Reasoning Notes
Using Reason to
Determine What the Law Is (Case Law And Statutory Law)
Forms of Legal Reasoning: The Interpretation and Application of Legal Rules
Using Reason to Determine What the Law Is (Interpreting and Applying)
Using Reason to
Determine What the Law Is/Should Be (Interpreting and Applying the Law)
Legal Reasoning about Causes and Effect
Reasoning Before a Judge and/or Jury In General
Asking Questions Like a
Lawyer
Natural Law vs Legal Positivism
When we are asked to think about “arguments” the first image to come to mind might be that of attorneys arguing in court. Argument and logical reasoning is clearly indispensable for the practice of law. In court cases, lawyers are successful, in large part, to the extent that they can produce convincing evidence and argument in support of the conclusion they would like the judge and/or jury to believe. This will require the use of logical reasoning as well as the use of rhetorical devices and persuasive techniques. But in fact, many cases have been decided on the basis of bad arguments accompanied by some powerful rhetoric.
There are many varieties of law: administrative, commercial, criminal, international, tax, contact, family, etc. One might therefore think that there may be no distinctive common ground that one might call "uniquely legal reasoning." In a sense this is correct. However, we can distinguish additional reasoning skills applicable to most, if not all, of the aforementioned types of law.
Using Reason to Determine What the
Law Is (A)
First, we must note that in deciding legal cases we must determine what the law “is.” Now law comes to us in two main varieties: Case Law and Statutory Law. Identifying and applying these two different sources of law require distinct rational skills. Case law is law that has been established by previous precedent cases. Prior judicial decisions are used to guide the resolution of new legal cases, rather than specific statutes or regulations. As we shall see, the application of case law turns largely on inductive reasoning by analogy (e.g. like cases be decided alike, etc.). In contrast, statutory laws are laws written and/or passed by legislatures in federal and state governments and adopted by the society. The application of statutory law often takes on the character of deductive reasoning, the application of general principle under a common rule. (e.g. No non-citizen is allowed to vote in a federal election. John Smith is a non-citizen. Therefore, John Smith is not allowed to vote in this November’s federal election.)
Case Law, originally developed in England over a thousand years ago, with its reliance on precedent as the determining factor in current decisions. Its logical basis is the principle of treating similar cases similarly. Case law legal systems are distinguished from civil/statutory law systems, where there is greater reliance is on statutory enactments as typified by ancient Roman law. It is usual for our modern legal systems to make use of a combination of these two influences. Emphasis on case law/common law can be seen as an influence of English legal tradition and the emphasis on civil, statutory law owing to the influence of Roman law.
Case Law: Appeal to Precedent[1]
One kind of argument that occupies a special place in applying case law is “appeal to precedent.” As we discussed in the notes on emotivism, in ethical reasoning, we acknowledge the rational requirement that “like cases be decided alike. And where two cases are decided differently, we must state the morally relevant difference between the two.” The earlier case stands as a precedent and we must either conform to precedent, or point out how the current case is in fact importantly dis-analogous, or explain why the initial case was decided incorrectly in the first place.
This is the practice of using a case that has already been decided as an authoritative guide in deciding a new case that is similar. The appeal to precedent is an instance of an argument by analogy, in which the current case is argued to be sufficiently analogous to the previous case to warrant deciding it in the same way.
Appeal to precedent also assumes that logical consistency must be maintained as we build our edifice of legal knowledge. (See my notes on “coherence theory of truth” at the end of “Logical Positivism and Emotivism.”) Precedent is likewise appealed to in ethical reasoning. Cases that are relevantly similar must be treated the same way. To treat similar cases differently would be illogical; in law, we would further deem such actions as unjust. Now of course, the task at hand then becomes to determine whether the two cases are relevantly similar and that means determining what facts of the cases are pertinent to the law or principle at issue.
Stare Decisis
The Latin name for the principle of appeal to precedent is stare decisis.
Stare decisis[2] the legal principle of determining points in litigation according to precedent. ("Don't change settled decisions," more or less).
According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[3]
It should be noted that, in practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the initial decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents of this practice argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.
Thus, we see within case law legal reasoning an institutional and deliberate bias towards maintaining the existing rules. But note that this bias does not in fact presume the preexisting case law to be just, fair or even practical. And so, in point for fact, despite this bias, case law is far from immune to change. Judges have sometime made creative use of provisions within the law to avoid a straightforward application of precedent, especially in instances where such an application would result in what they deemed to be unfair or undesirable outcomes.
