Legal syllogism
Legal syllogism is a legal concept concerning the law and its application. It is based upon deductive reasoning applied for the sake of law, hence it is also called legal deduction or deductive legal reasoning.
In legal syllogism there are two premises, minor and major, and one conclusion.
The place of the major premise is taken by a legal norm (or rule). This norm (rule) may be derived from canonical text (text of statutes, constitutions, regulations, international treaties and agreements, ordinances, bylaws etc) or from a judicial precedent. In the latter case, it can be called ratio decidendi or ruling. In the main, it can be considered as a general expression which, in generic terms, states what one ought to do or ought not to do in a certain type of circumstances.
The facts of the case at hand (also called pending, instant, sub judice, at bar or under argument or consideration) serve as the minor premise. These facts may be understood as all elements of the factual setting of the case at hand (or state of affairs), i.e. the details of the events, things and persons which occurred in a case to which the rule/norm that constitutes the major premise is to be applied deductively.
The conclusion is formed by the legal consequence for the case at hand.
If the norm that forms the major premise is valid (binding in a given legal system) and the facts of the case at hand are proven or posited as true, the conclusion of legal syllogism which flows from subsuming these facts under this norm (rule) is supposed to be correct as well.[1][2]
In that sense, legal syllogism can be deemed to be equally infallible as 'ordinary' ('logical') syllogism. Such a claim is, however, ill-founded and, in fact, subsumption of a concrete case under a general rule proves to be a value-laden and goal-oriented process. Neither is it 'logical', nor 'mechanical'.[3][4]
Sometimes it is also regarded as being tantamount to an 'interpretational decision.'[5]
See also[edit]
References[edit]
- ↑ Maciej Koszowski, "Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning." The Indonesian Journal of International & Comparative Law no 1/2017: 74–76.
- ↑ Maciej Koszowski, "Intricacies, Fallacy and Madness of Legal Deduction." Archiv für Rechts- und Sozialphilosophie no. 4/2017: 495-496.
- ↑ Maciej Koszowski, "Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning." The Indonesian Journal of International & Comparative Law no 1/2017: 76-81.
- ↑ Maciej Koszowski, "Intricacies, Fallacy and Madness of Legal Deduction." Archiv für Rechts- und Sozialphilosophie no. 4/2017: 496-502.
- ↑ Bartosz Brożek and Jerzy Stelmach, Methods of Legal Reasoning, Springer: Dordrecht 2006: 27.
Bibliography[edit]
- Maciej Koszowski, Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning. The Indonesian Journal of International & Comparative Law no. 1/2017: 73–87.
- Maciej Koszowski, Intricacies, Fallacy and Madness of Legal Deduction. Archiv für Rechts- und Sozialphilosophie no. 4/2017: 494-503.
- Bartosz Brożek and Jerzy Stelmach, Methods of Legal Reasoning, Springer: Dordrecht 2006.
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