.
• Glossators-‐
interpreted
textual
material
from
the
Corpus
Juris
Civilis
and
disseminated
those
interpreta>ons
to
other
scholars,
law
students,
and
lay
judges
Corpus Juris
Civilis
• Originally
from
Rome
• Adopted
by
Italy
• Then
adopted
later
by
Spain
• Template
for
the
Civil
law
Canon Law
• Originated
from
Italy
• Made
from
Corpus
Juris
Civilis,
and
customary
Law.
• Culmina>ng
to
Concordia
Discordan>um
Canonum.
• It
is
the
basis
for
almost
all
canon
law.
Law for Merchants
• Originated
from
Italy
• Made
from
Corpus
Juris
Civilis,
and
customary
Law.
• Necessitated
due
to
the
increased
trade
and
infrastructure.
• To
maintain
logis>cs
and
efficiency
of
the
trade,
the
law
was
propagated.
Mari9me Code
• Influenced
and
necessitated
by
the
Laws
for
Merchants.
• To
be
able
to
keep
the
gears
of
industry
well
oiled.
• Consolato
Del
Mare
(Consulate
of
the
Sea)
• Compiled
in
Spain
Trade Courts
• With
increase
trade,
there
was
increased
conflict.
• Courts
had
to
be
created
to
be
able
to
resolve
trade
maLers.
• separa>ng
commercial
law
and
procedure
from
other
parts
of
the
law.
Recap
Rome
Template
poli>cs
and
religion
the
decline
in
the
secular
influence
of
the
Roman
Catholic
Church
and
the
waning
of
the
power
and
authority
of
the
Holy
Roman
Empire
were
accompanied
by
the
birth
of
the
concept
of
the
na>on-‐state
and
an
emphasis
on
strong,
central
governments.
developments
culminated
in
the
crea>on
of
the
modern
European
system
of
states
by
the
signing
of
the
Treaty
of
Westphalia
in
1648,
which
ended
the
Thirty
Years
War
and,
with
it,
the
Holy
Roman
Empire
inspired
by
the
culture
of
an>quity—primarily
Greece,
and
to
a
lesser
extent
Rome.
Hugo de Groot “Gro9us”
father
of
public
interna>onal
law
1.
De
Jure
Belli
ac
Pacis
(On
the
Law
of
War
and
Peace)
-‐
universal
concepts
of
law
that
transcended
na>onal
boundaries
and
were
not
dependent
on
any
one
legal
system.
ADVOCATED
that;
a.)
law
being
based
on
human
experiences
and
desires.
b.)
ra>onal
approach
to
the
structure
of
law
and
the
resolu>on
of
disputes.
c.)
systema>c
arrangement
of
legal
materials
Samuel Pufendorf and Christopher Wolff
-‐jurispruden>al
writers
-‐
Who
aLempted
to
build
a
legal
system
using
the
scien>fic
methods
of
Galileo
and
Descartes
-‐Pufendorf,
who
introduced
the
inclusion
of
introductory
ar>cles
sta>ng
the
general
principles
of
law
that
provide
the
framework
for
the
subsequent
sec>ons
can
be
aLributed
to
his
work
and
influence.
“codifica>on
in
the
sense
of
a
ra>onally
organized
statement
of
the
whole
field
of
law
(or
of
all
private
law)
was
only
possible
aeer
the
work
of
the
natural
lawyers.”
During
the
18th
century,
ENLIGHTENMENT
had
paved
a
way
with
regard
to
the
intellectual
and
social
turmoil
that
happened
during
the
15th
–
17th
Century
-‐
based
on
a
belief
in
the
fundamental
importance
of
reason
-‐
provided
the
final
s>mula>on
for
the
crea>on
of
the
modern
comprehensive
codes
of
the
different
European
states
Jus9nian’s
star>ng
point
for
the
codifica>on
process
In
their
codifica>on
it
also
provided
a
ra>onal
statement
of
the
legal
principles
and
rules
on
almost
the
en>re
range
of
subjects
of
private
law
and
was
a
shared
tradi>on
in
almost
all
European
legal
systems
age
required
that
ci>zens
be
knowledgeable
on
maLers
of
law,
so
that
each
ci>zen
could
know
and
understand
his
or
her
rights
and
du>es
under
the
law.
