ltl course outline_finals_review guide_march2013 (1)

7/27/2019 LTL Course Outline_Finals_Review Guide_march2013 (1)

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LEGAL TECHNIQUE AND LOGIC (LTL 122)First Year Law

Bulacan State University College of LawAtty. Raquel R. T. Pineda-Dolores

Suggested Reading Materials/Sources:

Aldisert, Ruggero J., Logic for Lawyers: A Guide to Clear Legal Thinking (3rd ed.,1997)Epstein, Richard L., Critical Thinking (2nd ed., 1992)Moore, Brooke Noel and Parker, Richard, Critical Thinking (7th ed., 2005)

COURSE OUTLINE FINALS REVIEW GUIDE

I. Introduction

A. Basics of logic and its application to legal thinking and legalargument

B. Civil Law Tradition v. Common Law Tradition1. Definitions and differences2. Is the Philippine legal system a civil law or common law system?

Common law crimes

Doctrine ofnullum crimen nulla poena sine lege

Exercise of the power of judicial review3. Reasoning and the Common Law Tradition

a. Adjudication of specific casesb. Universal acceptance derives from longevity, publicationof judicial opinion, and conclusions reached by a publiclyexpressed reasoning process (rules of logic)

c. Fundamental characteristics of common law traditiond. Doctrine of precedent or stare decisis (stare decisis et

non quieta movere)

C. The Role of Logic1. Case law stands or falls on the reasons articulated to justify it2. Formation of principles in case law emerges from the process of

inductive generalization

3. Value Judgments

II. Legal Thinking

A. Moral, Aesthetic and Legal Reasoning

1. Moral reasoning and moral deliberationa. Moral relativism


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b. Utilitarianismc. Duty theory or deontologismd. Divine command theorye. Virtue ethics

Cases:White Light Corp., et al. v. City of Manila, G.R. No. 122846, 20 January

2009Estrada v. Escritor, A.M. P-02-1651, 4 August 2003Estrada v. Escritor, A.M. P-02-1651, 22 June 2006

2. Aesthetic reasoning

3. Legal reasoning

Similarities between moral and legal claims: they are bothoften prescriptive (they tell us what we should do); bothplay a role in guiding our conduct

Moral offenses; crimes listed in our penal code that alsoare offenses against morality; exceptions

Grounds for justification of lawsa. Legal moralismb. Harm principlec. Legal paternalismd. Offense principle

Appeal to precedent

Cases:Estrada v. Escritor, A.M. P-02-1651, 4 August 2003Ebralinag, et al. v. Division Superintendent of Schools of Cebu, et al.,G.R. Nos. 95770 & 95887, 29 December 1995

Philippine Guardians Brotherhood, Inc. (PGBI) v. Comelec, G.R. No.190529, 29 April 2010

B. Elements of Legal Thinking

III. The Language of Logic

A. Basic expressions in logic

B. Conclusion testing

IV. Introduction to Deductive Reasoning and Inductive Reasoning

A. Deductive Reasoning

Two propositions which imply the third proposition, the conclusion, arecalledpremises. The broad proposition that forms the starting point ofdeduction is called the major premise; the second proposition is calledthe minor premise. The major premise represents the all; the minor

premise, something or someone included in the all.


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B. Inductive Reasoning

In law, as in general logic, there are fundamental differences betweenthe two types of reasoning:

Deductive Reasoning Inductive ReasoningThe connection between a givenpiece of information and anotherpiece of information concluded fromit is a necessaryconnection.

The connection between given piecesof information and another pieceinferred from them is nota logicallynecessary connection.

A deductive argument is one whoseconclusion is claimed to follow fromits premises with absolute necessity.If the premises are valid, theconclusion is valid. If the conclusionis valid, the premises are valid.

An inductive argument is one whoseconclusion is claimed to follow fromits premises only withprobabilityandnot absolute necessity. All that isrepresented is that the conclusion ismore probable than not. Its premisesdo not provide conclusive support forthe conclusion; they provide onlysome support for it.

