THINKING LIKE A LAWYER
Introduction
From the very first day of your law school experience, professors in every course will challenge you daily with stern admonitions that you are expected to learn how to “think like a lawyer!” You will expend considerable amounts of time, effort, and energy throughout the next several years of your law career, both in the classroom and in personal study, trying to acquire this skill. Every professor, as well as every lawyer and judge that you will likely encounter, is quite capable of recognizing this unique skill when it is demonstrated on a written examination answer, or in a brief or appellate opinion, or when they hear it applied orally in a classroom response or before a court. However, few lawyers are actually able to articulate a precise definition of this very elusive concept, or to describe a set of specific criteria that can be applied as a “test” in determining whether any given argument is suitably ”lawyer-like.” Indeed, for many attorneys the answer to this question is frequently summarized in words similar to those penned by Justice Stevens who, writing a concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), responded to the Supreme Court’s refusal to precisely define what he characterized as an “indefinable” term such as “pornography” by explaining that: “perhaps I could never succeed in intelligibly doing so. But I know it when I see it….” Unfortunately, responses like this do not inspire great confidence for the beginning law student to actually master this important skill, nor do they offer much practical advice as to just how the process of “thinking like a lawyer” actually works. The purpose of this series of exercises is to provide some tangible set of criteria that can be used to aid in the development of this unique, but quite necessary, skill.
Types of Legal Reasoning
Despite the overwhelming array of seemingly inconsistent court opinions, statutes, regulations and other rules that collectively make up our body of modern “law,” much of this law can be harmonized and understood surprisingly well when approached from a logical perspective. The process of doing so is often referred to as “legal reasoning.” When properly understood and applied within the framework of legal analysis, legal reasoning is, in fact, very logical. This first exercise will describe a particular analytical process known as “deductive reasoning” that forms the basis for most good legal analysis.
Logical analysis is a process that comes naturally to the human mind. Although most of us routinely do not consciously organize each distinct thought into neat little mental compartments from which we then construct carefully articulated arguments, this very process is still much more familiar to most of us than we realize. From our earliest childhood experiences we intuitively have attempted to construct “logical” arguments.
“Mommy, Johnny’s parents got him a pony. I want a pony, too!”
Of course, the formal logic in this plaintiff request is definitely flawed (which in part explains why you never got that pony), but the basic structure of the logic is nevertheless present. As you got older, you became more adept at structuring your arguments.
“Dad, Johnny’s father bought him a new car. You make as much money as Johnny’s father, so you should buy me a new car also.”
The logic of this argument is definitely better (as evidenced by the fact that some of you may actually have convinced your parents to buy you that new car), but it is still flawed. It fails to identify and develop the major premise from which the conclusion is logically derived.
In this exercise, our first goal is to learn what specific components must be present in order to construct a valid logical argument. The particular method of reasoning that we will study in this exercise is known as a syllogism. Simply stated, a syllogism is a term that describes a particular logical relationship between two arguments. It consists of three specific parts:
(1) The major premise (a broad statement of general applicability);
(2) The minor premise (a narrower statement of particular applicability that relates to the major premise); and
(3) The conclusion (a statement that follows logically from and is consistent with both the major and minor premises).
To illustrate how a logical syllogism argument is constructed, consider the following classic example:
(1) All men are mortal.
(2) Socrates is a man.
(3) Therefore, Socrates is mortal.
In this example, the major premise is set forth in the first statement. It is a broad statement, that relates generally to ALL men (i.e., it asserts that all men are mortal). The second statement is the minor premise. It asserts very narrowly and specifically only that SOCRATES is a man. It says nothing about other men in general. Thus, as compared to the major premise it is far more specific, since it applies ONLY to one particular man, Socrates, and not to the broader class of ALL men. Notice, however, that both the major and the minor premises do have ONE common term. They both relate to man, or men. Since both the major and the minor premises are related by this common term, the conclusion set forth in the third statement is therefore logically consistent.