The Codifica9on Processes in
France and Germany
The French code
• Napoleon
appointed
four
senior
prac>>oners
of
law
• four
years,
devoted
to
draeing
the
code
• Code
Civil
des
Français
-‐
1804,
with
3
books
and
has
2,281
ar>cles
following
is
the
basic
structure
of
the
Code
Civil:
1.Six
ar>cles
at
the
beginning
of
the
first
book
announce
general
principles
of
law,
including
the
publica>on,
effects,
and
applica>on
of
the
law.
2.
Subsequent
>tles
in
Book
I
(ar>cles
7–515)
deal
with
civil
rights
and
the
status
of
persons,
and
with
marriage,
divorce,
and
paternity.
3.
Book
II
(ar>cles
516–710)
covers
real
and
personal
property,
and
the
ownership
and
rights
rela>ng
to
such
property.
4.
Book
III
(ar>cles
711–2281)
contains
provisions
on
rights
of
succession,
contracts,
and
obliga>ons
(the
law
of
obliga>ons
covers
general
principles
of
obliga>ons,
as
well
as
specific
contracts,
quasi-‐contracts,
delict
(tort),
security
rights,
and
property
rights
in
marriage).
The German Code
• ended
up
with
a
code
that
was
largely
the
product
of
codifica>on
processes
in
three
Germanic
states:
Bavaria,
Prussia,
and
Austria
• s>ll
in
effect,
resulted
from
the
crea>on
of
a
commission
by
statute
in
1873
to
codify
German
civil
law.
Bürgerliches
Gesetzbuch,
or
BGB
containing
5
books
• Book
I—General
parts,
including
natural
and
juris>c
persons,
the
defini>on
of
things,
classifica>on
of
legal
acts,
and
prescrip>ve
periods.
• Book
II—The
law
of
obliga>ons,
including
crea>on
and
discharge
of
obliga>ons,
contracts,
and
the
law
of
delict.
• Book
III—The
law
of
real
and
personal
property,
including
the
ownership
and
possession
of
property
and
servitudes
on
property
and
securi>es.
• Book
IV—Family
law,
including
marriage
and
other
rela>onships
within
the
family.
• Book
V—The
law
of
succession,
including
hereditary
succession
and
the
rights
of
heirs,
wills,
seLlements,
and
requirements
of
proof
rela>ng
to
inheritance.
The Codes of Chile and Brazil
• Spanish
law
was
responsible
for
the
recep>on
of
Roman
law
in
Central
and
South
America
through
the
colonizing
ac>vi>es
of
the
conquistadors
and
those
who
followed
them
• Legal
developments
in
North
America
also
influenced
La>n
American
legal
systems,
with
regard
to
their
cons>tu>onal
theory
and
prac>ce
and
the
structure
of
government.
• the
content
of
civil,
commercial,
and
procedural
codes,
legal
educa>on,
the
structure
of
the
legal
profession,
the
influence
of
legal
scholars,
and
the
role
of
the
judge
in
the
judicial
process
in
almost
all
La>n
American
countries
conform
very
much
to
the
civil-‐law
tradi>on
that
evolved
in
central
and
western
Europe.
• Spanish
law
itself
became
a
jumble
of
codes,
legisla>on,
and
judicial
decisions.
• Nueva
Recopilación
• The
codifica>on
processes
in
Chile
and
Brazil
are
significant
because
of
the
great
influence
of
the
Chilean
code
on
those
of
many
of
other
La>n
American
countries
and
because
of
the
size
and
influence
of
Brazil
generally
in
La>n
American
affairs
and
the
uniqueness
of
its
situa>on
as
a
former
Portuguese
colony.
ANDRESS bello
• Who
started
the
civil
law
tradi>on
in
Chile.
Who
draeed
the
New
Civil
Code
for
his
adopted
country,
Chile.
• The
codifica>on
processes
in
Chile
and
Brazil
are
significant
because
of
the
great
influence
of
the
Chilean
code
on
those
of
many
of
other
La>n
American
countries
and
because
of
the
size
and
influence
of
Brazil
generally
in
La>n
American
affairs
and
the
uniqueness
of
its
situa>on
as
a
former
Portuguese
colony.
• The
NCC
was
adopted
by
by
Colombia
and
Ecuador,
and
was
used
as
a
model
for
the
civil
codes
of
Argen>na,
Paraguay,
Venezuela,
El
Salvador,
and
Nicaragua.