Nevertheless, to apply this sort of legal reasoning, the important question is whether the two cases are in fact analogues and so similar that treating them differently would violate stare decisis. Apart from their significance to the parties involved, legal reasoning by analogy is not different in principle from reasoning by analogy in any other context.
Thus, case law is law based on previous legal judgments made over hundreds of years. In the former, (most often) a judge refers to similar cases in the past and uses the judgments rendered as a basis for deciding the current case. In the development of the body of Case Law (Common Law), there is an ineliminable requirement of logical consistency and coherence with past judgement. Indeed, it is by this very requirement that the body of common law is built. Further, the new and presumably coherent judgments become, in effect, new precedents and thus new “laws” where there were no presiding statutes. Though they act as statutes, these are formed by judges rather than legislative bodies, judges interpreting the existing law and determining new boundaries and distinctions. Thus, Case Law is always in the process of being developed, refined and evolved on an everyday basis. Case law develops gradually through the rulings of appellate judges who may in fact have heterogeneous preferences, but are partially bound by stare decisis. Its evolution is therefore generally predictable as it converges toward more coherent and presumably more efficient legal rules.
Statutory Law and the Deductive Application of General
Rules
Statutory laws have statutes as their basis. Statutory law is the body of laws passed by various legislative bodies or regulatory government agencies of a country. Thus, they are laws passed by federal and state governments, ordinances passed by towns and cities all having the force and power of law. New laws are issued to meet the needs of the citizens, to resolve outstanding issues, and to formalize an existing law. The law-making process occurs apart from the case law (common law) process. Thus, statutory law, that is, the law crafted and approved of by legislative and/or regulatory bodies, strictly speaking, is not inherently constrained by the principles of coherence, analogical reasoning or stare decisis. This can bring statutory law into conflict with case law, conflicts themselves which must be addressed by appellate courts.
Statutory laws are developed by the government of a state or nation and these are organized and codified into law codes. They cover all areas regulated by statutory laws exclusively as well as those areas where common law is not applicable. Thus, statutory law does not share the inherent gradual and evolutionary properties of case law. Further, there is no analog to the stare decisis in statutory law requiring coherence with existing law. Legislatures are free to pass laws that are NOT consistent with existing law and often actually do so. Statute law can change abruptly and is therefore more beholden to political/democratic forces. This inevitably leads to a tension between two competing goods: the reliability of predictability (and presumably efficiency) via case law and the responsiveness of law to the will of the people through their elective legislative representatives via statutory law. Sometimes inconsistencies have to be worked out at the level of the appellate court.
Note another distinction between the two courses of law. The application of statute law is less inductive requiring analogical reasoning than case law, and more deductive in the sense of capturing a particular case under a general rule. If the statute states, “No confession, secured without the accused having been advised the Miranda rights, is admissible in court.” and it is the case that the current confession under consideration was procured from the defendant without having informed Miranda rights, then it follows that this confession is inadmissible in court. Note the syllogistic form of such an argument.
All un-Mirandized confessions are inadmissible confessions.
This confession is an un-Mirandized confession.
Therefore:
This confession is an inadmissible confession.
Forms of Legal Reasoning: The
Interpretation and Application of Legal Rules
·
Methods
that lawyers use to apply laws to facts in order to
answer legal issues.
·
Methods
that lawyers use to interpret laws so as to
apply the law to the facts in order to answer legal issues.
The meaning of a
legal rule and how it should be applied are often subject to multiple
interpretations, especially when the meaning of a legal rule is vague and/or ambiguous. Lawyers must use legal reasoning to argue for
the interpretation that they find most convincing, reasonable or that is most
favorable to their client.
Structure of
Rules: Elements
Step 1: Read and
determine the structure of the applicable legal rule.
Laws can be
written in a way that makes them difficult to understand. Interpretation of the
text of a law requires a systematic approach. Legal Rules have a fundamental
“if/then” structure: if the facts of a case satisfy a set of criteria (the elements),
then the law imposes consequences (the results).
Rule Elements
1) Legal Rules and Conjunctive
Requirements:
The antecedent
list elements, each and every one of which must be
satisfied before consequences result.
(The easiest way to identify a conjunctive test is to look for the word
“and.”
Example of a conjunctive test.