In a valid deductive argument, if thepremises are true, the conclusionmustbe true.

In a valid inductive argument, theconclusion is not necessarily anabsolute truth; by induction, wereach a conclusion that is only more

probablytrue than not.Moves by inference from the general(universal) ultimately to theparticular.

Moves from the particular to thegeneral (universal) (inducedgeneralization by enumeration ofinstances), or from the particular tothe particular (analogy).

The core of the difference lies in the strength of the claim that is madeabout the premises and its conclusion.

1. Inductive Generalization

Formulating a generalization in the law enumerating aseries of tight holdings of cases (legal rules) to create ageneralized legal precept (legal principle) is at best alogic of probabilities.

2. Analogy

Pursuant to the method of analogy, the courts do not

generalize from a series of holdings, but proceed fromcertain relevant resemblances and differences betweenthe case at bar and another single case or a relativelysmall group of cases.

V. Deductive Reasoning

A. Categorical Syllogism


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Categorical syllogism: deductive argument which consists ofthree categorical propositions, consisting exactly three terms, inwhich each of the three terms occurs in exactly two of thepropositions.

1. Termsa. Major Termb. Minor Termc. Middle Term

2. Premisesa. Major Premiseb. Minor Premisec. Conclusion

3. Quantity of Propositions or Termsa. Propositions:

i. Broad or general universalii. Narrow or specific particular

b. Terms:i. Broad or general distributedii. Narrow or specific undistributed

4. Categorical Propositions and Classes

Case: MacPherson v. Buick Motor Co., 227 N.Y. 382, 111 N.E.1050 (1916) include Chief Judge Bartletts dissenting opinion

B. Enthymeme

1. Identifying unstated premises2. Identifying unstated conclusions

Case: Leliefeld v. Johnson, 659 P.2d 111 (1983)

C. Polysyllogism

Prosyllogism

Episyllogism

D. Premises: Validity and Soundness

E. Six Rules of the Categorical Syllogism (CS)1. A valid CS must contain exactly three terms, each of which is used

in the same sense throughout the argument.2. In a valid CS, the middle term must be distributed in at least one

premise.3. In a valid CS, no term can be distributed in the conclusion which is

not distributed in the premise.4. No CS is valid which has two negative premises.


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5. If either premise of a valid CS is negative, the conclusion must benegative.

6. No valid CS with a particular conclusion can have two universalpremises.

Cases:

Morales Development Co., Inc. v. Court of Appeals, et al., G.R. No. L-26572,28 March 1969

Tavora v. Gavina, G.R. No. L-1257, 30 October 1947, including Resolutiondated 11 December 1947


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VI. Inductive Reasoning

Critical in the common-law tradition; undergirds the doctrine ofprecedent: like things must be treated alike

A. Inductive Generalization (induction by enumeration)

Underlies the development of the common law; from manyspecific case holdings, a generalized proposition is reached.

B. Analogy

Does not seek proof of an identity of one thing with another, butonly a comparison of resemblances.

Unlike the technique of enumeration, analogy does not dependupon the quantity of instances, but upon the quality ofresemblances between things.

In the law, points of unlikeness are as important as likeness inthe cases examined.

Criteria in the appraisal of analogical 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 thepurported analogies. An argument based on a single relevantanalogy connected with a single instance will be more cogentthan one which points out a dozen irrelevant resemblances.

Cases:MacPherson v. Buick Motor Co., 227 N.Y. 382, 111 N.E. 1050 (1916)Nielson and Co., Inc. v. Lepanto Consolidated Mining Co., G.R. No. L-21601, 17 December 1966

VII. Introduction to Fallacies

In ordinary usage, fallacy can be used to describe a false or erroneousidea; in the law, it refers to the logical form or content of a syllogism.

Fallacies are dangerous because they are false conclusions orinterpretations resulting from thinking processes that claim or appearto be valid, but fail to conform to the requirements of logic.

