Legal Writing 1.1: Deductive Reasoning
I. The Analytical Paradigm
- This is the paradigm used for legal analysis, predictive or persuasive.
- All lawyers follow this paradigm to make legal arguments.
- The analytical paradigm is the use of deductive reasoning, working from general to specific, to apply new facts to well established rules.
- Deductive reasoning is accomplished using a three-part syllogism (described in further detail below).
- Other rhetorical tools (like appeals to justice, fairness, and democratic values) can be made only as part of, or in addition to, the deductive approach.
II. The Legal Syllogism
- The first part of a syllogism is the major premise, which is a rule of general applicability (ie. a rule that applies not just to a single person or situation, but rather to a category of people or situations).
- The second part of a syllogism is the minor premise, which is a set of specific facts or situations.
- The third part of a syllogism is the conclusion which is a statement that the minor premise meets the requirements of the major premise (ie. the specific facts meet the rule).
III. Syllogism Examples
A. Socrates Example
- Major Premise: All people are mortal.
- Minor Premise: Socrates is a person.
- Conclusion: Socrates is mortal.
B. Beyonce Example
- Major Premise: All people are mortal.
- Minor Premise: Beyonce is a person.
- Conclusion: Beyonce is mortal.
IV. Tasks of the Attorney When Engaging in Syllogistic Reasoning
- First, an attorney must identify the major premise (i.e., “the rule”), which is derived from one or multiple sources legal authority, such as a statute, a regulation, a case, or all three.
- Second, the lawyer must identify a specific set of facts.
- Third, the lawyer must conclude that the facts must apply to the rule, and, therefore, the syllogism is accurate.
V. Legal Example of a Syllogism
Imagine that you are representing someone who was driving 35 miles per hour in a school zone, where the relevant state statute says that people may drive only 25 miles in a school zone.
- Major Premise: An individual may not drive more than 25 miles per hour in a school zone.
- Minor Premise: Your client drove 35 miles per hour in a school zone.
- Conclusion: Because your client was caught by police driving more than 25 miles per hour, your client’s conduct violated that law.
VI. Challenging a Legal Argument
A. Option #1: Challenge the accuracy of the major premise (i.e., the rule).
- You may argue that the rule is wrong or incomplete.
- Maybe the rule is more nuanced. (e.g., People may not drive more than 25 miles per hour in a school zone during school hours.)
- Maybe the rule contains an exception. (e.g., People may not drive more than 25 miles per hour in a school zone during school hours, unless there is an emergency.)
B. Option #2: Challenge the minor premise (i.e., the facts).
- You could argue that your client wasn’t actually driving 35 miles per hour, or that the area in which your client was driving was not, in fact, a school zone.
Lawyers follow the “analytical paradigm” to make their arguments.
Many law students come to law school thinking that they already know (00:03) how to make arguments and that what they really need to learn is the details of various areas of legal doctrine. In fact, for many law students, they come to law school for the very reason that their friends and family have said, for their whole life, that they’re really good at making arguments. The surprise comes then when students first encounter the fact that lawyersーall lawyers, advocates, judges, legislators, government attorneys, public interest attorneys, and so many othersーargue in a very particular way. It’s not just based simply on what they think or what they believe, but rather based on the application of new facts to established precedent. In today’s lesson, I want to introduce you [to] how to conduct legal analysis, predictive or persuasive, using what is often called the (00:46) "analytical paradigm." The analytical paradigm draws its foundations from classical rhetoric and formal logic.
The analytical paradigm uses deductive reasoning, which is accomplished using a “syllogism.”
So, what is it? At its core, the analytical paradigm is the use of (00:58) deductive reasoning, working from the (01:00) general to the specific. It is the deductive approach that is used by attorneys (01:04) to apply new facts to well-established rules. Deductive reasoning is accomplished using what is known as (01:10) a “syllogism.”
The Three Parts of a Syllogism
Every syllogism has three partsーa (01:14) major premise, a (01:15) minor premise, and a (01:16) conclusion. The (01:18) major premise is simply a rule of general applicability, or, put differently, a rule that applies not just to a single person or situation, but rather to a category of people or situations. The (01:30) minor premise, by contrast, is a set of specific facts or situations. And finally, the (01:36) conclusion is a statement that the minor premise meets the requirements of the major premise. So to recap, the major premise is the general rule. The minor premise is specific facts, and the conclusion is a statement that the specific facts meet the rule.
