FALLACIES LEG TECH Part II – development of fallacies and means of classifying judicial

Fr: Logical Fallacies and the Supreme Court (1988) by Andrew Jay Mc decision making.
Clurg Part III – Analysis of Fallacies
***Disclaimer the original article uses actual and real cases in America, for further Part IV – Why Fallacies occur and suggestions for avoiding them
illustration read the cases and how the fallacies are applied in those cases. Part V – Conclusion

Introduction
o Fallacies: a cause or condition of defective reasoning. It is a type of
Part I: Logic and Legal Argumentation.
incorrect argument.
(mostly about philosophy of law and judicial decisions)
o Fallacious Argument: one that appears to be correct and may even
be extremely persuasive, but which proves upon closer examination
The term “logic” and “illogic” are part of the standard lexicon of the SC
to be logically invalid.
opinion writing.
Importance of why SC explains its decisions:
Legal Realism (by Holmes):
1. Institutional level: the court has the ultimate authority to
o A method of critical analysis from the early part of this century.
decide the most fundamental issues affecting the
It arose as a reaction to the notion that judges decide cases
government’s powers to interfere, alter and sometimes end
merely by applying existing rules of law to known facts. For
the lives of citizens.
realist judges do not merely apply the law, they make the law.
2. Intellectual level: court opinions serve as the most
o It is not the rule of law which is important but rather external
conspicuous paradigms of the best feature of the judicial
factors such as: the judge’s values, prejudices or whether he
system, in short it matters how the judges decide cases.
went to bed too late the night before. That judges decide by
“hunch” and not by applying the law. Because of this, realists
Judicial Reasoning: a legal argument at its most refined; without the
say that it is futile to analyze judicial decisions logically.
ability to detect fallacies our arguments are imperfect. When fallacies
o Why legal realism is flawed: (a) it tests the utility of logic as
occur, we allow persuasion over proof to prevail.
applied to the entire universe of judging (b) it limited
consideration of logic to the formal logic of Aristotelian
Study of Fallacies: logic – begets a habit of clear and sound reasoning.
syllogism.
(R. Whately, elements of logic ,1975). The study of fallacies allows us to
avoid self-deception as well as deception by others.
John Dewey’s Philosophy:
o A logic of “search and inquiry”: existed for resolving concrete
To commit a fallacy: commit a mistake or misuse of a logical principle
cases. Such process goes beyond “hunches” which are arbitrary.
w/c can be deliberate of unconscious.
o Premises are formed tentatively and correlatively, such premise
is being tested every step of the way. Once the premises are
Contents:
considered acceptable then the conclusion is given, the
Part I – relationship of logic to legal argumentation
development having occurred in tandem.
 o Dewey: The judges not only reach decisions. They must also
justify them (logic of exposition)
o The logic of exposition – judges have an obligation to furnish “a
rational statement” which formulates the grounds and exposes
connecting or logical links.
o The only realistic goal of the SC is to make its holding appear as
reasonable as possible and secure a degree of acceptance.
Justices are not limited to just the formal logic of their reasoning
because they are required to attain a degree of acceptance
therefore, they must also persuade.
o To be Persuasive, they must prove why one resolution is better
than other alternatives.
o Logic of the SC “logic of practical argumentation”: it is straight
thinking, of how to get from A to Z.
Part II: Study of Fallacies
(history of fallacies)
Fallacies provide us with concrete basis for evaluating the sufficiency of
judicial reasoning and argumentation. Analysis of SC decisions can be
evaluated and tell us how decisions were reached.
A. Development of Fallacies
Three stages (Origin, Expansion and Modern View)
I. Origin:
 Started by Aristotle with 13 classes. He saw them as tools by
sophists to win arguments. 6 / 13 were fallacies of spoken
language which have little utility in the real would. 7 /13 were
outside the language fallacies. Before the 11th Century,
Aristotelian logic was being used.
II. Expansion of Fallacies:
 Started in early 17th century with “psychological fallacies” which
are about human prejudices, biases, emotions and other
weaknesses of the mind. From Francis Bacon’s “Idols”.
III. Modern View
 Lead by Antoine Arnauld “The Art of Thinking 1662”. He
emphasizes that false judgement involves a reasoning, although
the reasoning may be only implicit.
