Legal Reasoning

Critical Thinking and Logic in Formulating

Arguments and Reasons for Decision

October 4, 2010
Tim Martiniuk, Legal Counsel
Workers‟ Compensation Appeal Tribunal
“Logic is the anatomy of reason”

- John Locke (1632 – 1704)

“Logic is a systematic method of coming to
the wrong conclusion with confidence.”

- Anonymous?
 Resources
► Introduction to Logic, by Irving Copi and Carl Cohen (13th
ed.) (2007)

► Logic for Lawyers : A Guide to Clear Legal Thinking, by

Ruggero J Aldisert (3rd edition (1997))
 What is Legal Reasoning?
► Legal reasoning is reasoning about the
requirements and application of the law
► Sir Edward Coke (1607): “the common law itself is
nothing else but reason; which is understood of an
artificial perfection of reason, gotten by long
study, observation, and experience, and not of
every man‟s natural reason”.
► In contrast, the modern, but not universal, view is
that legal reasoning is not a special kind of
reasoning at all but rather ordinary reason
(deductive and inductive) applied to legal
problems.
► Therefore, the act of legal reasoning, like any
reasoning, involves both the construction and
analysis of logical arguments.

► Advocates and decision makers are both argument

makers and argument readers. Understanding the
nature of a good and bad argument benefits both
the argument writer and the argument reader.
 Limits to Application of Logic
► Legal decisions cannot always be reduced to an application
of logic.
► Oliver Wendell Holmes in The Common Law (1881) said
with respect to the development of the common law:
 “The life of the law has not been logic: it has been
experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of
public policy, avowed or unconscious, even the
prejudices which judges share with their fellow-men,
have had a good deal more to do than the syllogism in
determining the rules by which men should be
governed.”
► “Logicis a large drawer, containing some
useful instruments, and many more that are
superfluous. A wise man will look into it for
two purposes, to avail himself of those
instruments that are really useful, and to
admire the ingenuity with which those that
are not so, are assorted and arranged”
 Charles Caleb Colton, Lacon (1780-1832 –
British author and clergyman).
What is an Argument?
► “Anargument is not the same as
contradiction. It is a connected series of
statements to establish a definite
proposition ... Argument is an intellectual
process. Contradiction is just the automatic
gainsaying of anything the other person
said”
 Monty Python‟s Argument Clinic
 What is an Argument?
► In logic, an argument is a set of one or more
declarative sentences (or "propositions") known
as the premises along with another declarative
sentence (or "proposition") known as the
conclusion.
► A deductive argument asserts that the truth of
the conclusion is a logical consequence of the
premises; an inductive argument asserts that the
truth of the conclusion is supported by the
premises.
► Most reasoning is a combination of deductive and
inductive reasoning. Often we begin with
inductive reasoning and then use the inductive
conclusions as premises of deductive arguments.
► In the common law, inductive reasoning usually
dominates the first stage of law making where
cases are compared and their resemblances and
differences are noted and a legal precept is
created. Deductive reasoning is used in refining
the created precept and in applying it to the facts
before the court.
 Fallacies of Reasoning

It would be a very good thing if every trick could

receive some short and obviously appropriate
name, so that when anyone used this or that
particular trick, he could at once be reproved for
it.

- Arthur Schopenhauer
►A fallacy is not any mistaken inference or false
belief but rather a typical error of reasoning
► Each fallacy is a type of incorrect argument
► Itis customary to reserve the term fallacy for
arguments that, although incorrect, are
psychologically persuasive.
► Unlike obviously incorrect arguments, fallacies are
dangerous because most us are, at one time or
another, fooled by some of them.
► Fallacies can be formal or informal.
► A formal fallacy is a pattern of reasoning
which is always wrong. This is due to a
flaw in the structure of the argument.
► An informal fallacy may have a logical
form but is false due to the characteristics
of its premises or their justification.
 Formal Fallacies
► Fallacy of Four Terms
► Fallacy of the Undistributed Middle
► Fallacy of the Illicit Process of the Major and Minor
Term
► Fallacy of Negative Premises
► Fallacy of Affirming the Consequent
► Fallacy of Denying the Antecedent
► Fallacy of Missing Disjuncts
► Fallacy of Non-exclusivity
 Informal Fallacies
► Fallacies of Relevance (Distraction):
 When an argument relies on premises that are not
relevant to its conclusion, and that therefore cannot
possibly establish its truth, the fallacy committed is one
of relevance.
►Fallacy of Irrelevance
►Appeal to Inappropriate Authority
►Appeal to Pity
►Appeal to Personal Ridicule
►Appeal to Ignorance
► Fallacies of Ambiguity (Linguistic Fallacies)
 Arguments sometimes fail because their
formulation contains ambiguous words or
phrases, whose meanings shift and change
within the course of the argument, thus
rendering it fallacious.
►Equivocation
►Amphiboly (ambiguous due to grammatical
construction)
►Accent
►Composition
►Division
► Miscellaneous Informal Fallacies

