The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument by Stephen M. Rice (National Institute of Trial Advocacy, 2017) 290 pages, $ 75.
The lawyer’s job, when confronted by an argument with an errant logical structure, is to focus on the architecture of the argument. Herein lies the problem: many lawyers are not trained in formal logic enough to spot these logical errors. Even when they do sense the errors, they do not have language tools to talk about them. … The problem with an argument with an errant logical structure is neither a fact problem nor a law problem. Instead, it is a logic problem and many lawyers are not well armed to talk about logic: what logic is, what logic’s role is in legal argument, and importantly, how to describe and talk about problems of logical form.1Stephen M. Rice, The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument (National Institute of Trial Advocacy, 2017), Chapter 1.2.
Professor Stephen M. Rice of Liberty University School of Law (Lynchburg, Virginia) correctly observes that while lawyers employ a variety of tools in describing why an argument misleads, distorts, ignores relevant facts, or mischaracterizes the law, few are equipped with the tools to describe the errors in the logical form of an argument. It is not as if every legal argument challenged will invariably entail a logical error, or that the application of logic is the be-all and end-all of legal argumentation, but it is another important, if not indispensable, weapon in the lawyer’s arsenal.
Rice’s goal in The Force of Logic is simple: to show the tools of formal logic in designing legal arguments, identifying, and describing the errors in their logical structure, and using them as an efficient way of making, evaluating, and responding to legal arguments. Focusing on how to design legal arguments to make them sound and compelling, Rice shows how when legal arguments are “stripped of their rhetorical façades, masonry cladding, and cornices and … reduced simply to a concrete foundation and steel framing,” the strengths and weaknesses of their logical structure are revealed.
Written in non-technical language with ample examples to illustrate his points, Rice offers an informative and practical text on logic and its application in legal argumentation. Mind you, it is not a gripping narrative that will entice you to forgo your beauty sleep or to binge-read as one would with a fast-paced novel, but neither is it an Ambien substitute. But then again, this is not a text to breeze through and set aside on your bookcase to gather dust – unless you happen to be comfortably familiar with formal logic. Caveat: The Force of Logic is rather lengthy, unnecessarily repeats on the virtues of logic in legal argumentation, and fails to show how to attack legal fallacies other than pointing out the fallacy – which may not necessarily be understood or appreciated by judges or juries who are not familiar formal logic. Identifying bad logic is only a point of departure, and where Rice could have gone further (and cogently) is in showing how to counter bad logic, especially when making oral submissions and where one does not have the luxury to consult texts such as his and to cogitate on how to formulate a well-constructed written refutation.
Caveat aside, The Force of Logic is a reference book that one should periodically consult when dissecting an opponent’s written submissions or when constructing an argument where deductive and inductive logic and analogy are at play. It is also complements other fine reference texts on legal argumentation, such as Wilson R. Huhn’s The Five Types of Legal Argument, or United States Supreme Court Justice Antonin Scalia’s and Bryan A. Garner’s Making Your Case: The Art of Persuading Judges. Legal argumentation is not just about logic, and the more ways an argument can be bolstered or attacked, the better.
I have been a big fan of breaking down arguments to reveal their logical structure, though I must confess, even though I took a course in logic at university, over the years, I generally rely more on instinct than on carefully breaking down arguments to their logical components to determine the strengths or weaknesses of their premises and their logical validity. Periodically, I do consult Judge Ruggero J. Aldisert’s Logic for Lawyers: A Guide to Clear Legal Thinking, another gem on logic and law, though at times I have found it less utilitarian than was intended; it tends to veer too far into the weeds in labeling and listing, without laying out an easy-to-follow foundation necessary to understand and identify logical fallacies. It presumes that the reader is familiar and comfortable with the rules, terms, and structure of formal logic. Notwithstanding these limitations, however, Logic for Lawyers has been one of my legal writing companions (including when sketching out oral arguments) since it was first published in 1989.
So, when I saw the title The Force of Logic, and knowing the sort of practical texts put out by the National Institute of Trial Advocacy (NITA), my interest was piqued. I did not need to be persuaded on the “force” of logic, just as I was under no illusions that reading a book on logic would not make me any more logical than I may or may not be. Judge Aldisert disabused me of that notion years ago.