Civil Code Article 133(1)
A valid contract is a lawful contract . . . which is concluded by
parties of full capacities and has an object susceptible of its legal
consequences and its attributes are valid (proper) free of any defects.
Note this rule
specifies three elements, all of which must be met in order
for the contract to be deemed “lawful.”
This is a formal/ syntactic requirement.
It may remain a question as to what precisely “free of any defects”
means semantics). But as a syntactic
requirement, this is a conjunction of three items.
2) Legal Rules and Disjunctive
Requirements:
The antecedent
states a lists multiple elements, but only one of those elements must be
satisfied before consequences result.
Example of a Disjunctive test.
Penal Code Article 411(1)
Any person who accidentally kills another or causes him to be
killed without premeditation so that it is the result of negligence,
thoughtlessness, lack of due care and attention or lack of regard for any law,
regulation or decree is punishable by detention plus a fine or by one of those
penalties.
Multifactor
Elements
This rule
establishes a multi-factor test. It lays
out several criteria any one of which will trigger the application of the
rule. Thus, it requires a decision maker
to consider each of the criteria. Unlike the conjunctive test, the absence of
one element is not enough to invalidate the application of the rule.
Also note that
since the consequence itself refers to a range of options, the application of
the rule requires discretion in determining the significance, or weight that
should be assigned to each factor.
3) Balancing Requirements:
Sometime rules
with contain a “balancing” element which acts as a qualifier on the application
of the rule. A “balancing test” refers
to the need for the decision maker to weigh competing values or factors against
each other and determines which factor is more important to apply the rule.
Example of Balancing Tests:
Penal Code Article 137
If there exists any aggravating
circumstances in conjunction with mitigating excuses or circumstances which
call for leniency, the court shall take into consideration firstly the
aggravating circumstances, then the mitigating excuses and finally those
circumstances which call for leniency.
4) Rule Exception Requirements:
Rules might also
include elements which provide exceptions, or factual circumstances
specifically removed from the consequences of the law.
Example of Exception Requirements:
Penal Code Article 46
The right of legal defense does not permit any person to resist a
member of the public authorities in the execution of his duties even though he
has overstepped the bounds of that duty while acting in good faith, unless it
is reasonably feared that death or serious injury will result.
Structure of
Rules: Rule Results
Results can also
be divided into different categories.
·
Results
are mandatory when they require an action.
·
Results
are prohibitory when they forbid an action.
·
Results
are discretionary when they empower a government official to exercise their
judgment on whether or not to take a particular
action.
·
Results
are declaratory when they simply state what is and is not legal.
In general, the
key skill to develop is to learn how to break a legal rule into smaller pieces,
to understand its logical structure, and to determine if and how it applies to
the facts of a particular case.
Five Types of
Legal Reasoning
Once the
structure of a legal rule has been identified, one can then deploy forms of
legal reasoning to interpret its meaning. There are principle five types of
legal reasoning involving 1) rules, 2) analogies, 3) policies, 4) principles,
and 5) customs.
1) Rule-based reasoning relies on the use
of syllogisms, or arguments based on formal logic.
2) Analogical reasoning compares (or
contrasts) the facts of a yet-to-be-decided case with the facts of a previously
decided case and argues that the current case should be decided in a manner similar to (or different from) the previous case. This type
of reasoning often involves the use of prior judicial decisions.
3) Policy reasoning argues for a
particular interpretation of a legal rule because it would result in sound
public policy, or the best outcome for society at large, not just the parties
to the dispute. An argument from public policy might claim that a particular
outcome would promote the efficient, fair, and predictable operation of the
courts. It might be based on institutional competence, or the idea that
decisions should be left to the branch of government (executive, legislative,
or judicial) that has the skills and expertise to best resolve a dispute.
Public policy may also rely on economic reasoning, arguing that a one outcome
would promote economic growth, efficient resource allocation, or appropriate
balancing of costs and benefits better than another outcome.
4) Arguments from principle draw on
common social values, such as morality, justice, fairness, equality, democracy,
or personal freedom. Given an historic
commitment by society at large to a principle, it can be argued that the
resolution most in accord with this principle is the preferred/ correct one.
5) Finally, lawyers may argue that a law
should be interpreted so as not to conflict with social custom. However, in an increasingly culturally
pluralist society, these sorts of appeal are becoming inversely effective.