 Fallacy of Accident
 Hasty Generalization
 False Cause
 Non Sequitur
 Compound (Complex) Question
 Begging the Question
 Deductive Reasoning
►A valid argument requires that each premise and
the conclusion are only either true or false, not
ambiguous.
► The sentences composing an argument are
referred to as being either true or false, not as
being valid or invalid; arguments are referred to
as being valid or invalid, not as being true or false.
► An argument can be valid and the conclusion
false. An argument can be invalid and the
conclusion true.
► An argument is “sound” when the argument is
valid and the premises are true.
 Syllogisms
► In a deductive argument, form is what makes an
argument valid.
► The “syllogism” is at the core of deductive
reasoning (or at least syllogistic logic)
► In Prior Analytics Aristotle defined “syllogism”
broadly as:
"a discourse in which, certain things having been
supposed, something different from the things supposed
results of necessity because these things are so."
“I mean by the last phrase that they produce the
consequence, and by this, that no further term is required
from without to make the consequence necessary”.
Symbolic Logic

► E.g.“If the laws are good and their enforcement is

strict, then crime will diminish. If strict
enforcement of laws will make crime diminish,
then our problem is a practical one. The laws are
good. Therefore, our problem is a practical one.”

(G • S) > D
(S > D) > P
G /*P
G > (S > D)
S>D
P
► A syllogism is a form of implication in which two
propositions jointly imply a third.

► A syllogism consists of three parts:

 the major premise
 the minor premise
 the conclusion

► There are several forms of syllogism: Categorical

(All S is P), Disjunctive (S or P), Hypothetical (If
S then P).
► Examples (of categorical syllogisms):

Major premise: All humans are mortal.

Minor premise: Socrates is a human.
Conclusion: Socrates is mortal.

Major premise: All appeals to WCAT must be heard by

panels appointed under section 238(1).
Minor premise: Smith‟s appeal is an appeal to WCAT.
Conclusion: Smith‟s appeal must be heard by a panel
appointed under section 238(1)
► Themajor premise is the broad premise that
forms the starting point of deduction. The major
premise represents the “all”. It contains the
“major term”.

► The minor premise is the second proposition. It

normally represents the something or someone
included in the all. It contains the “minor term”.
► Example: (From Roe v. Wade), Blackmun, J.

This right to privacy, whether it be founded in the

Fourteenth Amendment‟s concept of personal liberty
and restrictions upon state action, as we feel it is, or, as
the District Court determined, in the Ninth Amendment‟s
reservation of rights to the people, is broad enough to
encompass a woman‟s decision whether or not to
terminate her pregnancy.
► Implicitin this statement is the following
syllogism:
 Major Premise: The right of privacy is
guaranteed by the Fourteenth (or Ninth)
Amendment.
 Minor Premise: A woman‟s decision to terminate
her pregnancy is protected by a right of privacy.
 Conclusion: Therefore, a woman‟s decision
whether to terminate her pregnancy is
protected by the Fourteenth (or Ninth
Amendment)
 Propositions Contain Terms
► Premises and conclusions contain “terms”. A
“term” is defined as a word or group of words
contained in a premise or conclusion.
 Major term: usually the predicate of the major
premise and also the conclusion (“are mortal”)
 Minor term: the subject of the minor premise and
of the conclusion (“Socrates”) (“Smith‟s appeal”). It
is less inclusive than the middle term.
 Middle term: appears in the two premises, but not
in the conclusion (“All men”/”A man”) (“All
appeals”/”An appeal”). Usually the subject of the
major premise and the predicate of the minor
premise.
 Categorical Syllogisms
►Acategorical syllogism is a deductive argument
which consists of:
 Three categorical propositions;
 Containing exactly three terms;
 Each of the three terms must occur in exactly
two of the propositions
 Each of the premises must have one term in
common with the conclusion.
► Standard Forms of Propositions
► Quality/Quantity of Propositions
► Distribution of Terms
► Rules of Categorical Syllogisms
► Related Fallacies
 Standard Forms of Proposition
► There are four standard forms of
categorical proposition:

1. All judges are honest (Universal Affirmative “A”)

2. No judges are honest (Universal Negative “E”)
3. Some judges are honest (Particular Affirmative “I”)
4. Some judges are not honest (Particular Negative “O”)
 Quality/Quantity of Propositions
► Everycategorical proposition is said to have
both a quality (affirmative or negative) and
a quantity (universal or particular)
 Distribution of Terms
► Every term is either distributed or undistributed.
► A proposition “distributes” a term if it refers to all
members of the class designated by the term.
► A term is “undistributed” in (or by) a proposition if
it refers to only some of the members of the class
 In the Universal Affirmative (A) proposition (All S is P)
► thesubject term (S) is distributed in that proposition.
► The predicate term (P) is undistributed.