This basic form of syllogism provides an excellent example of deductive reasoning. In deductive reasoning, both the major premise and the minor premise are worded in such a way that the conclusion naturally and logically derives from combining a general statement with a more particular statement in reference to the same common terms. A conclusion that has been reached through this process of deductive reasoning is quite compelling in its simple logic.
Applying this same form of deductive reasoning to our earlier examples, we now can produce the following logical argument:
(1) Every parent of a teenage driver in my class has provided a new car for their teenager to drive.
(2) You are the parent(s) of a teenage driver in my class (i.e., me).
(3) Therefore, you will (or at least should) provide a new car for me to drive.
What parent(s) could resist such beautiful logic? And what student hasn’t already mastered the intricacies of carefully articulating the precise content of such major and minor premise statements long before entering law school? In fact, whether we realize it or not, most of us are already quite familiar with the basic concept of deductive reasoning. We have already learned how to use and to apply it successfully in numerous situations throughout our everyday lives, and we do this without even consciously ever thinking about it.
(1) One dollar will buy three candy bars.
(2) I have one dollar.
(3) Therefore, I can buy three candy bars.
(1) All cars need gasoline to run.
(2) I have a car.
(3) Therefore, my car needs gasoline to run.
(1) All students who score “95” or higher on their History exam will get an “A.”
(2) I scored a “95” on my History exam.
(3) Therefore, I will get an “A.”
Each of these syllogisms utilizes simple deductive reasoning. Anyone wishing to successfully challenge a conclusion that has been deductively reasoned in this manner must do so by attacking either the major or the minor premise (or both) from which the conclusion is derived. If both of the underlying premises withstand attack, the conclusion, itself, is logically inescapable.
Most of us routinely apply this type of “logic” in countless ways each and every day of our lives. As you begin your formal study of the law, all you really need now is just to gain a clearer understanding of precisely how this process of deductive reasoning actually works within the context of a legal argument. Then, you can apply it intentionally to specific legal arguments as you focus more purposefully on learning how to “think like a lawyer.”
Apart from legal analysis, the process of deductive reasoning is used extensively in many other specific disciplines. Most commonly, you may be familiar with this process as it is used in science and in mathematics.
(1) A equals B.
(2) B equals C.
(3) Therefore, A equals C.
Known in mathematical terms as the principle of transitivity, this doctrine states simply that if two different things (i.e., A and C) are equal to the same thing (i.e., B), then those two different things MUST ALSO be equal to each other. (i.e., A = C). In mathematics (and to a somewhat lesser extent science in general) conclusions deductively derived from a syllogism are absolutely true, because both the major and minor premises upon which they were based are also absolutely true (e.g., 2 + 2 is ALWAYS equal to 4). That’s why mathematics is often referred to as an EXACT science. In the law, however, there are very few absolute truths. Thus, any major or minor premises that we formulate from less than absolute legal principles are still potentially subject to challenge. To illustrate this notion, consider the following logical syllogism:
(1) All attorneys are honest.
(2) Mary is an attorney.
(3) Therefore, Mary is honest.
As with all properly constructed syllogisms, the analysis here is logically flawless. Structurally, this syllogism accurately fits our basic pattern for internal consistency. However, if all we know about Mary is that she is an attorney, we are reluctant to accept its ultimate conclusion that “Mary is” also “honest.” Why? Logically, we know that the conclusion MUST be true (because we have deduced it from a proper syllogism); yet, we have little confidence that it is in fact absolutely true in this case. The answer here is simple. Unlike the classic mathematical syllogism that is derived from absolute truths (as stated by the major and minor premises), legal syllogisms are not based upon absolute truths.
Conclusions reached by legal deductive reasoning from these less-than-absolute premises can only be as good as both the major and minor premises upon which they are based. If EITHER the major or the minor premise from which our syllogism’s conclusion is derived turns out to be FALSE, then the conclusion will also be false. In this example, sadly most of us know from our own experiences in life that the major premise (i.e., “all attorneys are honest”) is in fact not absolutely true. Thus, even though our syllogism is structurally accurate, we cannot accept its conclusion as true, because we know that one of the premises (in this case, the major premise) is clearly false.