But to those who say that old dogs cannot learn new tricks (or improve on the tricks they know), my take is that if you are a trial or appellate lawyer, if you are making written and oral submissions, and if you are called upon to cut to the quick in exposing an opponent’s argument for its logical fallacies and reducing its persuasive strength, then reading an occasional text related to the tools of the trade is as useful as keeping up with the vogue in trial and appellate advocacy skills. In fact, I will go out on a limb and say, for those practicing at any of the international(ized) tribunals, skills on the oral delivery of the message (making an opening or closing statement, conducting direct or cross-examination, etc.) are less important than drafting skills, where the advocate is called upon to make cogent and logically sound submissions, and to dissect and reduce the persuasiveness of the opponent’s arguments.
This is the first part of a two-part book review. Here I will cover the general concepts and necessary terms Rice sets out in explaining what formal logic is and how it relates to legal argumentation. This should set a nice foundation for the discussion in the next and final post, where I will cover the essence of the book – fallacies in the logical structure of legal arguments, and how to identify, describe, and avoid them.
Kind of Blue, modal jazz and logic
I knew I was in for a treat from the very beginning, when Rice tapped into the making of Miles Davis’s legendary album, Kind of Blue (commonly referred to as just Blue), to explain the value of formal logic in legal argumentation. With little preparation (the entire album was recorded in almost one session), the results were incomparable, making Blue perhaps the most iconic and influential jazz album in modern jazz, inspiring many musicians and jazz enthusiasts to this day. The secret to creating this extraordinary music, as Rice explained, was the use of “modal” jazz: a method of improvisation, where soloists play a melody over musical “modes.” As my colleague Noah Al-Malt, a classically trained saxophonist and oboist of considerable experience put it, modal jazz uses as its harmonic framework the modal scales (groups of seven notes played in ordered succession) of the early Greeks – Dorian, Ionian, Phrygian, Lydian, Mixolydian, Aeolian, and Locrian. Rock-and-roll, bebop, pop, gospel, and church music, by contrast, typically use western major or minor scales played over chord progressions (a harmonic set of two, three, four, or even several notes played simultaneously).
Learning modal jazz changed Rice’s way of thinking about and listening to jazz. In the same way, understanding formal logic changes a lawyer’s way of thinking about, hearing, and making legal arguments. The rules of logic in legal argumentation have the same impact as the rules of music theory in jazz: they make the music and arguments more appealing and persuasive. Just as knowing some basics about music theory helps people communicate about music and explain what they like or dislike about what they hear, understanding the basic rules of formal logic helps lawyers communicate about legal arguments and describe hat is wrong with the logical structure of an argument.
The Force of Logic is divided into 12 relatively short chapters. The first three chapters discuss the general concepts of logic, such as deduction, induction, and analogy, and their role in the process of making legal arguments. Chapter four focuses on deductive logic, syllogisms, and the rules essential to the nature of legal arguments, which dictate their logical structure. Chapters five through ten discuss the various types of logical fallacies that occur when one of the logical rules is violated. Each chapter explains the nature of the fallacy, provides useful tools showing how to break down the arguments, identify the fallacies, and describe what is wrong with its logical structure (and why). Each chapter provides practical examples and case studies to demonstrate and discuss the practical aspects of logical fallacies. The remaining two chapters, eleven and twelve, discuss the use of fallacy-based perspective in legal argumentation, focusing on its practical value for judges and lawyers in understanding the process of persuasion and legal argumentation.
Logic and the tools of crafting legal arguments: deduction, induction, and analogy
Lawyers (good ones at least) have in their toolbox several logical tools for crafting creative and well-reasoned legal arguments. As Rice points out, understanding how to define and distinguish these logical tools aids in appreciating the role formal logic plays in legal argumentation and, in turn, improves the quality of legal argumentation. Rice covers three logical tools – deductive logic, inductive logic, and analogy – and provides a brief overview of using logical fallacies to describe the logical failures in legal arguments.
In appreciating each of these legal tools, some terminology is necessary.
Deductive logic is, as Rice puts it, “the process of reasoning from a general rule to a particular outcome.” For example, when you apply a rule of law to a particular set of facts to predict the outcome, you are using deductive logic. Anyone who has read Arthur Conan Doyle’s Sherlock Holmes (or watched any of the films in which the celebrated detective is portrayed) is aware of Sherlock’s deductive logical process, leading from general observations to specific conclusions.