 2 sources of false judgement:
(a.) external false appearances which initiates the error;
(b.) internal self-deception which is based upon self-love,
passion and interest.
 Popular fallacies by Arnauld: Ad hominem (attack the person),
Ad populum (bandwagon) and Ad verecundiam (appeal to
authority)
B. Requisites of Argument
o A false statement standing alone is not a fallacy (ex: it only rains
on Tuesdays), but if I say “for the last 2 weeks it only rained on
Tuesdays therefore it only rains on Tuesdays, it is a fallacy of
hasty generalization
o An Argument is any group of propositions in which one is
claimed to follow from the others.
o In judicial decisions: the law (major premise) , the facts (minor
premise), ratio decidendi/ ruling (conclusion) ** formal logic
way.
C. Classifying Fallacies
o There is no accepted form of classifying fallacies because many
people classify them their own way (kanya kanya sila ng
pinaniniwalaan kung pano ba dapat sila I group kaya walang
widely accepted classification).
o Aristotle’s: a. in the language and b. out the language
o Reason why there is no universal classification
1st people do not think in a fixed way.
2nd complicated to classify in one way because of limited
possible ways in which a determination to persuade may
combine with language.
3rd Nature of fallacies depend on the subject matter.
Classification by this Article:
I. FORMAL FALLACIES
II. FALLACIES FROMF ALSE, OMITTED, OR INSUFFICIENT PREMISES
III. FALLACIES OF PROOF AND AUTHORITY
IV. FALLACIES OF DEFINITION AND QUALIFICATION
V. FALLACIES OF IRRELEVANCE AND DIVERSION
Part III: Analysis of Fallacies
(Kinds and definition of Fallacies)
How to analyze:
1. Recognize that a defect is present
2. Identify the particular form of Fallacy
I. Formal Fallacies: they are defective because of improper form,
without regard to content. Must go by the Aristotelian Syllogism.
(major premise, minor premise, and conclusion)
Validity (form) > Truth : important in these types of fallacies.
6 rules in determining the validity
a. Must have 3 terms only
b. Must have 3 propositions only
c. Middle term must be distributed at least once
d. No term can be distributed to the conclusion which was not
distributed in one of the premises
e. No positive conclusion can be inferred from a negative premise
f. If 1 premise is nega then the conclu must be nega
*** it is only a testing device to determine the validity of decisions
and legal arguments after doing so look at content to see if there are
informal fallacies***
---Common types---
1 Undistributed term: murder is a felony
Burglary is a felony Therefore, murder is a felony
2 Positive conlusion from a negative premise:
All q are r
P is not q
Therefore p is r
3 Inconsistent Premises:
The premises contradict each other and come to an unsound
conclusion.
4 Affirming the Consequent:
- “if, then” arguments
- Valid: If p, then q; p, therefore q
- If it is night, it is dark outside; It is night; Therefore it is dark
outside (valid)
- Becomes a fallacy when one seeks to affirm the consequent: If
it is night, it is dark outside; It is dark; Therefore it is night
outside (not valid because it does not take account for other
reasons of darkness such as an eclipse or heavy storms)
- Legal example: Evidence of illegal activity was found; Therefore,
there was a probable cause.
II. Fallacies from False, omitted, or insufficient premises:
Analogy: The final product is no better than the raw materials.
A conclusion is only as strong as the premises from which it is
constructed.
If the premises are false or inadequate, the conclusion is suspect.
1 False premises:
o Law operates inductively rather than deductively (crim pro in
America) therefore u evaluate premises on “probably true” or
“probably not true” to challenge a false premise u prove
“probably not true.
o An argument from false premises is a line of reasoning which
can lead to wrong results. A false premise is an
untrue proposition that forms part of the basis of
a logical syllogism. Since the premise (assumption) is not
correct, the conclusion drawn may also be wrong. However,
 whether or not an argument is "valid" depends on whether it is
consistent, not whether its premises are true.