In most instances, legal reasoning, even when derived deductively, does not express absolute truths. Instead, legal reasoning deals mostly with propositions that are more likely true than not. The more likely true that both the major and the minor premises are, the more likely that the syllogistic conclusion derived from them will also be true. Thus, even though they are not based upon absolute truths, proper legal arguments based upon sound deductive reasoning still tend to be among the most persuasive types of arguments that can be made in the law.
Applying this concept to our preceding example, we can produce the following syllogism:
(1) MOST attorneys are honest.
(2) Mary is an attorney.
(3) Therefore, Mary is MORE LIKELY THAN NOT honest.
This conclusion is much more likely to be accepted as true, even though it is not absolute.
To properly apply the process of deductive reasoning to legal analysis, we must carefully understand the techniques by which the major and minor premises are constructed. In a typical legal argument the major premise states a general proposition of law, and the minor premise then applies that same legal proposition to some particular circumstance unique to the individual case at issue. The results of such a legal syllogism argument typically resemble one of the following simple examples:
(1) A valid contract must be supported by some consideration between the parties (major premise statement).
(2) The contract between Bob and Sam was not supported by any consideration (minor premise statement).
(3) Therefore, the contract between Bob and Sam was not valid (conclusion).
(1) A conviction for first-degree murder requires that the Defendant act with premeditation (major premise statement).
(2) There is no evidence that Defendant acted with any premeditation (minor premise statement).
(3) Therefore, Defendant cannot be convicted of first-degree murder (conclusion).
Now that you know what a logical syllogism is, let’s look a little more closely at how they are constructed. Logicians have developed six fairly basic rules for constructing valid syllogisms. Although they may be stated in many different ways, essentially they are as follows:
Rule 1: All syllogisms must contain three terms: a major term, a minor term and a transitory (or middle) term.
Rule 2: The transitory term must be “distributed” in at least one premise (either the major premise or the minor premise).
Rule 3: The conclusion cannot contain any term that is not “distributed” in at least one premise (either the major premise or the minor premise).
Rule 4: A syllogism cannot contain two negative premises.
Rule 5: If either premise in a syllogism is negative, the conclusion must also be negative.
Rule 6: A syllogism with two universal premises (both the major premise and the minor premise) cannot have a particular conclusion.
Rule 1: All syllogisms must contain three terms: a major term, a minor term and a transitory (or middle) term.
Any argument that uses more than three terms lacks a proper basis for comparing the major and the minor terms. Thus, if there are more than three terms in the argument there can be no single transitory (i.e., middle) term to logically connect the two remaining major and minor terms. To illustrate Rule 1, consider the following argument:
(1) All men are mortal (major term).
(2) Socrates (minor term) is a Greek.
Even though both the major premise and the minor premise are true, there is no way to logically connect the two statements together. There is no single “middle” term. In this example it could be “mortal” (used in statement 1) or it could be “Greek” (used in statement 2). Without a single connecting term, there is not any way to logically construct a single, unifying syllogism.
One way to fix this problem would be to construct two separate, but related, syllogisms, as in the following illustration:
Syllogism 1:
(1) All men are mortal (major term).
(2) All Greeks (minor term) are men.
(3) Therefore, all Greeks are mortal.
The conclusion in Syllogism 1 is derived from the unifying middle term, “men,” that is contained in both the major and the minor premise statements.
Syllogism 2 starts with the conclusion deduced from Syllogism 1:
(1) All Greeks are mortal (major term).
(2) Socrates (the minor term) is a Greek.
(3) Therefore, Socrates is mortal.
The conclusion in Syllogism 2 is derived from a different unifying middle term, “Greek(s),” that is contained in both the major and the minor premise statements.