Using Reason to Determine What the Law Is (b) - Is/Should
Be
“What, in fact, is the law?” (i.e. interpreting the meaning and implications of some existing law) is distinct from the question “What should the law be?” in a broad and philosophical sense. Typically, jurists and practicing attorneys are more interested in the first two types of questions and legal philosophers and constitutional scholars in the latter. While existing law may, in fact, sanction “Separate but Equal” segregated education systems, one might argue on both legal and philosophical grounds that that is not what the law SHOULD be. Lex iniusta non est lex, the legal maxim meaning ‘an unjust law is not a law’ originated and was made famous by two Christian legal philosophers, St. Augustine and St. Thomas Aquinas. This is quoted by Martin Luther King Jr. in his “Letter from a Birmingham Jail” when he argues for peaceful civil disobedience in response to unjust “laws.” The maxim is considered to be central to the debate that distinguishes the Natural Law School of legal philosophy from that of the Legal Positivists. At the core of the debate lies the fundamental question regarding the role of moral standards/ reasoning in guiding the formulation of laws and the obligation of subjects to obey it with the natural lawyers generally agreeing that law is subject to moral standards, while the positivists generally agreeing that morality does not influence the legal sanction of law.
But there are further questions related to “What the law is” and/or ‘What the law should be?’’ concerning the practical question ”How should the law be applied?” These questions may appear different and somewhat easier than the question, “What should the law be?” in the grand philosophical sense, but they can still be very complicated and answering them often turns on assumptions about “What the law should be?” though perhaps in a narrower and more pragmatic sense.
Legal Process – Determining What Law Is: Interpreting
and Applying the Law I
First, in any individual legal case, there is the task of determining which Case Law(s) and/or Statute Law(s) is applicable to the legal situation. This requires determining what facts are relevant to the resolution. We have to examine the facts of the case in order to determine what other cases are relevant or what statutes might apply.
Determination of Case Law for a particular case is a process that begins with research analysis, identifying previous relevant cases, extraction of statements and previous sentences passed, in order to finally determine the case law(s) applicable. It also requires a review of the decisions of higher courts rulings over lower courts and relevant earlier cases.
Statutory laws are already written and need just to be applied to a specific case.
Legal Process - Interpreting and Applying the Law II
Second, we might point to the two more and importantly different critical tasks of
1) interpreting the law and
2) applying the law in specific instances.
Here is an example: Does a law outlawing motorized vehicles in a public park in fact outlaw motorized scooters such as those used by people with mobility disabilities? Regular motorized scooters? Electric bikes? All bikes?
As often occurs, the trouble is caused by vague verbiage. Nevertheless, try as we may, sometimes it is impossible to rid our talk entirely of troublesome vagueness. Thus, interpreting and applying the law will require the application of a precising definition guided by assumptions about what the law should be.
Applying the Law
Applying the law requires both deductive and inductive reasoning:
Deductive: the reasoning can be sound, valid, or invalid
Deductive reasoning includes categorical and hypothetical reasoning.
Inductive: the reasoning can range from very, very strong to very, very weak.
Inductive reasoning includes generalizing, reasoning by analogy, and inference to the best explanation.
Here's an example from the law:
Let's suppose that a city ordinance forbids vehicles on the paths in the city park. Clearly, a person violates the law if he or she drives a truck or a car down the paths. But what about a motorbike? A bicycle? A go-cart? A child's pedal car? Just what counts as a vehicle and what does not?
This is the kind of issue that must often be decided in court because -not surprisingly- the governing body writing the statute law could not foresee all the possible items that might, in somebody's mind, count as a “vehicle.” There was once a law in New Hampshire which made it illegal to excrete bodily fluids in public. Without realizing it, they had criminalized sweating in public. Perhaps crying as well. The process of narrowing down when a law applies and when it does not, then, is another kind of reasoning problem that occurs in connection with the law.
A less amusing example would be “Stand Your Ground” laws. More than half the states in the United States have adopted the "Castle Doctrine" -the legal position that a person does not have a legal obligation to retreat from a threat in his or her own home, and further that the person may use deadly force in order to thwart an attacker in such circumstances. In Florida, as in several other states, a further law was passed in 2005 that extended the right to use deadly force in self-defense to any place the defender has a legal right to be. Such laws have come to be known as "stand your ground" laws. Prior to the passage of such a law, it may have been argued that someone, outside of their home, has a legal obligation to retreat rather than use deadly force to thwart a potentially deadly attach if such a retreat is deemed feasible.