2 Unaccepted Enthymemes
o The most dangerous form of false premise is one that is not
stated
o Enthymemes: It omits one of the premises necessary to
sustain it is known
o Omission of a gen known fact is NOT A FALLACY (there are
dark clouds coming so it will probably rain this afternoon;
missing premise that dark clouds signify rain is not needed
bc it is a generally known fact)
o Omission of a fact NOT GENERALLY known is a FALLACY
3 Begging the Question (petition Principii)
o If writers assume as evidence for their argument the very
conclusion they are attempting to prove, they engage in the
fallacy of begging the question.
o Assuming as a premise for an argument the very conclusion
that is sought to be proved
o Ex: Student 1: "Useless courses like English 101 should be
dropped from the college's curriculum." Student 2: “Yes,
spending money on a useless course is something nobody
wants” We all agree that spending money on useless
courses is a bad thing. However, those students never did
prove that English 101 was itself a useless course--they
merely "begged the question" and moved on to the next
"safe" part of the argument, skipping over the part that's
the real controversy.
III. Fallacies of proof and authority – all the fallacies under this
kind relate to the objective premises – proof (facts) and authority
(precedent) upon which results are predicated
1. One sided Assessment:
Relevant evidence or counterargument is suppressed or ignored and
the audience is deceived.
*** but because justice systems usually has 2 parties with 2
antagonizing theories this is often suppressed because we have 2
views of the same story and they balance out each other.
In the case of the Supreme court: they must present not only 1 side,
but both in coming up with a decision because obliged to balance
out both sides.
2. Faulty Analogies
o Most of legal arguments is reasoning by analogy, which is a
form of inductive reasoning
o Reasoning by Analogy consists of assuming that certain
things are probably true because we know certain other
things to be true.
o As lawyers:
Since Rule P was applied in Case 1 where Facts a,b,c,& d are
present therefore Rule P should be applied to Case 2 where
Facts a,b,c, & e are present.
Reasoning by example (Edward Levi) – legal reasoning by analogy
3 steps:
i. Judge searches for cases that are similar to the one under
consideration
ii. Judge extracts the rule of law from the previously decided
cases.
iii. Judge applies the rule of law to that case he is judging.
Criteria for judging the validity of analogy:
(1) Number of respects which the prior cases are said to be
analogous
(2) Number of prior cases that share those salient features
(3) Dissimilarities between the prior cases and the case for
consideration
(4) The relevance of the similarities and the dissimilarities. (very
important)
3. Fallacies of Missing Proof (Ad Ignorantiam)
Ex: “Ghosts do not exist because no one has ever proved they do
exist” or “ Ghosts must exist because no one has ever proved they
do not exist” – an argument from ignorance
o Fallacy of Negative proof (Fischer)
o There is no evidence of X; therefore not-X
o Fallacy of Possible Proof
o Attempting to establish a factual proposition as true/
false merely by showing the possibility of its truth or
falsity (factual propositions require more support than
they are possibly true or false)
4. Fallacious Appeals to Authority: Ad Verecundiam, Ad
Antiquitam, and Ipse Dixit.
o Ad Verecundiam – (argument from inappropriate authority): an
appeal to the testimony of an authority outside the authority's
special field of expertise.
o Ad Antiquitam - illegitimate appeal to principles or actions of
the past in order to justify current acts “Wisdom of our
ancestors.” Usually “ the fact that this existed for hundred of
years… or we have accepted this rule as it was accepted by the
father of that father of our fathers…” It is a fallacy because it
only invokes that the rules have been there for a long period of
time without proving its relevance or significance.
o Ipse Dixit – “he himself said it”. An assertion with no proof. An
unproven statement. Pinipilit niya lang na tama kasi sabi niya
tama daw siya.
IV. Fallacies of Definition and Qualification – are committed
when the court imposes an unreasonable high degree of precision
upon matters incapable of being precisely defined, classified, or
qualified.
1. The Black or White Fallacy – (False dilemma) implies that you
only have 2 choices; nothing more nothing less. “Either DDS ka
or Dilawan ka.”
2. Unreasonable or Unnecessary Demands for Perfection or
Precision. – from a proposal when absolute perfection or
precision is either not possible or unnecessary. Case example:
Di nila ma classify yung ginawa ng accused kung civil ba or crim
case. Yung ginawa crim in nature pero yung punishment civ
lang so nalito sila AF. Bottom line may mga bagay na di mo
mapeperfectly classify into such classifications.