Depending upon what you were trying to prove (i.e., either that “all Greeks are mortal,” or that “Socrates is mortal”) only one of these arguments would be appropriate, and not the other. Moreover, notice that both Syllogisms are logically valid because they each do contain three, but only three, terms.
Rule 2: The transitory term must be “distributed” (i.e., universal) in at least one premise (either the major premise or the minor premise).
Under this Rule, the middle term must describe the entire class contained within either the major premise or the minor premise. Otherwise, each term in the conclusion could be connected to some different part of the class that was not included within the premise statement, thus preventing the conclusion from stating a categorical truth. To illustrate this concept, consider the following example:
(1) All Greeks (major term) are men (transitory term).
(2) All Persians (minor term) are men (transitory term).
(3) Therefore, all Greeks are Persians.
Here, although both the major and the minor premises are true, the conclusion is obviously not valid. The reason for this is that the transitory term (men) as used in BOTH premise statements is NOT universal. The transitory term (men) is not “distributed” in either premise statement. That is, in this example neither the major nor the minor premise encompasses the entire class of men. Thus, Rule 2 is violated because both premise statements describe something less than the full class of men. Any logical comparison between only partial classes (i.e., the class of all Greeks and the separate class of all Persians) cannot produce a categorically valid conclusion as to the entire class (of all men).
Rule 3: The conclusion cannot contain any term that is not “distributed” in at least one premise (either the major premise or the minor premise).
As we have just seen from Rule 2, a term is “distributed” when it refers to every member in its entire class. To be logically valid an argument cannot contain a distributed conclusion (e.g., “all,” “every”) that is derived from a non-distributed major or minor premise (e.g., “some,” “many”). The reverse of this rule is also true.
An example of this Rule is illustrated by the following syllogism:
(1) Law students who lack good reasoning skills (major term) should study logic.
(2) Many law students (minor term) lack good reasoning skills.
(3) Therefore, ALL law students should study logic.
Statement 1 (referring to “law students who lack good reasoning skills”) is not a universal (i.e., “distributed”) statement, since there may be law students who do have good reasoning skills. Likewise, Statement 2 (referring to “many law students”) is obviously also not a universal statement. Thus, the conclusion is invalid because it not distributed in either the major or the minor premises, yet it is distributed in the conclusion.
Rule 4: A syllogism cannot contain two negative premises.
Intuitively, most of you are already familiar with this Rule. Since your earliest days most of you have been taught that “two wrongs don’t make a right!” This is nothing more than a simple truism that has been derived by application of the logic principle stated in this Rule. Consider the following example:
1. No man is a mother. (negative major premise)
2. My mother is not my father. (negative minor premise)
3. No man is my father. (conclusion)
Even though both the major and the minor premise statements are true, the conclusion is completely nonsensical. That is because this syllogism violates Rule 4: it contains two negative premise statements. No valid logical conclusion can be derived from two negative premises. Of course, any logical syllogism can certainly have one negative premise statement (either a major premise or a minor premise), just not both.
Rule 5: If either premise in
a syllogism is negative, the conclusion must also be negative.
This Rule is simply a logical extension of Rule 4. If any syllogism has one negative premise (a result that is clearly permitted by Rule 4), then its conclusion MUST also be negative. Consider the following example:
1. No man is immortal. (major premise)
2. Socrates is a man. (minor premise)
3. Socrates is not immortal. (conclusion)
Because one of the premises in this syllogism is negative (i.e., in this case, the major premise), the conclusion must also be negative.
Rule 6: A syllogism with two universal premises (both the major premise
and the minor premise) cannot have a particular conclusion.
Since the argument expressed by logical syllogisms typically progresses from a broad (i.e., “universal”) statement to a narrower, more specific (i.e., “particular”) statement, it is essential that such a logical syllogism contain both a universal and a particular premise, if a particular conclusion is the desired result. Any other combination of statements, even if their individual premises are otherwise accurate, does not fit within the structure for a valid logical syllogism. Stated somewhat differently, although a valid syllogism can certainly contain two universal premises (in both the major and the minor premises), if such is the case the conclusion must also be stated in universal terms.