To make a deductive argument, you use a logical form called a syllogism, as Rice defines it: “an argumentative structure made up of two distinct but related premises and a conclusion.” The first premise is called the major premise – the predicate or basis of the conclusion. The second premise is called the minor premise – the subject of the conclusion. Typically, the major premise is a pronouncement of the law, while the minor premise is a statement of facts. Applying the major premise to the minor premise leads the reader to the conclusion. Here is one of Rice’s examples:
[Major premise] All valid corporations are legal entities with at least one shareholder.
[Minor premise] Excavation Solutions, Inc. is a valid corporation.
[Conclusion] Therefore, Excavation Solutions, Inc. is a legal entity with at least one shareholder.
There are several forms of deductive arguments. In law school in the United States, students are introduced to one form of deductive logic called the IRAC (pronounced “eye-rack”) pattern – issue, rule, application, and conclusion – to analyze jurisprudence. The issue statement identifies the question presented to the court. The rule statement identifies the applicable law. Application is the process of applying the applicable law to the facts in order to justify the conclusion.
In forming deductive arguments, there are three main types of syllogisms: hypothetical, categorical, and disjunctive.
(1) Hypothetical: In a hypothetical syllogism, the conclusion flows from the relationship between the proposition in the premises. The major premise in a hypothetical syllogism is formed using conditional language such as “if … then…”, “on the condition that…”, “in the event that…”, “when…”, “assuming that…”, etc. The minor premise typically states the facts, and the conclusion then follows from the relationship between the major and minor premises. Here is Rice’s example:
[Major premise] If a person is a partner in a general partnership, then he or she is personally liable for the partnership’s liabilities.
[Minor premise] Jennifer is a partner in a general partnership.
[Conclusion] Therefore, Jennifer is personally liable for the partnership’s liabilities.
(2) Categorical: The categorical syllogism focuses on categorizing persons, places, actions, behaviors, etc. In a categorical syllogism, the conclusion flows from the relationship between the subjects in the premises and their membership in a particular category. The major premise in a categorical syllogism includes qualifying language such as “all”, “some”, or “no”. Here is Rice’s example:
[Major premise] All valid corporations are legal entities with at least one shareholder.
[Minor premise] Excavation Solutions, Inc. is a valid corporation.
[Conclusion] Therefore, Excavations Solutions, Inc. is a legal entity with at least one shareholder.
(3) Disjunctive: A disjunctive syllogism presents two alternatives, followed by a categorical assertion that one of the alternatives is true and that the other is false. The major premise in a disjunctive syllogism is formed using the operator “or” (known in linguistic and logic terminology as a “disjunct”). Here is Rice’s example:
[Major premise] Limited Liability Companies are either member-managed or manager-managed.
[Minor premise] Redundant Technologies, LLC is not manager-managed.
[Conclusion] Therefore, Redundant Technologies, LLC is member-managed.
Using deductive logic in legal argumentation is particularly useful where arguments can be made from an uncontroversial statement of the law or facts. The use of the syllogism in deductive logic is valuable in its ability to justify an inference (the conclusion) from two true premises. Fittingly, Rice advises: “Whether the deductive argument takes the form of a categorical, hypothetical, or disjunctive syllogism, spotting the logical issue in an argument is the first step toward analyzing the argument’s logical form.”
Inductive logic is the inverse of deductive logic; instead of reasoning from a general principle to a specific outcome (deductive logic), inductive logic draws general principles from particular, specific instances. For example, if I conclude that one of my buddies is an avid reader because I always see him reading the latest legal novel or law review article, I drew that conclusion inductively. I reached the general conclusion based on my observation of his behavior on several instances over a period of time.
Inductive logic comes in handy when deductive logic leads to a weak legal argument, for example, where the applicable law, the scope of a particular rule, or the law’s application to the facts are uncertain. Inductive logic is used by synthesizing several cases, official and academic commentary of legal texts, etc. into a generalized statement of what the law ought to be. While it may be impossible to examine the entire universe of relevant case law or legal texts, lawyers must be duly diligent in doing the necessary research before making such predictive analyses of what the court will or ought to do.