Whether the SYG laws have reduced or increased violence is not clear. Proponents and opponents have both cited evidence, and there have been studies that interested parties can check before making up their minds.
These laws came into sharp focus in February 2012, when George Zimmerman, a 28-year-old "multiracial" Hispanic, shot and killed Trayvon Martin, a 17-year-old black youth during a much-disputed confrontation. Martin was walking home from a convenience store to the house where his father's fiancée lived and where he was staying. Zimmerman, the neighborhood watch coordinator, was in his vehicle when he spotted Martin, and he called police to report him as behaving suspiciously.
Zimmerman left his car during the call, and soon after a violent encounter ensued, the only account of which is Zimmerman's, since Martin was shot dead in the fight. Zimmerman claimed Martin, who was unarmed, attacked him and that Zimmerman had fired his weapon in self-defense.
The Sanford, Florida police were subjected to criticism for delaying bringing charges against Zimmerman, the shooter. The cause of the delay, according to the police and local prosecutors, was the stand your ground law, which provides not only a defense in a criminal trial, but also provides immunity from civil suits and from a criminal trial under the right circumstances.
Zimmerman went to trial in June 2013 on charges of second-degree murder and manslaughter. On July 13, 2013, a jury acquitted him of both charges. It is worth noting that, although Florida's SYG law was clearly relevant to the case, Zimmerman's lawyers made scant reference to it during their defense. The extent to which it influenced the jury is not known.
Legal
Reasoning about Cause and Effect
Also, especially important when it comes to applying the law is careful reasoning about cause and effect. Causation is the foundation of legal liability. In some contexts, that a party is legally liable for something may mean more than simply that he or she caused it; but having caused it is normally a necessary condition for being legally liable for it. (See my notes on “Last Proximate Cause” from the module on causal reasoning.)
Justifying Laws: Four
Perspectives
The reasoning employed to justify or defend specific laws is similar to moral reasoning. Both types of reasoning involve applying general principles to specific cases, and both refer ultimately to one or more of a handful of basic perspectives within which the reasoning takes place. Indeed, the moral perspectives already discussed can and are used to justify and defend specific laws. For example, the utilitarian idea that it is desirable to increase the sum total of happiness is used to defend eminent domain (by which a state seizes a person's privately held property without his or her consent). And the deontological principle that others should not be used as the means to some end is used to argue against this same practice. The harm principle, discussed below, which holds that only what harms others should be legally forbidden, is an extension of deontological ethics (although, ironically, its most eloquent exponent was the consequentialist/ Utilitarian John Stuart Mill (1806-1873), who defends “rights” on consequentialist grounds: see “On Liberty”).
Of course, we are often most interested in a justification for laws that would forbid us to do something we might otherwise want to do or would require us to do something we would prefer not to do. Consider, then, whether a law that forbids doing X should be enacted by your state legislature.[4] Typically, there are four main grounds, or "perspectives," on which a supporter of a law can base his or her justification.
1. Legal Moralism: The first is simply that doing X is immoral. The claim that the law should make illegal anything that is immoral is the basis of the position known as legal moralism. One might use such a basis to justify laws forbidding murder, assault, or unorthodox sexual practices. For a legal moralist, the kinds of arguments designed to show that an action is immoral are directly relevant to the question of whether the action should be illegal.
2. The Principle of Harm: The next ground on which a law can be justified is probably the one that most people think of first. It is very closely associated with John Stuart Mill (1806-1873) and is known as the harm principle: The only legitimate basis for forbidding X is that doing X causes harm to others. Notice that the harm principle states not just that harm to others is a good ground for forbidding an activity, but that it is the only ground. Note further that, if the act is only harmful to the person or persons consenting to the act, this is NOT considered sufficient grounds for legally forbidding the act. On this view, “self-regarding” behaviors are not thought to be justly regulated by law. But as we noted when we examined consequentialist moral reasoning, the consequentialist is making empirical claims about what results from tolerating or forbidding a particular behavior. This cannot be idle speculation but needs to be grounded in objective facts. A person who defends this principle and who wants to enact a law forbidding X must present convincing evidence that doing X does indeed cause harm to others.
3. Legal Paternalism: A third ground on which our hypothetical law might be based is legal paternalism. Legal paternalism is the view that laws can be justified if they prevent people from doing harm to themselves; that is, they forbid or make it impossible to do X, for a person's own good. Examples include laws that require that seat belts be worn while riding in automobiles and that helmets be worn while riding on motorcycles. Many laws prohibiting or limiting the use of drugs also fall into this category.