Consider the following illustration:
1. All mortals eventually will die. (universal major premise)
2. All Greeks are mortal. (universal minor premise)
3. All Greeks eventually will die. (universal conclusion)
This conclusion is perfectly valid, since it, like both the major and minor premises from which it is derived, is expressed in universal terms. However, if we change the universal term “all Greeks” in the conclusion to “this Greek,” making it a particular conclusion, the logic fails. It may in fact be true that “This Greek eventually will die,” but such a conclusion cannot be logically derived from this syllogism. The use of universal terms in both the major and the minor premise statements requires that the conclusion also be stated in universal terms.
2. Inductive Deduction
Another form of logical analysis is known as inductive reasoning (compare with argument by analogy, infra). Unlike deductive reasoning which derives its conclusion by reasoning from the major (i.e., general) premise to the minor (i.e., particular) premise, inductive reasoning reaches its conclusion in just the opposite manner. Inductive reasoning works by asserting a series of minor (i.e., particular) premises to support the conclusion, a major (i.e., general or universal) premise. As with deductive reasoning, legal conclusions reached by inductive reasoning are not absolute. At best they may only be used to establish more likely than not the truth of the fact(s) of the stated conclusion.
To see how inductive reasoning compares with deductive reasoning, consider the following example:
(1) A’s oral conveyance of land in Case A is invalid. (a minor premise)
(2) B’s oral conveyance of land in Case B is invalid. (a minor premise)
(3) C’s oral conveyance of land in Case C is invalid. (a minor premise)
*
*
*
(26) Z’s oral conveyance of land in Case Z is invalid. (a minor premise) CONCLUSION: Therefore, ALL oral conveyances of land are invalid. (a major, universal premise).
The analytical basis for this general conclusion is that since twenty-six factually similar (i.e., particular) instances of oral conveyances of land have all been invalid, a general conclusion may be made that all future such conveyances will also be invalid. Hence, inductive reasoning allows the broad conclusion (a major, universal premise statement) to be inferred that “ALL oral conveyances of land are invalid.”
Of course, such generalized conclusions are only as good as the particular information from which they are derived. Certainly, at least from a statistical point of view, the greater the number of individual instances that are examined before a general conclusion is reached, the more reliable the ultimate conclusion. However, within the context of legal analysis, absolute certainty is almost never attained through inductive reasoning.
For example, what if in the preceding example a twenty-seventh case, Case AA, was discovered in which an oral conveyance of land was found by the court to be VALID? The previous absolute conclusion arrived at inductively is no longer accurate. It must now be modified in some manner: “Almost all oral conveyances of land are invalid” or “All oral conveyance of land are invalid, except in Case AA.”
Inductive reasoning underlies much of the common law system of case analysis. Lawyers and judges (and law students) analyze numerous individual cases, and then they attempt to derive broad, generalized statements (or rules) of law that explain those cases.
One of the greatest dangers inherent in relying upon argument by inductive reasoning is the tendency to reach a general conclusion too quickly. Often referred to as “jumping to a conclusion,” this hazard is particularly common among beginning law students. Consider the following conclusion derived through the process of inductive reasoning:
(1) In Case A, the court held that an oral conveyance of land was invalid. (a minor premise).
(2) In Case B, the court held that an oral conveyance of personalty was invalid. (a minor premise).
Conclusion: Therefore, ALL oral conveyances are invalid. (a major premise).
After reading a few more cases involving oral conveyances of both real and personal property, the student would likely discover that not ALL oral conveyances of personalty are invalid, although most (if not all) conveyances of land are invalid. The conclusion to which this student “jumped” was much too broad. It was not supported by the case law. Had the student been less hasty in reaching this conclusion, and taken time to examine more cases that addressed the question of oral conveyances of all types of property, this mistaken conclusion would not have occurred. However, the problem in this example is not with the inductive reasoning that was used; it is with the limited number of cases that were examined.