3. Logic Chopping – you reject a relatively workable and precise
rule by drawing attention to marginal cases in which the rule
was or could be applied improperly.
o Also known as: quibbling, nit-picking, smokescreen,
splitting-hairs, trivial objections) Description: Using
the technical tools of logic in an unhelpful and
pedantic manner by focusing on trivial details instead
of directly addressing the main issue in dispute
4. Misplaced Literalism and Misplaced Qualifiers –
o Misplaced Literalism- That occurs when a writer takes
someone's words out of context. If you merely quote a
short passage from a book, you may not get an
accurate idea of what the author's opinion is. Quotes
are all right, but the sentences around them must be
perused to determine if there are contradictions to
the quoted passage.
o Misplaced Qualifiers – qualification or limitation
imposed upon a rule or principle that does not fit with
the purpose for the rule or principle.
5. Balancing Fallacies - Constitutional Balancing (Measuring the
unmeasurable/ comparing the incomparable) – process that
analyzes a constitutional question by identifying interests
implicated by the case and reaches a decision or constructs a
rule of constitutional law by explicitly or implicitly assigning
values to the identified interests
How to avoid:
i. All relevant interests are identified
ii. The interests are evaluated at their proper level of abstraction
 iii. The value of each interest is subject to some common
denominator that allows the interests to be meaningfully
compared
iv. There is some way of quantifying the relative weight to eb
accorded to consti interests as compared with non-consti social
interests
6. Secundum Quid -sweeping generalization – that neglects
necessary qualifications. Is present when a general rule is
fashioned from insufficient or atypical particulars.
V. Fallacies of irrelevance and Diversion
They inject clearly irrelevant matters into the argument, either to
intentionally prejudice the audience or to draw it off the path of reason.
1. Hyperbole – an exaggeration or overstatement for rhetorical effect.
It presents danger of deception pag di mo narecognize.
Common types:
- Familiar catch-words : clearly, plainly, axiomatic, obviously,
absolutely, completely, etc. (assure the audience to not think of
the problem or to stall disagreement from those who think about
the problem.
- Use of descriptive terms to belittle or deprecate opposing
interests to minimize their significance : merely, simply or only, etc.
2. Ad hominem - attacking the person rather than the argument.
3. Emotional Appeal – using emotions to persuade the audience (use
anger, greed, pity, sympathy etc)
4. Ignoratio Elenchi (irrelevant conclusion) - occurs when an
argument purporting to establish one conclusion is misdirected
either intentionally or accidentally, toward proving a different
conclusion that is not in question.
Ex sa article: WON death penalty should be placed upon the
convicted
For death penalty counsel: well the accused definitely did not think
it was cruel to put the innocent victim to death.
** persuasive pero di rin naman niya sinagot kung bakit dapat
patawan ng death penalty.
5. The Straw Man: a species of ignoratio elenchi. Arguing by first
distorting the argument so that you are not actually attacking the
argument but a straw man that can be easily knocked down.
Attacking irrelevant parts of the argument that are easier to attack,
rather than attacking the main argument.
Cause and Avoidance
A. Causes of Fallacies
4 probable explanations why they occur:
i. Compromise - to gain majority or even plurality.
SC: To add or accommodate the views of other justices.
ii. Self- Deception – pinaniniwala lang natin sarili natin na tama
arguments natin. Our self-interest, personal biases, values and
conviction blind us to flaws of our reasoning.
iii. Supplemental persuasion - just because our arguments are
logical does not automatically mean we will get the vote of our
peers. Mag gawa ka ng fallacy para dumami makiside sayo,
persuade mo sila na tama ka.
iv. Result Oriented Decision Making - decision muna gagawin ng
mga judge tas tska gagawa ng logical argument dun sa decision
rather than mag gawa ng logical argument tas tska mag conclude
ng logical decision.
B. Avoiding Fallacies – 6 useful guidelines:
i. Premises must be at least probably true
ii. Essential premise must be stated.
iii. Conclusion must at least probably follow from the premise
iv. Conclusion cannot be used to prove itself
v. Competing arguments must be fairly met
vi. Rhetoric must not supplant reason (filter out mo ang mga
fallacies)

VI. Conclusion
We need to recognize a fallacy when there is one and be able to
distinguish what kind of fallacy it is in order to correct it.
Best way to avoid fallacies is by being familiar with them and
understanding them.
Such skill is important for law students, lawyers and judges for our
profession revolves around making sound arguments to prove our
claim.
----the end---