• The
Chilean
code,
which
has
undergone
major
revisions
since
its
mid-‐
nineteenth-‐century
adop>on,
primarily
by
later
legisla>on,
s>ll
remains
in
force.
Philip II (1603)
• The
ordinances
made
were
covered
by
many
aspects
of
private
and
criminal
law
based
on
Roman
law,
canon
law,
customary
law,
municipal
charters
and
statutes,
and
early
Portuguese
legisla>on.
§ Characterized
by
legalism
and
formalism.
And
it
resulted
with
legal
codes.
§ “greatest
monument
to
legal
thought
and
codifica>on
in
La>n
America.”
§ (1)
general
principles,
§ (2)
the
law
of
persons,
things,
and
rights,
and
§
(3)
the
law
of
family,
property,
obliga>ons,
and
succession.
It
has
been
amended
by
legisla>on
since
its
promulga>on,
primarily
in
the
area
of
domes>c
rela>ons,
but
it
is
s>ll
in
force.
The Development of the Role of
Jurists in Modern Systems
• civil
codes,
based
as
they
are
on
the
Corpus
Juris
Civilis
• reasoning
process
from
code
provisions
is
deduc>ve—one
arrives
at
conclusions
about
specific
situa>ons
from
general
principles
• jurists
apply
deduc>ve
reasoning
to
suggest
an
appropriate
judgment
or
result
in
specific
cases.
Historically
their
work
took
the
form
of
trea>ses
and
commentaries
that
became
the
“doctrine”
used
by
judges
in
their
delibera>ons
about
specific
cases,
lawyers
for
advice
to
their
clients,
and
legislators
in
the
prepara>on
of
statutes
and
regula>ons.
Pontes de Miranda
• rote
many
books
on
Brazilian
law
that
are
referred
to
in
Brazilian
judicial
opinions
and
used
in
the
draeing
of
Brazilian
legisla>on
• Trea2se
on
Private
Law,
consists
of
sixty-‐two
volumes
of
commentary
on
the
civil
code.
condi>on
of
the
sixteenth-‐
and
seventeenth-‐century
German
courts,
staffed
by
lay
judges
untrained
and
unsophis>cated
in
the
law
law
professors,
the
academic
jurists
in
Germany.
The
German
professors
were
wri>ng
the
decisions
according
to
their
own
developed
doctrine.
Evolu9on in france
• The
monarchy
encouraged
legally
trained
men
into
the
judiciary.
• French
legal
scholars
and
law
professors
were
never
able
to
achieve
the
standing
and
power
accorded
their
colleagues
in
Germany.
• The
leading
jurists
of
the
pre-‐Napoleanic
period
in
France,
Charles
Dumoulin
(1500–1566)
and
Robert
Pothier
(1699–1772),
were
not
law
professors.
Dumoulin
was
an
advocate
and
later
“consultant,”
and
Pothier
was
a
judge
for
over
fiey
years
of
his
long
professional
life.
Contrast of german and French jurist
• With
reference
to
appellate
cases
• Both
cases
involve
an
issue
of
tort
liability
of
individuals
involved
in
concerted
ac>vi>es.
• French
decision
is
cryp>c,
containing
only
about
500
words
and
ci>ng
only
two
sec>ons
of
the
code
and
no
doctrinal
trea>ses.
The
German
decision
is
longer—about
2,000
words—with
a
• more
lengthy
analysis
of
the
issues,
and
cites
not
only
relevant
code
provisions,
but
the
wri>ngs
of
at
least
three
German
jurists
• The
two
cases
are
also
instruc>ve
about
the
role
of
precedent
in
these
countries.
The
French
decision
contains
none,
and
the
German
decision
only
three.
Part II: TheFunc9ons in the
System As It Exists and
Func9ons in the Modern Era
The Private Law – Public Law Dichotomy
• The
fundamental
division
in
modern
civil-‐law
systems
is
that
between
private
and
public
law.
• As
exemplified
in
the
17th
and
18th
century
civil
codes,
Private
law
is
that
area
of
the
law
in
which
the
sole
func>on
of
the
government
was
recogni>on
and
enforcement
of
private
rights.
• Thus,
today
private
law
includes
at
least
the
civil
and
commercial
codes.
