Chapter 14

LAW AND LOGIC

14.1. Introduction: Logic and Legal Reasoning

The relation between law and logic has been governed, as many of the most
intense relationships are, by both a strong attraction and persistent strife. Let
us consider first the reciprocal attraction between the two disciplines, then the
reasons for their strife, and finally a way to find a possible accommodation.

14.1.1. The Attraction between Law and Logic

On the one hand, law—with its rich and diverse palette of reasoning forms and
with its large social relevance—has appealed to logicians as an ideal field for
application and experimentation. Law offers a large-scale effective decisional
practice, in real-life contexts, frequently accompanied by reasoned justifications.
Moreover, legal reasoning represents a middle way between formal inference
and commonsense thinking: Even though legal discourse is not formal, it tends
to appear in uniform and relatively structured ways, so that its patterns can be
made accessible to logical analysis.
On the other hand, logic—with its capability of providing instruments for
rational thinking—has appeared to many lawyers as a necessary tool for improv-
ing legal reasoning and communication. Since the young Leibniz proposed the
transposition of the axiomatic approach to law (Leibniz 1974), by expressing the
legal system in a few propositions, from which all legal conclusions could be “ge-
ometrically” derived, many lawyers were fascinated by the analogy between the
logical deduction of a conclusion from a set of axioms, and the judicial deriva-
tion (justification) of a decision from legally binding sources. Reducing judicial
reasoning to logical deduction would ensure certainty and testability, it would
constrain the arbitrariness of human decision-making.

14.1.2. The Conflict between Law and Logic

However, the relation between law and logic has not always been that of a peace-
ful cooperation. Both partners have felt, at certain times, deep reciprocal dis-
trust, accompanied sometimes by indifference or open attack. It is no surprise
that a lawyer may resent being described as “logical” or “formalist,” by which
the lawyer may understand “pedantic” and “non-creative,” and in the same way
a logician may resent being attributed lawyerlike captiousness and verbosity.
390 TREATISE, 5 - LEGAL REASONING

More specifically, legal experience may appear to the logician (and more gen-
erally to the scientifically trained mind) as dominated by rhetorical appeals, mag-
ical conceptions, and unreasoned reliance on authorities: So much is legal prac-
tice a mixture of persuasion, superstition, and brute strength, that no canon of
rationality can either be derived from, or be applied to it. On the other hand, a
lawyer may find logic trivial and barren: Its complex and technical mechanisms
just make explicit what is already known, without offering any substantial help
to the creative task of constructing legal solutions adequate to new problems (to
“the art of the good and the equitable”, The Digest of Justinian, 1.1.1).1
The assumption of a basic, irreconcilable conflict between formal logic and
legal reasoning motivated, from the end of the fifties, a number of attempts at
grounding an alternative account of legal reasoning in the tradition of rhetoric
and argumentation.2 Legal reasoning often defined itself according to the argu-
mentative technique which Perelman and Olbrechts-Tyteca (1969, 411ff.) call
dissociation, that is, by pointing to a set of oppositions, which distinguished it
from formal logic and were often used as polemical tools, loaded with evaluative
connotations:
• Abstraction vs concreteness 1. Logic is abstract, since it only considers
those features that are translated into its formal language. Legal reason-
ing is concrete, since it is capable, by preserving the richness of natural
language, to capture the full-blooded content of legal problems.
• Abstraction vs concreteness 2. Logic is abstract, since it extracts the for-
malised data from the underlying network of beliefs and attitudes that
determines the contextual meaning of each piece of information. Legal
reasoning is concrete, since it takes into account the social and linguistic
background of the audience.
• Closeness vs openness 1. Logic is closed, since it assumes a fixed system
of knowledge. Legal reasoning is open, since it moves from assumptions
freely chosen from a pool of general ideas, maxims or principles.
• Closeness vs openness 2. Logic is closed, since it blindly derives all con-
sequences of a consistent set of premises. Legal reasoning is open, since
it allows for alternative principles to be dialectically harmonised.

1
The Latin original: “ars boni et aequi.”
2
The main reference is provided by the many contributions by Chaı̈m Perelman (and in par-
ticular Perelman and Olbrechts-Tyteca 1969, and Perelman 1979), but also Viehweg (1965) had
a large impact on the legal discussion. The rhetorical tradition was also developed in Italy, for
instance by Giuliani 1961 and 1966. More recently, in the German speaking area, legal rhetoric
has been a very active area of research, see for example: Ballweg and Seibert 1982; Haft 1990. In
the English speaking area, legal rhetoric can be connected to quite different kinds of jurispruden-
tial research. On the one hand there are various approaches to the law based on literary studies,
which we shall not be able to examine in this volume (see for instance: Jackson 1985; Fish 1989;
Goodrich 1990; for a critical discussion of the application of literary methods to the law, see Posner
1988; for a recent discussion of law and literature from continental Europe, see Ost et al. 2001).
On the other hand there are analyses of different kinds of informal arguments and fallacies (see,
for instance: Walton 1997 and 2002) and studies of dialectical interactions (see Chapter 11).