Document Type

Article

Publication Date

1998

Abstract

We may happily agree with Holmes that logic is not the life of the law' and yet contend that logic should play a significant role in legal discourse. Logic cannot demonstrate the truth of premises, and so by itself it cannot demonstrate the merits of a legal argument. Moreover, even given the premises, it may be that a leap of faith, or intuition, has an irreducible role at least in some good legal arguments.2 But at least a sound legal argument will not be an illogical one. An argument will not be persuasive if it appears to violate basic principles of logic. If the enunciation of a principle of law is to have any hope of stability it must be capable of consistent application in situations that are materially similar, and if the articulation is not logically coherent this condition is unlikely to prevail. In this paper, I will explore the use of symbolic logic in discussing the notion of elements of a claim or a defense. I will use the term "claim" in a general sense, referring not only to the grounds underlying an action-what is asserted in a complaint or charging instrument- but also to any demand forjudicial relief. Thus, I will speak of a claim for preliminary relief or for discovery sanctions. In Part I, I will suggest that the attempt to state a legal argument by setting out the elements of the claim or the defense symbolically can often assist the quest for clarity. In Part U, I will explore some of the limits of this technique, showing that in some cases the very notion of the elements of a claim or a defense breaks down. In Part Im, I will suggest the outlines of a logic for legal argument that operates defeasibly and so is significantly different from the classical logic presented vividly and engagingly in a wonderful new text, Premises and Conclusions, by Robert Rodes and Howard Pospesel. 3


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