Another form of inductive reasoning is known as reasoning by analogy. Basically, an analogy is a statement of a logical relationship between two similar things that are compared with each other. An argument by analogy is presented in the form of “A is like B,” or “X is similar to Y.”
Consider the following simple question: “Is an apple more like an orange or a banana?” Although everyone probably knows the differences between these three types of fruit, just how would we go about making a valid analytical comparison of them? Analogical reasoning seeks to identify specific sets of similar and dissimilar characteristics, in search of some unique combination of characteristics that can then be used to define distinctive properties of each set.
In this example, we will first try and identify as many different similarities and distinctions among these three items as possible. To begin with, all three items are edible fruits. They all contain seeds inside their fleshy fruit part. In two of these fruits (the apple and the orange) the seeds are NOT generally eaten at all, but in the third fruit (the banana), the seeds are so tiny that they are normally eaten along with the fruit itself. Color is probably not a particularly good characteristic to use in distinguishing these fruits. Although the color of ripe oranges and bananas is usually quite distinctive, ripe apples typically range from green to yellow to red and even orange. Both apples and oranges are typically round in shape, whereas bananas are never rounded; instead, they are more elongated in shape. The outer skin of oranges and bananas can be peeled away from the inner flesh of the fruit without the aid of a knife, but the outer skin of an apple can only be removed with the aid of a knife or some other sharp object. The outer skin of apples is sometimes eaten along with the fruit (but not the apple seeds), whereas the outer skin of both bananas and oranges is never eaten. Finally, oranges are a member of the citrus family of fruits, whereas apples and bananas are not.
To more easily understand these various distinctions, we can incorporate the results of our analysis into the following chart:
Apple Orange Banana
|
|
|
|
|
|
Edible seeds |
NO |
NO |
YES |
|
Shape |
Round |
Round |
Oblong |
|
Edible skin |
YES |
NO |
NO |
|
Peelable without a knife |
NO |
YES |
YES |
|
Citrus family |
NO |
YES |
NO |
|
Color when ripe |
Red, orange, yellow, green |
Orange only |
Yellow only |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In making our final comparison, we then attempt to determine in which of these categories apples and oranges are most alike (i.e., similar). Of all the categories that we have compared, apples and oranges are similar only in that they are both generally round in shape and their seeds are not edible. In all other categories of our comparison, apples and oranges are dissimilar.
Comparing oranges with bananas, we find once again that these two fruits are similar in only two of the categories that we examined (i.e., they are both peelable without the aid of a knife and they both have inedible skin). Finally, comparing apples to bananas reveals only one similar characteristic between these two fruits: neither belongs to the “citrus” family.
In this example, the final category, “color,” is not useful for any meaningful comparison, so we will not consider it any further. Reasoning by analogy, we thus can conclude that an apple is more like an orange than a banana as to its overall shape and the fact that its seeds are inedible (like those of an orange). Likewise, an apple is more like a banana only in the fact that both of these fruits are not members of the citrus family of fruits.
Remember the original question: “Is an apple more like an orange or a banana?” Reasoning by analogy we can only conclude: “It depends!” Specifically, our answer to this question depends entirely upon which set of criteria we are using to make our comparisons.
The foregoing example is illustrative of a very important aspect of any legal reasoning that is made by analogy: the relative degree of similarity between two things is entirely dependent upon what specific category of data the comparison is based upon. Comparing apples, oranges, and bananas can produce entirely different results that are not dependent upon the individual items compared, but upon the specific categories that we select for making those comparisons. This unique feature of reasoning by analogy makes this form of argument particularly well suited for legal analysis because it can be asserted to prove (or to disprove) almost any given set of comparisons. However, it also makes this form of argument far less reliable than the traditional logical syllogism argument or even than an argument based upon deductive reasoning.