Example: Socrates Syllogism
That canonical example of the syllogism goes back to the time of (01:56) Socrates. In this traditional syllogism, the major premise is that all people are mortal. The minor premise is that Socrates is a person. And the conclusion is that, therefore, Socrates is mortal.
Requirements for an Effective Syllogism
The idea of a syllogism is straightforward. If crafted properly, it should be able to prove the conclusion beyond dispute. All that is necessary is that the major premise is true, the minor premise is true, and it is accurate that the minor premise applies to the major premise.
Another Example: Beyonce Syllogism (same major premise but different facts)
So, take another example. Let’s assume the major premise is exactly the same: all people are mortal. But the minor premise is not that Socrates is a person, but that Beyonce is a person. See, the major premise is exactly the same, but [for] the minor premisethe facts are 100% different. But the syllogism still works. The conclusion is equally valid that Beyonce is mortal.
Tasks of the attorney when engaging in syllogistic reasoning
Task #1: Identify the rule.
For lawyers, the power of deduction and syllogistic reasoning is in the certainty, or apparent certainty, it provides. As a result, the task of an attorney, when engaging in deductive or syllogistic reasoning, is threefold. First, lawyers must (03:08) identify a major premise. What lawyers often refer to simply as (03:11) "the rule." This rule is derived from one or many sources of legal authority. For example, a statute, a regulation, a case, or all three could be used to define the rule.
Task #2: Identify the facts that apply to the rule.
Second, lawyers articulate or identify a specific set of facts.
Task #3: Conclude that the facts must apply to the rule, and therefore the syllogism is accurate.
Finally, as a result, the lawyer concludes that the facts must apply to the rule and, therefore, the syllogism is accurate.
Hypothetical Situation - You represent someone who drove 35 mph in a school zone (when the speed limit is only 25 mpg in a school zone).
So, let’s take a look at a legal example. Let’s assume that you’re representing an individual who was driving 35 miles per hour in a school zone where the relevant statute in that state says that people may only drive 25 miles per hour in a school zone.
Major premise, minor premise, and conclusion in this situation.
So, what is the rule or major premise? The rule here is that an individual may not drive more than 25 miles per hour in a school zoneーexactly what the statute says. And what’s the minor premise? The minor premise is that your client drove 35 miles per hour in a school zone. Therefore, in the government’s case against your client, the government will just use syllogistic reasoning. To conclude, because your client was caught by a police officer driving more than 25 miles per hour, your client’s conduct violated that law.
How to Challenge a Legal Argument
Option #1: Challenge the accuracy of the major premise.
But, it’s your client. What can you do? The syllogistic reasoning feels perfect or unimpeachable. But, you’re a lawyer now, so let’s figure out a way to (04:31) challenge the argument. You have two options. First, you can (04:36) challenge the accuracy of the major premise. You can argue simply that (04:41) the rule is wrong or, at best, incomplete. For example, perhaps the statute is actually more (04:46) nuanced. Something likeーpeople may only drive 25 miles per hour in a school zone during school hours,or what if there was (04:54) an exception? People may only drive 25 miles an hour in a school zone, unless there is an emergency. To be sure, you would only want to make these challenges if you had facts to back them upーfor example, if you knew it was not during school hours or the driver was in an emergency.
Option #2: Challenge the minor premise.
The other way to challenge the syllogism is to challenge the minor premise (the facts). Maybe, for example, you have evidence that your client wasn’t actually driving 35 miles an hour or that the area your client was in was not, in fact, a school zone. In other words, you can (05:26) challenge the major premise or you can (05:28) challenge the minor premise (the rule or the facts being applied to that rule).
Other rhetorical tools will only be used as part of, or in addition to, this deductive approach.
So, at this point, you may be thinking syllogistic reasoning seems pretty formulaic, or even mechanical. Where’s the fiery rhetoric? Where’s the appeal to justice, fairness, and democratic values? Where is counsel pointing to the witness and saying, “But you lied. Isn’t that right, sir?” Don’t worry. There are ways to bring those arguments into legal analysis too. But, that’s the icing of legal argument, not the cake. Those appeals to (05:54) other rhetorical tools can only be made as part of, or in addition to, the deductive approach to effectively show the audience the answer, or likely answer, to a particular legal question. For now, recognize the power of deductive syllogistic reasoning. It allows lawyers to argue in a clear, concise, and most of all, logically-driven way that applies the law equally to all people. And that is why it’s the foundation of legal reasoning.
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