 In the Universal Negative (E) proposition (No S is P)

► both subject and predicate terms are distributed
► DistributionRules of Thumb:
 Quantity of a proposition (i.e. whether it is
universal or particular) determines whether its
subject term is distributed
►universal propositions always distribute subject
terms; particular propositions never distribute subject
terms
 Quality of a proposition (i.e. whether it is
affirmative or negative) determines whether its
predicate term is distributed.
►affirmative propositions do not distribute their
predicate terms; negative propositions do.
Rules of the Categorical Syllogism
► Rule One: A valid categorical syllogism must
contain exactly three terms, each of which is used
in the same sense throughout the argument.
► If the syllogism contains more than three terms (a
term in addition to the major, middle, and minor)
it commits the formal Fallacy of Four Terms.
 If there are four terms (“All men are mortal” and
“Socrates plays baseball”) there is no way of reaching a
conclusion. The fourth term is not only superfluous, it
destroys the comparison. With two middle terms there
is no basis for any comparison. Such an argument has
been called a logical quadruped.
 Rule One (continued)
► Ifa term is used in different senses in the
argument the informal fallacy of
equivocation results.
 E.g. Every good law should be obeyed. The
law of gravitation is a good law. The law of
gravitation should be obeyed.
 Here we really have four terms. The word law
is used equivocally (human v. physical law)
► Another Example of Equivocation (Hernandez v.
Denton, 861 F.2d 1421 (9th Cir. 1998):
Major Premise:
Those correctional officials who are involved in or
knowledgeable of inmate rapes are liable.
Minor Premise:
The defendants are correctional officials
Conclusion:
Therefore, the defendants are liable.
 Rule Two
► RuleTwo: In a valid categorical syllogism,
the middle term must be distributed in at
least one premise.

 Any syllogism that violates this rule is said to

commit the formal Fallacy of the
Undistributed Middle
 The fallacy occurs whenever it is argued that
because x and y belong to the same class or
possess a common property they are identical.
► Example:
 All dogs are mammals.
 All cats are mammals.
 Therefore, all cats are dogs.
► It is critical that the middle term encompass a
larger universe than the minor term
► Here the middle term is the class of mammals.
► Dogs are included in part of the class of mammals,
as are cats, but different parts of the class may be
involved so that the middle term does not connect
the major and minor terms. (mammals is not a
distributed term)
Major Premise:
Those correctional officials who are involved in or
knowledgeable of inmate rapes are liable.
Minor Premise:
The defendants are correctional officials
Conclusion:
Therefore, the defendants are liable.
► From Henderson:
 “This syllogism also exhibits the fallacy of the
undistributed middle. The middle term, “those
correctional officials who were involved of
knowledgeable of inmate rapes” is undistributed
in the major premise. The term “correctional
officials” is also undistributed in the minor
premise because it refers only to the defendant-
correctional officials, not the entire universe of
correctional officials.”
► Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., [1979] A.C. 731,
[1979] 2 All E.R. 927, [1979] 3 W.L.R. 68 (H.L.) (Lord Diplock)

“In seeking to formulate general propositions of

English law, however, one must be particularly
careful to beware of the logical fallacy of the
undistributed middle. It does not follow that
because all passing-off actions can be shown to
present these characteristics, all factual situations
which present these characteristics give rise to a
cause of action for passing off.”
► Ontario English Catholic Teachers‟ Assn v. Ontario (Attorney General),
162 D.L.R. (4th) 257 (Ontario Court of Justice) (1998) (Cummings J.) at
para.131:

“To explicate further: a syllogism may be described as a form of

reasoning in which from two propositions a third is deduced. Where
the deduction is unwarranted or invalid, the syllogism is a false one. A
simple example of a false syllogism is (1) apples are fruit (2) oranges
are fruit (3) therefore oranges are apples. In this case, the first
premise of the applicants is that the separate school system has
constitutional recognition. The second premise is that the public school
system has constitutional recognition … The deduction which follows,
in the applicants' argument, from these two premises, is that because
both school systems have a constitutional existence, they both have
exactly the same constitutional rights. In my view, this is an invalid
deduction, and therefore the syllogism is a false one.”
 Rule Three
► Rule Three: In a valid categorical syllogism,
no term can be distributed in the conclusion
which is not distributed in the premise.
 The rule rests upon the fundamental principle
that if the data refers to only some of a class,
no conclusion referring to every member of the
class can be deduced.
 Depending on the term that is distributed in the
conclusion but undistributed in the premise, we
have the Fallacy of the Illicit Major or the
Fallacy of the Illicit Minor.
► Example of an Illicit Major:
All judges are good tempered.
No poets are judges.
Therefore, no poets are good tempered.
► The major term “good tempered” is distributed in
the conclusion, but undistributed in the major
premise. We cannot say that only judges are
good tempered, yet that is what the major term in
the conclusion reflects.
► From R v. Lord [1958] O.R. 193 (Ontario High Court of
Justice) Stewart J.:

“4 Here again quoting the stated case, "the accused had in his blood
stream an amount of alcohol that would normally impair his ability to
drive a motor vehicle." This conclusion, reached by the expert and
concurred in by the learned Magistrate, may be put syllogistically thus:--

Most men whose blood contains 1.6 parts of alcohol are impaired.
This man's blood contains 1.6 parts of alcohol. Therefore this man
is impaired.

This is a clear example of the fallacy of the illicit major, as becomes even
more obvious almost a reductio ad absurdum if another example is taken,
e.g.: Most flying things are insects, This is a flying thing. Therefore this is
an insect.”
 Lord Quote Cont‟d
“5 Taking the major premise of the first syllogism, the fact that it is
"not always true" is implicit in the words "most men". The old adage "It is
the exception that proves the rule" is still valid if it is recognized that the
verb "prove" is used in the original sense of "to test" (L. probare -- to test
for good). Since an accused may always be one of the exceptions to
"most men", such an argument, standing by itself, can never provide
proof beyond a reasonable doubt. Such conclusions are often of great
value in civil cases which deal with probabilities and frequently helpful in
both civil and criminal cases as corroboration of, in the sense of adding
weight to, direct evidence. But it is logically inescapable that no accused
should be convicted of a criminal offence (when proof of guilt beyond a
reasonable doubt is required) upon the uncorroborated evidence of an
expert whose opinion is based upon a premise which is not accepted as
being of universal application.”
 Rule Four
► Rule
Four: No categorical syllogism is valid
which has two negative premises.

 Founded on the principle that inference can

only proceed where there is agreement. Two
differences or disagreements lead to no
conclusion.
 E.g. From James is not a lawyer; lawyers are
not steelworkers, we cannot conclude that
James is or is not a steelworker.
► “This type of reasoning is unacceptable because of the
difficulty is sustaining a factual proposition merely by
negative evidence.”

► “When an advocate determines that „there is no evidence

that B is the case‟ he or she is attempting to affirm or
assume that non-B is the case. But all that is affirmed or
assumed is that the advocate found no evidence of non-B.
The correct method of proceeding is to find positive
evidence of non-B. This may be difficult, but is absolutely
necessary if logical order is to be preserved. To prove a
negative is sometimes an impossible task. Not knowing
that something exists is simply not knowing”.
 Rule Five
► RuleFive: If either premise of a valid
categorical syllogism is negative, the
conclusion must be negative.
 To draw an affirmative conclusion is to commit
the Fallacy of Drawing an Affirmative
Conclusion from Negative Premises
No poets are managers
Some artists are poets
Therefore, some artists are managers
 Hypothetical Syllogisms
► A hypothetical syllogism is a syllogism with one
conditional premise and one categorical premise.
There are two forms.
► 1. Modus Ponens 2. Modus Tollens
If A, then B If A, then B
A Not B
Therefore, B Therefore, not A
► To be a valid argument, one must either affirm the
antecedent or deny the consequent.
 Fallacies in Hypothetical Syllogisms
► The Fallacy of Affirming the Consequent
If A, then B
B
Therefore, A
► Example: Bear v. Canada (Attorney General) 2003 FCA 40
“One must take care not to be drawn into a false
syllogism that because all discrimination prohibited by
the language of subsection 15(1) attenuates the dignity
of its victims, therefore all attenuation of personal
dignity is a prohibited form of discrimination.”
► Form of Argument: If discrimination is prohibited, then it
attenuates the dignity of its victims. X attenuates personal
dignity. Therefore, it is a prohibited form of discrimination.
► The Fallacy of Denying the Antecedent
If A, then B
Not A
Therefore, not B
► Example:
If the testator was insane, his will is invalid.
His will was invalid.
Therefore, the testator was insane.
► From R. v. Gladstone ([1985] B.C.J. No. 3023) (BCCA,
Lambert J.A. for the Court) at para. 32:

 “In logical or linguistic form, s-s. (2) says: "If A and B,

then C-11 The interpretation of s-s. (2) that would
require a denial of the power to exclude evidence under
s-s. (1), is: "If not A or not B, then not C." To say that
the second meaning follows from the first is a fallacy. It
is a fallacy not without precedent in legal reasoning,
but, in my opinion, it is a fallacy that would not be
expected in a new constitutional document of
unparalleled significance, drafted by experienced
parliamentary draftsmen.”
► French v. Indiana (266 Ind. 276) (1977) (De Bruler J.):

“I likewise disagree with the majority‟s argument that the

Fifth Amendment‟s due process clause recognizes the
legitimacy of capital punishment at it is logically fallacious.