4. Public Offence Principle: The last of the usual bases for justifying criminal laws is that some behavior is generally found offensive. The offense principle says that a law forbidding X can be justifiable if X causes great offense to others. Laws forbidding public urination and burning of the flag are often justified on this ground. Note here the claim is not that the behavior in question violates moral norms or moral rules, but rather that it is seen as offensive. There may be nothing immoral about urinating or having sex in public, but we might want to prohibit it legally because it is simply offensive
Reasoning Before a
Judge and/or Jury In General
Now it is clear that neither the jurors nor the judges can be led to agree with you and to accept your position as established by simply telling them that you would like to have them believe it. Neither can you succeed in convincing them by telling them that they ought to believe as you wish. The critical audience will not be cajoled or browbeaten into belief. How, then, are you to persuade?
First Rule of Rhetoric: Know Your Audience
The only method is to give them what they demand - reasons. This will require clearly stating what the issue is and why your answer to that question is correct.
1. Establish the issue(s) clearly and distinguish it/them from distractions that are NOT in fact at issue.
2. Establish what facts will logically compel the judge/juror to adopt your proposition.
3. Present them with those facts which prove that your resolution to the issue(s) is the correct one.
Naturally, the reasons given in support of one’s conclusion will not be effective unless they are reasons the audience does and/or will believe. And how are we to know what reasons the audience will believe? Consider why we ourselves believe the things we accept. We believe that which most accords with our own past experience, that is, those things which in our experience we have always found to be true. We are unwilling to belief something which is inconsistent with our past experience or even to accept a new belief which we did not previously accept and are agnostic about.
Of course, there are other things that we believe although we have not experienced them directly, but accept on the testimony of others. We believe that Columbus visited America in 1492, that Grant was a great general, that Washington was our first president. These things have not been experienced by us directly, but indirectly. Others, within whose experience these things have fallen, have led us to accept them so thoroughly that they have become our experience second hand. This is similarly true of sources of information. We are more likely to believe reports from individuals and news sources we have previously found to be accurate and trustworthy and to resist accepting accounts from sources we have previously deemed suspect or inaccurate.
So, what reasons will those in the audience believe? They will believe those statements which harmonize with their own experience and will discredit those which are at variance with their experience. This experience, as we have seen, may be firsthand, or direct; or it may be indirect, or second hand by trusted sources.
Thus, the successful speaker must base the argument upon reasons that the hearers believe because of their own direct or indirect experience. Suppose I assert: "John Quinn was a dangerous man." Someone says: "Prove that statement." I answer: "He was a violent thief." Someone says: "If that is true, he was a bad man, but can you prove that we was a violent thief?" Then I produce a copy of a court record which states that, on a certain day, a duly constituted court found John Quinn guilty of the armed robbery of a bank. All my hearers will (likely) now admit, not only that he was a thief, but also that he was a dangerous person. I have given them a reason to accept my conclusion, and a further reason for that reason, until at last I have shown them that my assertion, that John Quinn is a dangerous man, rests on what they themselves believe.
Sometimes a conclusion cannot be supported by a reason that will come directly within the experience of the audience. It is then necessary to support that by other reasons that do come within the experience of the audience. (Hence: know your audience.) You must find the common ground between you and build out from where they already are. Remember, then that the goal musty be to show them that the proposition you propose is, by the standard of their own experience, correct. Many attempts have been made to put evidence into different classes and to give objective tests of good evidence. However, the overriding concern one needs to be mindful of in judging the power of the evidence is whether it will be effective with the target audience. Will it be convincing to them? In other words, will it make their own experience quickly and strongly support the resolution to the issue you are proposing?
Legal Reasoning and Witness Testimony
In courts of law where witnesses appear in every case and testify as to circumstances that did or did not occur, it is necessary that the jury be able to distinguish carefully between what it should and should not believe. Witnesses often have a keen personal interest in the verdict and, therefore, are inclined to tell less or more than the truth. Sometimes witnesses are relatives of persons who would suffer if the case were decided against them and they have a tendency to give unfair testimony.
In order that the jury may decide as fairly as possible what evidence is sound and what is not, the attorneys on each side of the case make out a copy of what are called instructions. These are given to the judge who, provided he approves of them, reads them to the jury. Usually, these instructions urge the jurors to consider four things.