The Private Law – Public Law Dichotomy
• Public
law
focuses
on
the
effectua>on
of
the
public
interest
by
state
ac>on
• Today,
Public
law
includes
at
least
what
common
law
aLorney
would
recognize
as
cons>tu>onal
law,
administra>ve
law,
and
crminal
law.
The Private Law – Public Law Dichotomy
• Public
Law
generally
is
not
part
of
comprehensive
civil
codes.
• Public
Law
tends
to
be
more
fluid
than
the
civil
codes
since
it
change
rapidly
in
reponse
to
poli>cal
forces.
Court Structure
• Typical
Civil-‐Law
Judicial
System
would
be
represented
as
a
set
of
two
or
more
dis>nct
structures
with
no
bridge
in
between.
•
A
Common-‐Law
judicial
system
may
be
drawn
as
a
pyramid
with
the
“highest”
court
on
top.
• A
Civil-‐Law
judicial
system
would
be
represented
as
a
set
of
two
or
more
dis>nct
structures
with
no
bridge
between
them.
Court Structure
Ordinary
Courts
• Is
staffed
by
ordinary
judges
that
adjudicates
the
vast
majority
of
civil
and
criminal
cases.
• They
are
the
modern-‐day
successors
of
the
various
civil
courts
that
existed
in
Europe.
French
System
• The
apex
of
the
ordinary
court
is
First
Level
of
French
Court
consists
the
Cour
de
Cassa2on
(Supreme
of:
Court
of
Cassa>on).
• General
Civil
• The
court
reviews
on
a
discre>onary
basis,
only
ques>ons
• Criminal
trial
courts
of
statutory
interpreta>on.
• Specialized
Courts
• Cour
de
Cassa>on
is
composed
of
100
judges
who
sit
in
six
rota>ng
specialized
panels.
Court Structure
German
Model
• Relies
on
several
independent
court
systems,
each
with
its
own
supreme
court.
• There
are
separate
systems
of
labor
courts,
tax
courts,
and
social
security
courts.
• French
System
of
“Cassa>on”,
the
court
decides
only
the
ques>on
of
law
that
has
been
referred
to
it,
not
the
case
itself.
• The
Court
of
Cassa>on
may
either
affirm
the
lower
court
decision
or
remand
the
case
for
reconsiderafion
to
a
different
lower
court.
Legal Process
Appellate
Procedure
• The
remand
court
is
free
to
decide
the
case
the
same
way
as
the
previous
lower
court.
• If
that
occurs,
2nd
appeal
may
be
taken
to
the
Court
of
Cassa>on,
which
will
then
sit
in
plenary
session.
• The
court
may
then
issue
a
disposi>ve
ruling
in
some
case
to
a
third
lower
court
to
issue
the
judgment.
Legal Process
Appellate
Procedure
• In
the
German
System,
the
high
court
may
reverse,
remand,
and
modify
the
lower
court
decision
and
enter
the
judgment
itself.
Legal Actors: Tradi9on and Transi9on
Legal
Scholars
• According
to
legal
folklore,
the
legal
scholars
does
the
“basic
thinking”
for
the
legal
system.
• Judges
and
legislatures,
look
to
legal
scholars
for
definitve
views
on
the
law.
• Legal
scholarship
is
not
a
formal
source
of
law,
but
the
“doctrine”
as
developed
by
scholars
is
highly
valued
in
the
civil-‐law
tradi>on.
Legal Actors: Tradi9on and Transi9on
The
Legislature
• The
Legislature
in
the
civil-‐law
tradi>on
strives
to
suppliment
and
update
the
codes
in
those
areas
in
which
the
legal
scholars
have
suggested
that
codes
are
defec2ve
or
incomplete.
• New
Legisla>on
employes
the
concepts
and
follows
the
structures
established
by
the
legal
scholars
and
embodied
in
the
earlier
codes.
• Legislatures
seek
completeness
and
clarity,
aLemp>ng
to
produce
laws
that
are
consistent
with
the
tenets
of
the
legal
science
and
compa>ble
with
established
legal
order.
Legal Actors: Tradi9on and Transi9on
Judges
• Judges
typically
enter
judicial
service
at
the
lower
levels
of
the
judiciary.