This argument commits the classical fallacy known as

“denying the antecedent of a conditional statement”. This
fallacy is committed when a statement in the conditional
form “if P then Q” is taken to imply “if not P, then no Q”.
The relevant language of the due process clause is “no
person shall be ... deprived of life ... Without due process
of law”...This language may be represented in conditional
form as follows:
If a person is denied due process (if P) then that person
shall not be deprived of life (then Q). The majority seeks
to infer from this statement that if a person is not denied
due process (not P) then that he may be deprived of life
(then not Q). This violates the rules of deduction, as may
be seen in this example: If Columbia University is in
California, then it is in the United States. Columbia
University is not in California. Therefore, Columbia
University is not in the United States.”
► A special kind of ambiguity in logic and language results
from the fact that the words “if...then...” are used loosely in
legal language (and “...or...” as well).
► E.g. “If an alien has been a resident of a country for five
years, he may apply for citizenship”.
► This sentence can mean either that residency is a sufficient
condition for the application, is a necessary condition, or is
both a sufficient and necessary condition.
► If something is both a sufficient and necessary
condition use “if and only if”, if it is only a necessary
condition use “only if”, and if it is a sufficient condition
use “if…then”.
 Disjunctive Syllogisms
► Disjunctive syllogisms are syllogisms in which one
premise takes the form of a disjunctive proposition
(disjunction) and the other premise and the
conclusion are categorical propositions which
either deny or affirm part of the disjunction.
► Examples:
Either A or B Either A or B
A Not A
Therefore, not B Therefore, B
 Moods of Disjunctive Syllogisms
► There are two forms or “moods” which these
syllogisms take: (a) Mood Which by Denying
Affirms; and (b) Mood Which by Affirming Denies

► They differ as to the exclusivity of the disjuncts.