A. Formal Fallacy argument whose conclusion could be false even if allits premises are true; can be detected by examining the form orstructure of the argument

B. Informal Fallacy any other argument that does not properly establishthe supported conclusion; an argument contains an informal fallacywhen at least one of its premises is not true, or when the rules ofinference are not properly respected


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VIII. Formal Fallacies

A. Fallacies in Categorical Syllogism

1. The Fallacy of Four Terms (Quaternio Terminorum)

Logical quadruped argument has more than threeterms

When an argument has in effect two middle terms, it lacksany

basis of comparison for its minor and major terms, so thatit is impossible to draw a legitimate conclusion.

If a term is used in more than one sense, it also violatesRule One; it also constitutes the material fallacy ofequivocation (infra). The use of an ambiguous term inmore than one of its senses amounts to the use of twodistinct terms.

2. The Fallacy of Undistributed Middle

In order to effectively establish the presence of a genuineconnection between the major and minor terms, thepremises of a syllogism must provide some informationabout the entire class designated by the middle term. Ifthe middle term were undistributed in both premises,then the two portions of the designated class of whichthey speak might be completely unrelated to each other.

3. The Fallacy of the Illicit Process of the Major Term andMinor Term

a. Illicit Major

Major term in the major premise is undistributedbut is distributed in the conclusion; the term isapplied to all members of a class in the conclusioneven though it was limited to some members of theclass in the major premise.

b. Illicit Minor

Minor term in the minor premise is undistributed byis distributed in the conclusion.

Case: Suga, et al. v. Lacson, et al., G.R. No. L-26055, 29 April1968

4. The Fallacy of Negative Premises/Exclusive Premises

The purpose of the middle term in an argument is to tiethe major and minor terms together in such a way that aninference can be drawn, but negative propositions state


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that the terms of the propositions are exclusive of oneanother. In an argument consisting of two negativepropositions, the middle term is excluded from both themajor term and the minor term, and thus there is noconnection between the two and no inference can bedrawn.

5. The Fallacy of Particular Premises (Drawing anaffirmative conclusion from a negative premise, ordrawing a negative conclusion from an affirmativepremise)

An affirmative proposition asserts that one class isincluded in some way in another class, but a negativeproposition that asserts exclusion cannot imply anythingabout inclusion. For this reason an argument with anegative proposition cannot have an affirmativeconclusion.

6. Existential Fallacy

Because we do not assume the existential import ofuniversal propositions, they cannot be used as premisesto establish the existential import that is part of anyparticular proposition.

B. Fallacies in Hypothetical Syllogism

Hypothetical Syllogism this does not directly assert theexistence of a fact; instead, it contains a condition, if,

unless, granted, supposing, etc.

Hypothetical proposition conditional if-then statement;compound proposition in that every such propositionconsists of two component propositions:a. Antecedent component proposition following ifb. Consequent component proposition following

then

Forms and fallacies:a. Modus ponens valid if and only if:

i. the categorical premise affirms the

antecedent of the conditional premise; andii. the conclusion affirms the consequent of the

conditional premise

Fallacy of affirming the consequent

b. Modus tollens valid if and only if:i. the categorical premise denies the

consequent of the conditional premise; and


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ii. the conclusion denies the antecedent of theconditional premise

Fallacy of denying the antecedent

C. Fallacies in Disjunctive Syllogism

Disjunctive Syllogism one premise takes the form of adisjunctive proposition and the other premise and the conclusionare categorical propositions which either deny or affirm part ofthe disjunctive proposition

Moods of disjunctive syllogism:1. Mood Which By Denying Affirms this does not assume

that the disjunction asserts two mutually exclusivedisjuncts; the disjunctive proposition is not taken to affirmcategorically that only one disjunct is true; it says onlythat at least one disjunct is true, leaving open thepossibility that both may be true

2. Mood Which By Affirming Denies this assumes that thedisjunction asserts two mutually exclusive disjuncts; thedisjunctive proposition is taken to affirm categorically thatonly one disjunct is true