1. They must consider, first, whether or not the statements of the witness are probable; that is, are they consistent with human experience? Do they seem reasonable and natural?
2. A second thing which the jury is told to bear in mind is the opportunity which the witness had of observing the facts of which he speaks. Was the witness in a position to be familiar with the thing as described? In this connection, the jury is sometimes instructed to consider the physical and mental qualities of the witness. Is the witness a person who is physically and mentally able to judge what the witness testifies to and to have observed under the known circumstances?
3. A third factor which the jury must consider is the possibility of prejudice on the part of the witness. Does the witness have any reason to feel more favorably toward one side than toward the other? Is the defendant a friend or relative or employer, etc.?
4. A final consideration is what is commonly called "interest in the case." It is clear that if the witness will be benefited by a certain verdict, the witness may frame evidence and testimony in such a way that it will tend toward that desired verdict.
All these considerations are based on the general rule of referring to experience. What a judge really says in a charge to the jury is this: "Does your experience warn you that the testimony of some of these witnesses is unsound? Determine upon that basis in what respects these witnesses have told the whole truth and in what respects they have not."
To summarize then, the conclusion is to be proved by being supported with evidence. Since evidence is the material with which we build the connection between the conclusions and the experience of the audience, that evidence will be best which will receive the quickest and strongest support from the experience of the hearers.
Asking Questions Like
a Lawyer
https://www.youtube.com/watch?v=7yDJkhIKEbc
https://www.youtube.com/watch?v=ByPJtMjlvyQ&t=398s
https://www.youtube.com/watch?v=ablZkmkRPeQ
Here are one “secret” and three tips I have taken from a lawyer on strategies for asking questions that are applicable in a broad array of circumstances, though he was most concerned with the arena of courts of law.
One Secret:
We (i.e. lawyers when acting as lawyers) are not really asking questions. We are actually making statements that sound like questions. We ask questions that the witness must agree to or look silly. (E.g.: People generally try to avoid things that they believe will cause them pain, don’t they?) If the witness weasels out on that and says something like, “Well, I don’t know.” or “Well some people seek out pain.” they will lose credibility and look suspicious. So, the point of the question here is to chip away at the witness’s credibility.
Three Rules:
1. Have Goals
First of all, lawyers ask questions with a particular goal in mind. They are not seeking information so much as they are asking a question in order to make a point or establish a position. For this reason, it's prudent to avoid open questions that allow the witness to speculate or digress or change the subject. Best to ask targeted questions designed specifically for achieving the goal one has in mind. For instance, if you wish to establish the point that the witness has no alibi say corresponding to the time the crime was committed, first you would want to know in advance that the witness in fact has no alibi. Then you would ask where the witness was or what he was doing at the time of the crime. You would follow that up with whether or not anyone can corroborate the account that the witness provided. You might then further direct the court's attention to the fact that there is evidence which contradicts the witness’s testimony about his whereabouts during the time of the crime. In short, the lawyer is not asking the question, “Where were you at the time of the crime?” because he's curious. The question is targeted to establishing the point or getting testimony in evidence that could later be impugned.
2. Asking leading questions and know what answer the witness is going to give.
Second, lawyers tend to ask leading questions. There is an old adage that a lawyer should never ask a question to which the lawyer does not already know the answer, or at least know what answer the witness is likely to give. You argued with your neighbor about his mailbox in that past, haven’t you? And on those occasions the claimed that his mailbox was on our property and threatened to knock it down if he did not remove it, didn’t you? Can you explain how it came to be that your neighbor’s mailbox was subsequently knocked down?
3. Keep questions short and limit them to one fact question. (Control the witness). Avoid compound questions
Are you the contractor who purchased the sledgehammer at Home Depot on Thursday morning?
If he answers, “No.” you don't know which fact he is denied. Are you a contractor? Did you purchase a sledgehammer? Were you at Home Depot? Was it Thursday. Was it morning? It might be the denial of any one, or all of these conjoint facts. This is why we need to confine ourselves to simple questions which are not compound. (e.g. You are a contractor, aren’t you?)