Theyenterd
directly
from
law
school
aeer
passing
state
qualifying
examina>ons.
• Judge’s role is limited by strict no>ons of legisla>ve supremacy.
• Civil
Law
Judges
are
the
operators
of
the
system
designed
by
legal
scien>sts
and
built
by
the
legislators.
Legal Actors: Tradi9on and Transi9on
Legal
Educa1on
and
Lawyers
• Courses
tend
to
focus
on
general
legal
principles,
as
opposed
to
professional
skills
and
problem
solving.
• Tradi>on
of
legal
science,
civil-‐law
students
study
legal
trea>ses
that
expound
the
established
principles
of
the
law
with
liLle
case-‐method
analysis.
Legal Actors: Tradi9on and Transi9on
Legal
Educa1on
and
Lawyers
• Civil-‐Law
students
choose
among
the
several
branches
of
the
legal
profession.
• These
choices
include
a
career
as
a
governement
lawyer
or
in
private
legal
prac2ce.
Legal Actors: Tradi9on and Transi9on
Legal
Educa1on
and
Lawyers
• Private
legal
prac>ce
is
divided
between
the
advocate
and
the
notary.
• Private
Lawyers
are
generally
governed
by
Mandatory
Bar
Associa2ons.
Legal Actors: Tradi9on and Transi9on
Legal
Educa1on
and
Lawyers
• The
Advocate
meets
with
and
advices
clients,
and
represent
them
in
court.
• Advocates
prac>ces
law
in
small
firms
or
as
solo
prac>>oners.
Legal Actors: Tradi9on and Transi9on
Legal
Educa1on
and
Lawyers
Three
basic
func>on
of
a
Notary
Lawyer:
1. State the general rule of law or widely-known legal rule that
governs your case (Major Premise)
2. Describe the key facts of the legal problem at hand (Minor Premise)
3. Examining how the major premise about the law applies to the
minor premise about the facts (Conclusion)
BOGUS ARGUMENTS
1. the acceptability of the analogy will vary proportionally with the
number of circumstances that have been analyzed
2. the acceptability will depend upon the number of positive
resemblances (similarities) and negative resemblances
(dissimilarities)
3. the acceptability will be influenced by the relevance of the
purported analogies.
IMPORTANCE OF ANALOGY IN LAW
SCHOOLS
REQUIREMENTS:
ü S I M I L A R C A S E S S H O U L D B E
D E C I D E D S I M I L A R LY
ü D E C I D E D O N I T S M E R I T S
ü C O M P LY W I T H A P P L I C A B L E R U L E S
OF PROCEDURE AND EVIDENCE
ACHIEVING OBJECTIVE RATIONALE
TRANSPARENT decision-making + OPEN to
SCRUTINY = OBJECTIVE RATIONALE
LEGAL REASONING
I T I S A R E A S O N I N G I N V O LV E D I N :
Ø D E M A N D S O F T H E R U L E O F L AW +
T H E P R A G M AT I C N AT U R E O F L E G A L
REASONING = DISTINCTIVE
PAT T E R N S O F R E A S O N I N G
1. Rule-based
}
found in
reasoning
law, exhibit
distinctive
logical
2. Evidence evaluation features
found in law, exhibit THREE TYPES
distinctive logical
features
OF LEGAL
can modify REASONING
both rule-
based
3. Second-order reasoning and
process reasoning evidence
evaluation.
STRUCTURE OF THE LEGAL
COMMUNITY
Ø A vital factor for it promotes the evolution of reasoning
patterns that are well-adapted to the task of solving legal
problems.
Ø Empirical research is needed to discover the actual
patterns that have evolved
T H E P R A G M AT I C
N AT U R E O F
LEGAL REASONING
ISSUE
Legal profession has not found traditional formal logic very useful
CAUSE
that logic tracks the deductive reasoning of mathematics, and not the practical
reasoning we actually employ in law.
3 SENSES IN
1. Reasoning is action-oriented WHICH WE
2. It balances the “epistemic EMPLOY
objective” of law against the PRAGMATIC
applicable “non-epistemic REASONING
objectives TECHNIQUES
3. Legal decision-making occurs in
real time, uses limited resources, These three pragmatic
and is usually based on dimensions of legal
incomplete information reasoning dictate
certain features of its
logic.