Continuing with our fruit example, suppose that in your jurisdiction (State X) there is a statute (i.e., Statute 101) that prohibits “the transport of oranges and similar fruits into the State of X.” You have been contacted by an apple grower who wants to ship a large order of apples into State X, but he is concerned about violating this statutory prohibition which is punishable by payment of a large fine for each violation. After researching the law, you find a second statute (Statute 202), also from State X, that expressly permits “bananas and similar fruits” to be imported into State X. To answer your client’s legal question, you are now faced with the very problem that we have been considering in our fruit example: “Is an apple more like an orange or a banana?” Reasoning by analogy what specific argument would you make on behalf of the apple grower?
Based upon our previous analogical analysis, you first focus upon the meaning of the phrase “and similar fruits” that is used in BOTH statutes. This phrase is the common term that will be used as a bridge for your deductive syllogism argument. The only basis for making a favorable comparison between apples and bananas would be to assert that neither fruit is a member of the citrus family. Your syllogism might look like this:
(1) Statute 101 prohibits the shipping of ALL “oranges and similar fruit” into State X.
(2) Apples and oranges are NOT similar fruit, because oranges are citrus fruits and apples are not.
(3) Therefore, Statute 101 does NOT prohibit the shipping of apples into State X.
By contrast, attorneys for State X would argue that since apples and oranges are both round and both contain inedible seeds, they are “similar fruits” and thus prohibited by the very same statute (i.e., Statute 101). The State’s syllogism argument might look like this:
(1) Statute 101 prohibits the shipping of ALL “oranges and similar fruit” into State X.
(2) Apples and oranges ARE “similar fruits,” because they are both round and they both contain inedible seeds.
(3) Therefore, Statute 101 prohibits the shipping of apples into State X.
BOTH of these arguments are logically sound. Both are also supported by facts that have been reasoned by analogy with reference to the meaning of the statutory phrase “and similar fruit.” Still, only one of these very opposite conclusions can be right. The other conclusion is wrong, even though both arguments are based upon sound analogies. How do we determine which analogy should be applied?
This example illustrates the major obstacle to legal analysis that is presented by the use of reasoning solely by analogy. In legal analysis, arguments by analogy look for specific similarities (or dissimilarities) between ANY two things that are being compared with each other. Care must be taken, however, in selecting and articulating which specific individual criteria form the basis for making a LEGALLY RELEVANT comparison. Arguments by analogy do not attempt to declare general conclusions. They only seek to establish the comparative identity (by analogy) of individual facts or circumstances. The attorneys, and the courts, must determine which of all possible criteria that might be compared in a given circumstance are most appropriate. These criteria are said to be the ones that are legally relevant. All other criteria, although useful for making other comparisons in other cases, are unimportant to the case at hand. However, they are NOT legally relevant.
Conclusions reached by analogical reasoning, unlike those based upon inductive reasoning, are not supported by a commonality of similar experiences in similar situations; instead, they are based upon the degree to which one individual circumstance or result is similar (or dissimilar) to another. If two different things are only partially similar, then the comparison between them can only be partially accurate. The greater the number of materially relevant points of similarity that can be described between two different things, the greater the effectiveness of the resulting comparison. This can be illustrated in the following manner:
(1) Facts A, B, and C all produce the same legal consequence, X.
(2) Facts A and B also produce a different legal consequence, Y.
(3) Therefore (reasoning by analogy) Fact C PROBABLY will also produce the legal consequence, Y.
There is nothing in this argument that says anything specifically about the relationship between Fact C and legal consequence Y. Our conclusion about legal consequence Y is derived only by Fact C’s analogy with Facts A and B in situations that produce an entirely different legal consequence, X. Any conclusion that we might derive from Fact C’s similarity with Facts A and B, and their relationships with legal consequence X, may or may not have the same relationship to legal consequence Y, the thing that we actually want to establish in our conclusion. For this reason, arguments by analogy may be helpful in establishing the validity of a particular legal premise (e.g., that Fact C probably will produce legal consequence Y), but such arguments, by themselves, generally cannot produce the same level of confidence as a true legal syllogism would.