The first mood does not assume that the disjuncts
are mutually exclusive. The second assumes that
they are.
► The syllogism of the first mood (Mood Which by
Denying Affirms) says only that at least one disjunct is
true, leaving open the possibility that both may be true. It
takes the form:
Either A or B
Not A
Therefore, B
► The other mood (Mood Which by Affirming Denies)
assumes that the disjunction asserts two mutually
exclusive disjuncts. In this mood, the disjunctive
proposition is taken to affirm categorically that one, and
only one, disjunct is true. It takes the form:
Either A or B
A
Therefore, not B
Fallacies of Disjunctive Syllogisms
► Fallacy of Missing Disjuncts
 This fallacy can arise in either mood. It is committed
whenever a disjunctive proposition asserts the truth of
at least one of a pair or set of disjuncts when in fact
there are other possible or alternative disjuncts not
enumerated.
► Fallacy of Nonexclusivity
 This fallacy only applies to the second mood and occurs
whenever one assumes that affirming one disjunct
shows the other to be false when it is in fact possible
for both to be true.
► The real problem in law consists in creating
proper premises, that is, in discovering the
relations enumerated in the major premise.
► It is only when we understand the
systematic connections of things in the case
law that we are able to express these
connections in the form A is either B or C
and thus assert that the presence of one
excludes the other.
► Example (former RSCM I):
“#107.10 Distinction Between Reopening and New Claim
The distinction between a recurrence of injury which
entitles the worker to reopen an existing claim and a new
injury which entitles the worker to make a new claim is
illustrated by the following example decision.
…
Where a worker claims compensation in circumstances that
could reasonably be alleged either as a recurrence of a
previous injury or as a new claim, the matter should be
treated as if the worker is claiming both in the alternative.
 Enthymemes
► In formal argument, when one of the premises or
the conclusion is not expressed, the argument is
called an enthymeme (also known as an
“elliptical argument”)
► Many legal arguments and judicial opinions are
enthymematic because either the premise or the
conclusion is obvious and understood (or is
believed to be understood).
► Most often the missing premise is the major
premise.
► Example:
 Good girls get a star on their forehead; Lisa is a good
girl; Lisa gets a star on her forehead.
►Normally, we would just say that Lisa got a star on
her forehead because she is a good girl.
► Sometimes there is a tendency to make improper
assumptions (by omitting critical propositions).
► Alternatively, the assumption might be proper if justified,
but it is not justified (inadequate reasons)
► Wisdom dictates that you always test an enthymeme for
validity, supply the missing parts, and test the syllogism for
soundness.
 Inductive Reasoning
► Inductive reasoning is reasoning by example.
► It is the foundation for the law of precedent (stare
decisis). In the law, the circumstances or phenomena
that constitute the particulars in inductive reasoning
are the holdings in previous similar cases.
► Induction or inductive reasoning is the process of
reasoning in which the premises of an argument are
believed to support the conclusion but do not entail it.
► Inductive reasoning is only as good as the quantity
and quality of its premises.
► Twoforms of inductive reasoning are vitally
important in the law.
 Inductive generalization: reasoning from the
particular to the general - arriving at general or
universal propositions (principles) from the particular
facts of experience
 Analogy: reasoning from the particular to the
particular. To draw an analogy between two entities is
to indicate one or more respects in which they are
similar.
► Analogy does not seek proof of an identity of one
thing with another, but only a comparison of
resemblances. Analogy does not depend upon the
quantity of instances, but upon the quality of the
resemblances between things.
► Therefore the success of any analogical argument
lies in demonstrating the resemblances or
similarities.
► Often the art of advocacy resolves itself into
convincing the decision maker (or the
parties) which facts in previous cases are
positive (or negative/false) analogies
► Points of unlikeness are as important as
likeness in the cases examined
► Severalcriteria may be used to appraise an
analogical argument:
 The acceptability of the analogy will vary proportionally
with the number of circumstances that have been
analyzed.
 The acceptability will depend on the number of positive
resemblances and negative resemblances.
 The acceptability will be influenced by the relevance of
the purported analogies. An argument based on a
single relevant analogy connected with a single instance
will be more cogent than one which points out a dozen
irrelevant resemblances (quality not quantity matters).
 Aldisert‟s Suggested Approach
► 1. Identify the categorical deductive syllogism used by the
opinion writer – the major premise, the minor premise, the
conclusion.
► 2. Where did the major premise come from? If not from a
precedent or statute (or policy), did it emerge from
inductive reasoning – induced generalization or analogy?
► 3. the subject of the minor premise is usually the facts
found by the fact-finder. Is it identical to or properly a
part of the class represented by the middle term (usually
the subject) of the major premise? Here often you will be
resorting to analogy. How do the resemblances in the
material facts stack up? The differences?
 Fallacies of Induction
► Fallacy of Accident (dicto simpliciter)
 Occurs when we apply a general rule to special
circumstances and the application of the general rule is
inappropriate because of the situations “accident” or
exceptional facts.
 General rules have their exceptions, especially in the
law. E.g. This fallacy would be committed if a judge
applied the hearsay rule to a circumstance clearly falling
under one of rule‟s exceptions.
 Meticulously check quotations in an argument, because
it may set forth a general rule but omit the central
conditional clause “Except for circumstances A, B, and
C, the general rule is ... “
► Fallacy of the Hasty Generalization

 Converse of the fallacy of accident: fallacy of

hasty generalization occurs by reaching an
inductive generalization based on insufficient
evidence.
 It creates a general rule from an exceptional
circumstance.
 Also known as “leaping to a conclusion”, “hasty
induction”, “fallacy of the lonely fact”
► Professor Kevin M. Saunders (Informal Fallacies of
Legal Argumentation):

“Wariness of the fallacies of accident and hasty

generalization should not handcuff the courts or
prevent the evolution of the law. Rather, an
understanding of the fallacies aids in the
identification of situations in which a court could
stumble into a fallacy and counsel‟s caution and
insistence on a full exploration of relevant
similarities and differences when a general rule is
applied.”
► Fallacy of Slothful Induction

 Opposite of the fallacy of the hasty

generalization. It denies the logical conclusion
of an inductive argument (i.e. “it was just a
coincidence”)
 Informal Fallacies
► Argument from Ignorance
► Appeal to Inappropriate Authority
► Appeal to Pity
► Begging the Question
► False Cause
► Fallacy of the Single Cause
► No Sequitur
 Argument from Ignorance
(ad ignorantium)
► Occurs when it is argued that a proposition is true
on the ground that it has not been proven false, or
when it is argued that a proposition is false
because it has not been proven true.
► Because of special conditions imposed by the law,
the argument from ignorance may not be
fallacious in the legal context.
► For example, where evidence of a certain degree
is essential to uphold a case, emphasis upon the
absence of such evidence – what might seem an
appeal to ignorance – may be logically proper
► In some circumstances, the fact that certain evidence or
results have not been obtained, after they have been
actively sought in ways calculated to reveal them, may
have substantial persuasive force (e.g. new drugs being
tested for safety).
► In such cases the following factors should be kept in mind:
► (a) how many individuals are attempting the proof;
► (b) whether those individual are expert (competent);
► (c) whether those attempting the proof are motivated to
prove the matter;
► (d) whether those attempting to prove the matter have the
resources to conduct the inquiry; and
► (e) for how long a time have the individuals been trying.
Appeal to Inappropriate Authority
(argumentum ad verecundiam)