Examples:
Ø We use it to make legal arguments about
the legitimacy of governmental action or
inaction.
Ø When judges decide cases or administrative
agencies adopt new regulations, they must
interpret constitutional, statutory, or 1. REASONING
regulatory texts, and balance legal principles
against substantive policies IS ACTION-
ORIENTED.
Legal reasoning is therefore pragmatic in
the sense that its ultimate subject matter
is governmental action, and is almost
always about justifying decisions leading
to such action.
Epistemic objective - produce determinations of fact 2. IT BALANCES
that are as accurate as possible and which are
warranted by the legally available evidence THE “EPISTEMIC
Example: The epistemic side of law aims at truth, OBJECTIVE” OF
but a truth constrained by reasonable inferences
from the evidence.
L AW AG A I N S T
THE
Non-epistemic objectives APPLICABLE
Examples: common across governmental “NON-
institutions and proceedings (for example,
procedural fairness or administrative efficiency),
EPISTEMIC
while others are limited to particular institutions OBJECTIVES.
and proceedings (for example, achieving an adequate
supply of electric power, or increasing economic
efficiency within securities markets). Legal reasoning is pragmatic
because it must incorporate
Weighed against this epistemic objective such balancing and must reason
are numerous non-epistemic objectives. about appropriate balancing.
The decision-maker has to evaluate, at
3. LEGAL
each stage of the process, whether the
DECISION-
evidence is complete enough, whether MAKING OCCURS
the residual uncertainty is acceptable, IN REAL TIME,
and whether action should be taken USES LIMITED
or postponed RESOURCES, AND
Example: A prosecutor could always I S U S UA L LY
BASED ON
conduct more investigation and a
INCOMPLETE
regulator could always obtain more I N F O R M AT I O N
scientific studies.
THEORIES ABOUT THE
LOGIC OF LEGAL
REASONING MUST BE
USEFUL IN ORDER TO
B E N O R M AT I V E
RULE-BASED
REASONING
RULE-BASED LEGAL REASONING
• A particular type of reasoning which uses "if-then-else" rule statements.
• In this type of conditional schema, a legal rule states that if proposition p (the condition) is
true then this fact warrants that proposition q (the conclusion) is also true.
• A major feature of rule-based legal reasoning is the distinction between prima facie case and
affirmative defense.
• EXAMPLE: Self-defense. In a self-defense case, there are requisites that must be met in order
for such act to be considered as self-defense.
• Another feature of rule-based legal reasoning that challenge traditional deductive logic is the
possibility of changing the rules themselves as a result of reasoning.
• EXAMPLE: Common law systems. Their courts have inherent authority to elaborate new legal
rules that apply tot he very case being decided, as well as to future cases.
EVIDENCE
EVALUATION
EVIDENCE EVALUATION
• Legal rules identify those issues of fact that are relevant to proving the ultimate issue of fact.
• In any particular case, various participants (such as private parties, prosecutors, or
administrative staffs) produce evidence for the legal record, and use that evidence to try to
prove or disprove those issues of fact.
• Role of the factfinder is evidence evaluation: deciding which evidence is relevant to which issue
of fact, evaluating the probative value of the relevant evidence, and making findings of fact
based on evidence.
• Hence, evidence evaluation studies the methods and principles for the inferential aspects of
the factfinder’s task. It explains the reasoning that a reasonable factfinder would use to
determine the probative value of evidence.
• Basic building block of evidence evaluation is the PROPOSITION.
• Propositions which constitutes the evidence.
• EXAMPLE: Statements made my testifying
witnesses or statements contained in
documents that are admitted into evidence E V I D E N T I A RY
• Although evidentiary assertions are A S S E RT I O N S
propositions, and therefore capable of being OR
either true or false, factfinders are permitted A S S E RT I O N S
to assign them degrees of plausibility
(plausibility-values) instead of truth-values.
CHALLENGES THAT EVIDENCE EVALUATION
POSES IN FORMULATING USEFUL
NORMATIVE LOGIC
• 1. EXPLAINING HOW WE REASON ABOUT “RELEVANCE” ITSELF- how we decide to link
particular evidentiary assertions to particular fact.
• II. STUDYING THE LOGICAL PROPOERTIES OF DIFFERENT PLAUSIBILITY SCALES.