Fallacies:1. Fallacy of Missing Disjuncts failure to include all

possibilities or alternatives in the major premise2. Fallacy of Nonexclusivity applies only to the second

mood; occurs whenever one assumes that affirming onedisjunct shows the other to be false, when in fact it ispossible for both to be true

IX. Informal Fallacies

A. Fallacies of Irrelevance and Distraction

1. Fallacy of Irrelevant Evidence (Ignoratio elenchi) orFallacy of Missing the Point

Purports to establish a particular conclusion but is insteaddirected to proving another conclusion

2. Fallacies of Distraction

Shift attention from reasoned argument to other thingsthat are irrelevant, irrational and often emotional

a. Appeal to Pity (Argumentum ad misericordiam)

Evades the pertinent issues and makes a purelyemotional

appeal

Not a fallacy when relevant to the decision, e.g.equity cases and discretionary sentencing;however, if the question under consideration is a


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factual issue, an appeal to pity is irrelevant, anddeflects attention away from the facts.

b. Appeal to Prestige (Argumentum ad verecundiam)or Appeal to Inappropriate Authority

Appeal to authority or prestige of parties having nolegitimate claim to authority in the matter at hand

Use of pedantic words and phrases, references,quotations, length, detail and specificity

Case:Neill, J., dissenting, Cresap v. Pacific Inland NavigationCo., 478 P.2d 223, 228 78 Wash.2d 563 (1970)

c. Appeal to Ridicule (Argumentum ad hominem)

Shifts an argument from the point being discussed(ad rem) to irrelevant personal characteristics of an

opponent, and makes the opponent the issue However, ad hominem may be allowed in the use of

evidence of both bad character and bias for thepurpose of attacking a witness credibility. Anotherproper use is in receiving expert witness testimony.

See:Rules of Court:Sec. 20 Rule 130 (Witnesses; their qualifications)Sec. 51 Rule 130 (Character evidence not generallyadmissible; exceptions)

Sec. 11 Rule 132 (Impeachment of adverse partyswitness)Sec. 14 Rule 132 (Evidence of good character of

witnesses)

Cases:Melvin v. Belen, A.M. No. RTJ-08-2119, 30 June 2008Sy, et al. v. Fineza, A.M. No. RTJ-03-1808, 15 October

2003

d. Appeal to the Masses (Argumentum ad populum)

Departs from the question under discussion and

attempts to win assent to a proposition by makingan appeal to the feelings and prejudices of themultitude

Approaches:a. Bandwagon Approach - Everybody isdoing it.b. Patriotic Approach - "Draping oneself in

the flag.


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c. Snob Approach - All the best people aredoing it.

5. Appeal to the Ages or Tradition (Argumentum adantiquitam)

Holds that determinations and customs of ourfathers and forbears must not be changed

6. Appeal to Novelty, Modernity or Youth(Argumentum ad novitatem)

Claims that an idea or proposal is superiorexclusively because it is new and modern

7. Appeal to Terror (Argumentum ad terrorem)

Appeal to fear of exaggerated consequences in theevent an adversarys argument prevails

8. Argument from Force (Argumentum ad baculum) Substitutes veiled threats for logical persuasion or

asserts something must be the case becausethats just the way things are

9. Argument from Ignorance (Argumentum adignoratiam)

Argues that a proposition is true simply on thebasis that it has not been proved false, or that it isfalse because it has not been proved true

Exception: meeting ones burden of proof in a trialSee:

Sec. 2 Rules 133 Rules of Court (Proof beyondreasonable doubt)

10. Straw Man Argument

Includes any lame attempt to prove an argumentby overstating, exaggerating, or over-simplifyingthe arguments of the opposing side

11. Fallacy of Stacking the Deck

The speaker stacks the deck in his favor byignoring examples that disprove the point, and

listing only those examples that support her case.This fallacy is closely related to hastygeneralization, but the term usually impliesdeliberate deception rather than an accidentallogical error.