► When the premises of an argument appeal

to some party or parties having no
legitimate claim to authority in the matter at
hand.
► Heavy reliance upon authority is a special
feature of legal reasoning. What may
ordinarily seem a fallacious appeal to
authority may prove proper and even
compelling in law.
 Appeal to Pity
(Argument Ad Misericordiam)
► The appeal to pity may be viewed as a special case of the
appeal to emotion, in which the altruism and mercy of the
audience are the special emotions appealed to.

From a letter seeking reconsideration of a tribunal‟s

decision: “I have to admit, that I cannot compete with you
in terms of putting sentences together. I came to work in
Canada as an emigrant from the Netherlands and had to
learn to speak the language and also writing. I am always
grateful for the Canadian soldiers that liberated the
Netherlands. In 1942 the Gestapo ordered me to work in
Germany and I had to make war materials in a machine
shop and I refused to work for the enemy. They caught
me and put me in jail; concentration camp and forced
labouring. .. Sometimes I feel sorry for myself that in my
life I have so to say, not much luck.”
 Begging the Question
► Assuming as true what is to be proven (also
known as circular reasoning). Really a fallacy of
proof as opposed to logical form.
► This fallacy is often seen in the legal context. A
conclusion or some proposition that follows from
the conclusion alone appears tacitly or explicitly
among the supporting premises.
► Often as a result of the use of synonyms, which
can disguise the circularity (such as defining a
sleeping pill as “medicine that has a sophomoric
effect”)
► Learned Hand is quoted as reminding us:
“Not to be misled into assuming the conclusion in the
minor premise – not to beg the question. I can think of no
single fault that has done more to confuse the law and to
disseminate litigation. One would suppose that so
transparent a logical vice would be easily detected; but the
offenders pass in troops before our eyes, bearing great
names and distinguished titles. The truth is that we are all
sinners; nobody‟s record is clean and indeed it is only fair
to say that much of the very texture of the law invites us
to sin ...
 False Cause
► The fallacy of false cause is an argument
that treats as the cause of a thing
something that is not really its cause (non
causa pro causa – “not the cause for the
cause”). It has two specific forms:

 (a) cum hoc ergo propter hoc (“with this,

therefore because of this”); and
 (b) post hoc, ergo propter hoc (“after this,
therefore because of this”)
Post Hoc Fallacy

 The post hoc fallacy is the more prevalent form

in the law
 Occurs when an assumption is made that,
because one event precedes another, the first
event must have caused the later one.

1. B comes before A (post hoc)

Therefore, (ergo)
2. B comes because of A (propter hoc)
Examples:

 Superstitions – e.g. last time I won I had not bathed,

therefore I win when I have not bathed.

 “the sun rise when the rooster crows, so the rooster‟s

crowing must make the sun rise”

 “Most people hooked on heroin started with marijuana”

 passenger on the Andrea Doria

 Treats as a cause of a thing something that is
not (or may not be) the cause of the thing.

 Courts have held that a conclusion based upon

such reasoning is not a reasonable inference
but is mere speculation and conjecture.

 the post hoc fallacy is a particularly tempting

method of reasoning because temporal
sequence appears to be integral to causality.
 The fallacy lies not in concluding that the prior event
was the cause of the later event but in coming to that
conclusion based solely on the order of events, rather
than taking into account other factors that might rule
out the connection.

 The idea that correlation and causation are connected is

certainly true; correlation is needed for causation to be
proven (i.e. it is a necessary but not sufficient condition)

 Correlation does not imply causation – coincidences

happen
► White v. Stonestreet, 2006 BCSC 801 (Ehrcke, J.):

“The inference from a temporal sequence to a causal

connection, however, is not always reliable. In fact, this form of
reasoning so often results in false conclusions that logicians
have given it a Latin name. It is sometimes referred to as the
fallacy of post hoc ergo propter hoc: "after this therefore
because of this."