Inductive logic also comes in handy when it comes to investigation. Lawyers must think inductively to determine which witnesses to locate, which documents must be sought after, etc. Again, Rice’s advice is on point: “Induction allows you to predict the universe of specific facts you must investigate to reach a general conclusion.”
Analogy is “a non-identical or non-literal similarity comparison between two things, with a resulting predictive or explanatory effect.”2See Stephen M. Rice, The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument (National Institute of Trial Advocacy, 2017), Chapter 2.2.3, quoting Dan Hunter, Teaching and Using Analogy in Law, 2 J. Ass’n Legal Writing Directors 151, 152 (2004) (internal citation omitted). In contrast to deductive and inductive logic, analogy is not constrained by strict formal rules. Analogies can be concocted, as Rice explains, “without limits on what characteristics of the specific instances are relevant for making a useful analogy,” and proffer conclusions that are, “at best, probably true.” Argument by analogy can be done in a couple of different ways. For example:
- Drawing an analogy between the facts of your case and the facts of another to conclude that both should be resolved similarly, when there is uncertainty about the rule governing the outcome of your case.
- Distinguishing the facts of your case from another to conclude that your case is so factually distinct from the other case that no meaningful comparison can be drawn, and thus a different rule should apply or a different outcome should result.
Analogy is one of the weaker legal arguments to be made, when deduction and induction are inappropriate, and the persuasiveness of analogical arguments relies on the quality of the comparisons being drawn.
The use of logical fallacies in legal argumentation
A logical fallacy occurs when an argument violates a rule of logic and has serious consequences. Lawyers use logical fallacies to identify and describe logical flaws in arguments, and why the opponent’s arguments must fail.
There are two main categories of logical fallacies: informal and formal.
Informal fallacies simply identify weaknesses in the argument and are not strictly related to the form of the argument and its failure to comply with the strict rules of logic. Even if an informal fallacy is committed, the argument might still have some persuasive value. Some examples of informal fallacies are the straw man (rebutting an argument that was not presented by the opponent), ad hominem (attacking the character, motive, etc. of the opponent making the argument, or persons associated with the argument), and slippery slope (suggesting that allowing something to happen, even if minor, will lead to major consequences).
Formal fallacies assert that the opponent’s argument must fail because his or her proffered conclusion cannot be supported by the argument as crafted. Formal fallacies apply only to deductive arguments (i.e. syllogisms). Deductive arguments, as I have discussed above, are comprised of two premises which justify a conclusion. The two premises must be true for the conclusion to be true and the argument must comply with the rules of formal logic that dictate the structure of the arguments.
When a formal fallacy is committed, the relationship between the premises and the conclusion is illogical, and the conclusion must thus be rejected. Here, to be precise, we must distinguish between truth (or falsity) and validity. An argument’s premises are either true or false; a premise cannot be valid or invalid. Conversely, the logical form of an argument is either valid or invalid; the form of the argument cannot be true or false.
For example, when one of the premises of an argument is false, a formal fallacy is committed and the conclusion must fail. However, even if the premises are true, but the argument does not adhere to the formal rules of logic, the argument is invalid and a formal fallacy is also committed. This type of argument (with its true premises, but flawed logic) is not merely weak, but entirely unreliable, as Rice notes. Impeaching the validity of the logical form of an argument is just as powerful as proving the falsity of one of its premises.
Attacking the truth of one or more of the premises is intuitive even for lawyers unfamiliar with the rules of logic. Attacking the structural validity of an argument requires an understanding of the rules of formal logic.
In acquiring such an understanding, and improving the quality of one’s argumentation and advocacy, I highly recommend that all lawyers, law students, advocates, etc. take Rice’s apt advice:
The methods of logic we lawyers use to create, design, and evaluate arguments are among many tools we can use. Don’t merely employ these logical tools occasionally; use them throughout the spectrum of skills necessary to successfully practice law.
Footnotes [ + ]
|1.||↑||Stephen M. Rice, The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument (National Institute of Trial Advocacy, 2017), Chapter 1.2.|
|2.||↑||See Stephen M. Rice, The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument (National Institute of Trial Advocacy, 2017), Chapter 2.2.3, quoting Dan Hunter, Teaching and Using Analogy in Law, 2 J. Ass’n Legal Writing Directors 151, 152 (2004) (internal citation omitted).|