• III. COMBINING PLAUSIBILITY-VALUES OF NUMEROUS EVIDENTIARY ASSERTIONS INTO
A SINGLE PALUSIBILITY-VALUE FOR A PARTICULAR CONCLUSION.
• These are complicated problems in law because factfinders must be able to integrate both
non-expert and expert evidence into a single pattern of reasoning.
• In logic, a ”schema: is a formal linguistic pattern containing variables, so that appropriate
substitutions for the variables create instances of the pattern.
• PLAUSIBILITY SCHEMA- a pattern of default reasoning that, when instantiated, warrants the
conclusion to be plausible.
• EXAMPLE: the schemas of deductive logic (such as modus ponens), which necessarily preserve
truth from premises to conclusion, also preserve plausibility from premises to conlusion.
SECOND-ORDER
PROCESS
REASONING
SECOND-ORDER PROCESS
REASONING
• Legal decision making is a process governed by the rule of law and a third area of legal reasoning
that grants conclusions on the structure of that process. Process rules allow the decision making
process to be dynamic, participatory and interactive. Different participants can play different roles,
with divisions of labor and responsibility, ideally within a single, fair and efficient process.
2 types of processing decisions and rules governing decisions
• Procedural rule - addresses issues as general as jurisdiction, or as specific as the appropriateness of
particular filing. Procedural decisions based on those rules orchestrate the dynamics and timing of
the decision making process.
• Evidentiary rule – addresses issues about the evaluation of evidence, such as the admissibility of
evidence, the legal sufficiency of evidence, and burdens of proof. Evidentiary decisions based on the
those rules manage various tasks involved in evidence evaluation, and allocate them to various
participants in the process.
FEATURES OF REASONING AND DECISION-
MAKING PROCESS
• “Second-order” reasoning - the proposition of stating substantive legal rules or about
evidentiary assertions in a particular case.
• Policy-based reasoning – the integration of the content on policies and principles, would
formulate methods for weighing many divergent lines of reasoning in warranting decisions
about particular rules.
• Analogical reasoning – the practice that addresses concerns for deciding similar cases similarly
overtime for maintaining predictability of outcome and for providing due notice potentially
affected parties. It should capture the kinds of reasons that courts routinely give for
considering two cases to be similar and for distinguishing one case from another.
CONCLUSION
• The goal of this is to be suggestive but open-ended about discovering the logic of legal
reasoning. Legal reasoning patterns evolve is intended to spur a desire for empirical research.
We in the legal profession have little incentive to engage in such research if we do not sense a
need for it and if we do not sense that reasoning we apply to legal problems that has a
distinctive and coherent structure, we are unlikely to study that structure. What we need is a
professional awakening to the possibility of discovering a useful logic of legal reasoning.
LOGIC AND LEGAL
REASONING: !
A GUIDE FOR LAW STUDENTS
CONCLUSION
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.
In
a
typical
legal
syllogism,
the
middle
term
will
consist
of
either
the
elements
of
a
cause
of
ac>on
or
the
defini2on
of
some
term
of
art.
Example: “Murder is the intentional killing of a human being. State v. Jones, 12 N.C. 345, 34 S.E.2d 56
(1929). Here, 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.
This
fallacy
occurs
when
the
premises
“miss
the
point”
and
fail
to
substan>ate
the
conclusion,
instead
suppor>ng
some
other,
perhaps
unstated,
conclusion.
Oeen,
this
fallacy
arises
when
we
advocate
for
a
par>cular
objec>ve,
but
offer
only
generalized
support
for
that
objec>ve
that
could
equally
well
support
an
alterna>ve
approach.
An
irrelevant
conclusion
may
also
be
called
a
non
sequitur.
Example: “The defendant fled the state just hours after the
crime was committed. Therefore, he was clearly involved in
one way or another with its planning or execution.”
5.
Overzealous
applica1on
of
a
general
rule.
This
fallacy
occurs
when
we
apply
a
generaliza>on
to
an
individual
case
that
it
does
not
necessarily
govern.
The
mistake
oeen
lies
in
failing
to
recognize
that
there
may
be
excep>ons
to
a
general
rule.
Example:
“Sixty
men
can
do
a
job
sixty
>mes
as
quickly
as
one
man.
One
man
can
dig
a
post-‐
hole
in
sixty
seconds.