In searching for causes, a temporal connection is sometimes the

only thing to go on. But if a mere temporal connection is going
to form the basis for a conclusion about the cause of an event,
then it is important to examine that temporal connection
carefully. Just how close are the events in time? Were there
other events happening around the same time, or even closer in
time, that would provide an alternate, and more accurate,
explanation of the true cause?”
► LeBlanc v. Canada, 2006 TCC 680 (Bowman C.J.T.C.):

41 It is suggested that the appellants must have had a system

because they were so successful and that that system involved buying
a significant number of tickets on long shot outcomes, which, it is
argued, minimized their risk, because it ensured that if they did win,
they won big. For the reasons that I set out below this strikes me as a
non sequitur.

42 I shall deal with the last point first. If I understand it correctly it

is this: since you won it proves you must have had a system and
therefore a business. If you had lost it would have proved you had no
system and therefore no business and you could not have deducted
your losses. This contention is about as classic an exposition as I have
ever seen of the logical fallacy post hoc ergo propter hoc. It is true,
they won, but to say they won because they had a system has no
basis in the evidence at all. They won in spite of having no system. If
one is looking for a pattern it is that they bet massively and recklessly
and in those games where they could, they bet on long shots. Certainly
it meant that if they won they won big, but the converse is that if they
lost they lost big and given the astronomical odds against winning,
their chances of losing were far greater than their chances of winning.
► Kamberbeek v. Jones, 2001 BCSC 1810 (Wilson, J.)

15 Finally, Mr. Kamerbeek saw Dr. Fraser on 4 May

2001. Again, he complained of "an acute flare up of pain"
in the low back after bending over. To attribute the
complaints of 4 May 2001 to the event of 13 January 2000,
is, in the absence of evidence, an unwarranted application
of post hoc ergo propter hoc logic.
► Rothwell et. al. v. Raes, [1988] O.J. No. 1847 (Osler, J.) (emphasis added)

It is easy to fall into the error of believing that because there is a

temporal association between brain damage and vaccine
administration, the one is the cause of the other (the logical fallacy
reflected in the proposition post hoc ergo propter hoc). Temporal
association gives rise to a hypothesis that should be tested, no more.

… Thus temporal association could be coincidental. In the absence of a

specific pathological condition or clinical syndrome that is associated
only with the vaccine, the possibility of another cause cannot be ruled
out. Another approach to the question is through epidemiological
studies showing the frequency of occurrence of neurological reaction
associated with vaccination, as compared with its frequency of
occurrence in a population to whom the vaccine has not been
administered. While not providing clear proof of causation, such
studies may give rise to a useful inference. In drawing an inference
there are other factors besides temporal association to be
considered, including strength, consistency and specificity of
the association, plausibility and coherence.
 Fallacy of the Single Cause
► The fallacy of the single cause, also known as “joint effect”
or “causal oversimplification”, is a fallacy of causation that
occurs when it is assumed that there is one, simple cause
of an outcome when in reality it may have been caused by
a number of only jointly sufficient causes.
► Fallacy is avoided to some extent in the law (tort and
workers‟ compensation) in its emphasis that a single cause
(but/for) or material contribution beyond de minimis is
sufficient for causation.
► Causal oversimplification is a specific kind of false dilemma
where conjoint possibilities are ignored. In other words,
the possible causes are assumed to be "A or B or C" when
"A and B and C" or "A and B and not C" (etc.) are not
taken into consideration.
 Non Sequitur
► Non Sequitur (“it does not follow”)
 An argument that contains a conclusion that does not
necessarily follow from the premises or any antecedent
statement offered in its support.
 Sometimes called the fallacy of the consequent
because it always exhibits a lack of a logical connection
between the premises and conclusion.
 Post hoc fallacy lacks a causal connection, non sequitur
lacks a logical connection.
 What makes it particularly troubling is that it is an
argument that may contain statements that are all
relevant but that are logically disconnected with the
conclusion.
► United States v. Williams (D.C. Cir. 1977):
“The logical fallacy in this syllogistic presentation is that of
a non sequitur because the conclusion does not really
follow from the premises by which it is supposed to be
supported…
.. The logic behind the statement of the majority opinion in
this respect is the same as that of the robber who testified
he could not have been at the bank when it was robbed
because at that time he remembered he was four miles
away riding a white horse, and here is the white horse to
prove it. Defence lawyers occasionally make this illogical
argument to juries but this is the first instance to my
knowledge of its acceptance by an appellate court.”
► In a speech in Chicago in 1854 Abraham Lincoln
said:
“It was a great trick among some public speakers
to hurl a naked absurdity at his audience, with
such confidence that they should be puzzled to
know if the speaker didn‟t see some point of great
magnitude in it which entirely escaped their
observation. A neatly varnished sophism would be
readily penetrated, but a great, rough, non
sequitur was sometimes twice as dangerous as
well polished fallacy.”
► Presenter: "That concludes my two hour
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