Legal syllogism
Legal syllogism is a legal concept concerning the law and its application, specifically a form of argument based on deductive reasoning and seeking to establish whether a specified act is lawful.[1]
A syllogism is a form of logical reasoning that hinges on a question, a major premise, a minor premise and a conclusion. If properly plead, every legal action seeking redress of a wrong or enforcement of a right is "a syllogism of which the major premise is the proposition of law involved, the minor premise is the proposition of fact, and the judgment the conclusion."[2][3] More broadly, many sources suggest that every good legal argument is cast in the form of a syllogism.[3][4][5]
Fundamentally, the syllogism may be reduced to a three step process: 1. "law finding", 2. "fact finding", and 3."law applying." See Holding (law). That protocol presupposes someone has done "law making" already.[3] This model is sufficiently broad so that it may be applied in many different nations and legal systems.[3]
In legal theoretic literature, legal syllogism is controversial. It is treated as equivalent to an “interpretational decision.”[6]
See also
[edit]- Syllogism
- Case-based reasoning
- Deductive reasoning
- Type of syllogism (disjunctive, hypothetical, legal, poly-, prosleptic, quasi-, statistical)
References
[edit]- ^ Gold, Michael Evan (October 15, 2018). A Primer on Legal Reasoning. Ithaca, New York: Cornell University Press. pp. 82–84. ISBN 9781501728617.
- ^ Lamphear v. Buckingham, 33 Conn. 237, 248 (Conn. 1866).
- ^ a b c d Maxeiner, James R. (August 29, 2011). Failures of American Civil Justice in International Perspective. Cambridge University Press. p. 15. ISBN 9781139504898.
- ^ Gardner, James A. (June 1, 2007). Legal Argument: The Structure and Language of Effective Advocacy. Newark, New Jersey: LexisNexis. pp. 27–28. ISBN 9781422418208.
- ^ MacCormick, Neil (January 2010) [2005]. "3". Rhetoric and The Rule of Law: A Theory of Legal Reasoning. Oxford Scholarship Online. doi:10.1093/acprof:oso/9780199571246.001.0001. ISBN 9780199571246.
- ^ Stelmach, Jerzy; Brozek, Bartosz (3 September 2006). Methods of Legal Reasoning. Dordrecht: Springer. p. 27. ISBN 9781402049392.