Ultimately, our confidence in the accuracy of the conclusion that “Fact C PROBABLY will produce the legal consequence, Y” is in part based upon the number of similar points of comparison that we can make between Fact C and Facts A and B. Thus, if we are able to find other similarities between these same Facts, then our confidence in this specific conclusion would be greater.
To illustrate the relationship between an argument by analogy and a deductive syllogism within the context of an actual legal argument, consider the following example:
(1) A Battery may be simply defined as the intentional, nonconsensual contact with the person of another that is either harmful or offensive.
(2) Defendant intentionally and without consent struck the Plaintiff’s pet puppy with a stick, causing harm to the puppy.
Has the Defendant committed a Battery? The answer to this question is uncertain. We cannot construct a syllogism because we do not have any two terms in either the major or the minor premise that are equivalent with each other. In other words, there are no transitive terms that logically bridge or connect the major and minor premises. Specifically, in this example, we have the term “the person” in the major premise, and a completely different term, “the puppy,” in the minor premise. What we need to know is whether these two terms “person” and “puppy” may be treated as equivalents for purposes of applying the syllogism. This is where the argument by analogy may be helpful in resolving this question.
We begin by looking for Battery cases involving puppies. Unable to find such a case, however, we do find several other cases that we will use to construct our argument by analogy.
Case A: The court upheld a Battery action on behalf of a person who was struck and injured by a stick that was intentionally swung by the defendant without the victim’s consent.
Case B: The court refused to permit a Battery action against a defendant who intentionally and without consent threw a rock and struck the plaintiff’s dog, injuring the dog.
We first reason by analogy, comparing the two different cases. Cases A and B BOTH involve actions for Battery, although the offending agent in Case A was a stick, whereas Case B involved a rock. Initially, we conclude that for purposes of a Battery there is probably no legally significant difference between a stick and a rock, so we look for some other reason to explain the different results in these two cases. Analogical legal reasoning seeks to determine whether the “puppy” in our case is more like the “person” in Case A or the “dog” in Case B. Comparing Case A with Case B, we conclude by analogy that a puppy is MORE LIKE the “dog” in Case B than the “person” in Case A. But how does this help us construct our syllogism?
We are still no closer to answering our initial question than we were before. Even after concluding by analogy that the “puppy” in our case is more like the “dog” in Case B than the “person” in Case A, we still do not have an answer to the question of whether the Defendant in our case has committed a Battery or not. All we know from our reasoning by analogy is that intentionally striking the “dog” in Case B was not a Battery, whereas the intentional striking of the “person” in Case A was a Battery. Again reasoning by analogy, we might further conclude that a “puppy” is NOT a “person,” at least for purposes of imposing liability for a Battery. This conclusion is a little more useful than our first conclusion, but by itself it still does not answer our question: has the Defendant in our case committed a Battery? To do this we must return to our original syllogism. However, this time we can substitute the new information that we have determined by analogical reasoning from our analysis of Cases A and B:
(1) A Battery may be simply defined as the intentional, nonconsensual contact with the person of another that is either harmful or offensive.
(2) Defendant intentionally and without consent struck the Plaintiff’s pet puppy (which is NOT a person) with a stick, causing harm to the puppy.
(3) Therefore, Defendant has NOT committed a Battery.
Just as always, our ultimate conclusion was attained deductively through application of a typical logical syllogism argument. However, we reasoned by analogy to help us compare the equivalency of two different terms (i.e., person and puppy) that were initially contained within the major and the minor premises. Without the aid of this type of reasoning, we could not have completed our logical syllogism because the terms in the major and minor premises were so completely dissimilar (i.e., puppies cannot be compared with people). Thus, we used reasoning by analogy as an AID to developing premise statements that were similar; these statements were then used to construct our logical syllogism argument. Despite the usefulness of reasoning by analogy, it must be observed that analogical reasoning, by itself, is NEVER a proper substitute for syllogistic argument. It is merely one of many tools that may aid in the development of such an argument.