Therefore,
sixty
men
can
dig
a
post-‐hole
in
one
second.”
6.
Hasty
Generaliza1on
This
fallacy
is
the
converse
of
the
preceding
one.
It
occurs
when
we
move
too
quickly
to
establish
a
broad
principle
or
general
rule
based
on
specific
factual
observa>ons.
Example:
“In
the
present
case,
the
dog
that
aLacked
the
small
child
clearly
had
a
‘vicious
propensity.’
Two
years
earlier,
that
same
dog
had
biLen
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
ques2on.
Ques>on-‐begging
arguments
oeen
mask
themselves
in
clever
rhetoric.
They
can
be
easy
to
miss
because
they
oeen
sound
good.
Read
these
examples
closely,
and
see
if
you
can
iden>fy
why
each
is
fallacious
before
you
read
the
explana>on
immediately
following.
9.
Ambiguity.
When
we
use
a
key
word
or
phrase
to
have
two
or
more
different
meanings
in
the
same
argument,
we
commit
the
fallacy
of
ambiguity.
Because
many
words
and
phrases
are
naturally
ambiguous
(have
two
or
more
meanings,
or
even
a
range
of
meanings),
this
fallacy
oeen
escapes
no>ce.
10.
Composi1on
We
commit
the
fallacy
of
composi>on
when
we
mistakenly
impute
the
aLributes
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
collec>on
of
weak
strands.
Therefore,
a
rope
cannot
possibly
support
the
weight
of
a
full-‐grown
person.”
11.
Division.
This
fallacy
is
the
reverse
of
the
fallacy
of
com
when
we
mistakenly
argue
tha posi>on.
We
commit
the
falla
t
aLributes
of
a
whole
must
cy
of
division
that
whole.
also
be
present
in
each
part
or
cons>tuent
of
Example:
“A
rope
is
strong,
a
nd
can
easily
support
the
wei
a
collec>on
of
individual
stran ght
of
a
full-‐grown
person.
A
ds.
Therefore,
a
strand
of
rop
rope
is
nothing
but
a
full-‐grown
person.”
e
i s
s trong,
and
can
easily
support
the
weight
of
12.
Argument
from
Ignorance.
An
argument
is
fallacious
when
it
maintains
that
a
proposi>on
is
true
because
it
has
not
been
proved
false
or
false
because
it
has
not
been
proved
true.
Example:
On
the
Senate
floor
in
1950,
Joseph
McCarthy
said
of
a
State
Department
employee
suspected
to
be
a
Communist,
“there
is
nothing
in
the
files
to
disprove
his
Communist
connec>ons.”
13.
Aback
Against
the
Person.
This
fallacy
occurs
when
the
thrust
of
an
argument
is
directed,
not
at
a
conclusion,
but
at
the
person
who
asserts
or
defends
it.
This
is
some>mes
referred
to
as
an
ad
hominem
argument.
Example:
A
lawyer
tells
a
jury
that
evidence
of
a
witness’s
criminal
past
proves
that
the
witness
was
lying.
14.
Argument
from
Force.
An
argument
is
fallacious
when
it
subs>tutes
veiled
threats
for
logical
persuasion
or
when
it
asserts
that
something
must
be
the
case
because
“that’s
just
the
way
things
are.”
Example:
White
House
Chief
of
Staff
Howard
Baker
once
opened
a
cabinet
mee>ng
over
allega>ons
of
misconduct
on
the
part
of
ALorney
General
Ed
Meese
as
follows:
“The
President
con>nues
to
have
confidence
in
the
ALorney
General
and
I
have
confidence
in
the
ALorney
General
and
you
ought
to
have
confidence
in
the
ALorney
General,
because
we
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
status.”14
15.
Appeal
to
Emo1on.
This
fallacy
occurs
when
expressive
language
designed
to
excite
an
emo>on
like
outrage
or
pity
is
used
in
place
of
logical
argumenta>on.
Example:
“It
is
>me
to
put
an
end
to
these
‘crea>ve’
accoun>ng
prac>ces.
Millions
have
lost
their
pensions
due
to
the
excesses
of
these
corporate
elites.
Hopes
have
been
dashed.
Lives
have
been
ruined.
This
cannot
be
allowed
to
con>nue.
For
all
these
reasons,
I
urge
you
to
find
the
defendant
guilty
as
charged.”