12. Hypothesis Contrary to Fact (Argumentum adspeculum)


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Trying to prove something in the real world byusing imaginary examples alone, or asserting that,if hypothetically X had occurred, Y would have beenthe result.

13. Genetic Fallacy

Claims that an idea, product, or person must beuntrustworthy because of its racial, geographic, orethnic origin

B. Fallacies of Context and Content

1. Overzealous Application of a General Rule / Fallacy ofAccident (Dicto simpliciter)

Applies a generalization to an individual case that it doesnot necessarily govern; the mistake often lies in failing torecognize that there may be exceptions to a general rule

2. Hasty Generalization / Fallacy of Selected Instances

Occurs when we construct a general rule from aninadequate number of incidents; results fromenumerating instances without obtaining a representativenumber to establish an inductive generalization

Fallacy of Statistical Simplicity

The probability of a sampling error tends to diminish asthe size of

the sample increases. But size alone is no protection.

3. False cause

Treats as the cause of a thing something that is not reallyits cause

a. No causa pro causa

Mistakes what is not the cause of a given effect asthe real cause; the events could be so correlatedbecause they were both caused by a third,unexamined event, although neither caused theother

b. Post hoc ergo propter hoc

The suggested inference that one event is thecause of another simply because the first occursearlier than the other; more prevalent in the law

B comes after A (post hoc). Therefore (ergo), Bcomes because of A (propter hoc).

4. Irrelevant Conclusion (Non sequitur) or Fallacy of theConsequent


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Argument that contains a conclusion that does notnecessarily follow from the premises or any antecedentstatement offered in its support

The difference between thepost hoc and the non sequiturfallacies is that the post hoc fallacy lacks a causalconnection; the non sequitur fallacy lacks a logicalconnection.

5. Compound (complex) questions

Arises when: (1) two or more questions are asked at once,and a single answer is required; (2) a question is phrasedas to beg another question; (3) the question makes a falsepresumption or (4) the assertion frames a complexquestion but demands a simple answer.

See: Relevant rules on Evidence, e.g. laying the basis orpredicate for questions in the examination of witnesses

6. Circular Argument / Begging the question (Petitionprincipii)

Assumes the truth of what one seeks to prove in the effortto prove it; the conclusion lies buried in the premises usedto reached that conclusion

Case:Viray, et al. v. Court of Appeals, G.R. No. 92481, 9 November

1990

7. Tu quoque

A charge of wrongdoing is answered by a rationalizationthat others have sinned, or might have sinned.

Yet, in the law, tu quoque arguments can sometimes beused as an effective defense, e.g. in matters ofprovocation, in the equitable defense ofin pari delicto

See:Article 13(4), Revised Penal Code (mitigating circumstance ofsufficient provocation or threat of the offended party whichimmediately preceded the act)

Case:

Bercero v. Capitol Development Corporation, G.R. No. 154765,29 March 2007


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C. Linguistic Fallacies1. Equivocation

Confuse several meanings of a word or phrase in thecontext of an argument; allow the meaning of a term toshift between the premises of the argument and theconclusion

2. Amphibology

Ambiguity comes from the grammatical structure; thedouble meaning lies not in the word but in the syntax orgrammatical construction of a sentence

Arise in an argument where meaning is muddled byslovenly syntax bad grammar, poor punctuation,dangling participles, misplaced modifiers

3. Composition

Mistakenly impute the attributes of a part of a whole tothe whole itself

4. Division

Mistakenly argue that attributes of a whole must also bepresent in each part of that whole

5. Vicious Abstraction

Removal of a statement from its context, therebychanging the meaning of an argument

6. Argumentum ad nauseum

Unnecessarily long brief or a windbag oral argumentwhere the advocate seeks to sustain his position byrepetition piled upon repetition rather than by succinct,effective proof or logical development

ltl course outline_finals_review guide_march2013 (1)

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