Natural Law vs
Legal Positivism
Natural law and legal positivism are two schools of thought that have opposing views on the connection between law and morals. Further, they differ as to whether or not “The Law” is a sort-of mind independent thing that we discover (and perhaps come to more and more adequate understanding of) or whether it is an entirely socially constructed affair. Natural law holds the view that law should reflect moral reasoning and should be based on moral order, whereas legal positivism holds that there is no necessary connection between law and morality. These contradictory views regarding law and morals are the key difference between natural law and legal positivism. Note that this is similar to the dispute between realist/essentialists and nominalists with respect to natural kinds which we discussed in our review of definitions. Do we “discover” the law or natural kinds, or is law like common nouns, merely fixed by social-linguistic convention, guided only by pragmatic considerations and social forces?
What is Natural Law?
According to Natural Law Theorists, natural laws derive their validity from morality and reason, and are based on what is believed to serve the best interests of the human person[5] and the common good. It is also important to note that the moral standards that govern human behavior are derived to some extent from the commitment to an inherent nature of the human beings and the nature of the world. In the perspective of natural law, good law is a law that reflects natural moral order through reason and experience. It is also important to understand the word moral here is not used in a religious sense, but it refers to the process of determining what is good and what is right based on reasoning and experience. The history of natural law philosophy can be traced back to Ancient Greece. Philosophers such as Plato, Aristotle, Cicero, Aquinas, Gentili, Suárez, etc. have used this natural law concept in their philosophies.
What is Legal Positivism?
Legal Positivism is an analysis of law developed by legal thinkers such as Jeremy Bentham (1748 – 1832) and John Austin (1790 – 1859). The theoretical foundations of this concept can be traced to the modern developments of British Empiricism and Logical Positivism. This is considered historically as opposing the theory of natural law. Legal Positivism holds that the source of law and sole legitimizer of law is the establishment of that law by some socially recognized legal authority. This is a “disenchantment” of law of sorts, consistent with modernist tendencies generally. It also includes the view that there is no necessary connection between law and moral judgments. Proponents often maintain that moral “judgements” cannot be defended or established by rational arguments or evidence[6]. Legal positivists consider a legitimate law as a law that is enacted by proper legal authorities, following the rules, procedures, and constraints of the legal system.
Note then the different sorts of “logics” these competing
views on the nature of law invoke. One
suggests that law is something to be discovered, and that there is an ideal to
be strived for. The other suggests that
law is to be crafted as a pragmatic response to social problems. More specifically, consider “end of life
questions” and law governing organ harvesting from terminal organ doners for
instance:
Is there a “definition of death”
which we must discover, so as to do adequate justice
to the sanctity of human life?
Or is the question of death something to be decided on pragmatic grounds such that certain definitions are more useful in certain circumstances than others?
[1] Strictly speaking “precedent” and “analogy” in legal reasoning are distinct. Precedent involves an earlier decision being followed in a later case because both cases are “the same.” Analogy involves an earlier decision being followed in a later case because the later case is “similar” to the earlier one. However philosophical problems arise immediately: (1) When should any two distinct cases be considered the ‘same’ for the purposes of precedent? (2) When are two cases admittedly not “the same” but nevertheless ‘similar’ enough for the purposes of analogy? and (3) in both situations, why should the decision in the earlier case affect the decision in the later case? Tempting as these questions are, I will not be pursuing them here and in fact will conflate precedent and analogy for the purposes of these notes.
[2] Stare
decisis is the doctrine that courts will adhere to precedent in making
their decisions. Stare decisis means “to stand by things decided” in
Latin.
[3] In a 1984 case, then-Chief Justice William Rehnquist explained: “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” But the principle is not without its critics. Justice Clarence Thomas for instance has criticized the Court's "typical formulation of the stare decisis standard" for "elevat[ing] demonstrably erroneous decisions...over the text of the Constitution." Others have suggested that the doctrine may create an undue amount of inertia in the legal system, arguing that the body of the law ought to be able to rapidly adapt to social changes and that strict adherence to precedent may delay important legal adaptations.
[4] Justifying a law is most often called for when attempting to enact a new law, determining whether to repeal an existing law. Therefore, it is of most concern when considering statutory law.
[5] Note that natural law often is grounded in a notion an essential human nature directed towards a state of flourishing.
[6] See the notes on Logical Positivism and Emotivism. David Hume (1711-1776) and other insisted that there is a fact/value divide that cannot be bridged. He claimed that one cannot validly deduce an ‘ought’ from an ‘is.’ (“…the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.” Hume, Section 1 Treatise of Human Nature. p. 469-470) That is, no amount of reason and facts about how the world “is” can tell us how the world “ought” to be, or vise versa.