A Primer on the Civil-Law

System
Abdulrahman Mangandog, Graziella Andaya, Georgia Angela Dacuan,
Denise Michaela Yap, Jose Victor Santos, Santiago Baluyot, Don Christian
Santiago, Renzo Francesco, Cuisia Carlos Castañeda,
Kaisser John Acuaña.
Definition
• Common law-is that body of law derived from judicial decisions of
courts and similar tribunals.
• Civil law-is a legal system, in which that its core principles are codified
into a referable system which serves as the primary source of law.
• Mixed-Implements a little bit of both
In the Beginning: “All Roads Lead to Rome”
• Lingua Franca- Language, as a culture, as a means of communication.
• The concept of law, in general is a microcosm of a culture.
• The template of which was Latin Language.
Rome
• Created the Republic.
• Adopted Greek principles of Democracy.
• Established the Civil Law system by 27 BC
• Had a caste of Jurists, Who develop new principles, rules, and
procedures to meet the challenges of their particular age
• This judiciary was nonprofessional.
Medieval Developments in Italy
• 11-15 Century, successor of the Roman system.
• System of law to fulfil both the commercial and social needs of the
populace.
• Glossators- interpreted textual material from the Corpus Juris Civilis
and disseminated those interpretations to other scholars, law
students, and lay judges
Corpus Juris
Civilis
• Originally from Rome
• Adopted by Italy
• Then adopted later by Spain
• Template for the Civil law
Canon Law
• Originated from Italy
• Made from Corpus Juris Civilis, and customary Law.
• Culminating to Concordia Discordantium Canonum.
• It is the basis for almost all canon law.
Law for Merchants
• Originated from Italy
• Made from Corpus Juris Civilis, and customary Law.
• Necessitated due to the increased trade and infrastructure.
• To maintain logistics and efficiency of the trade, the law was
propagated.
Maritime Code
• Influenced and necessitated by the Laws for Merchants.
• To be able to keep the gears of industry well oiled.
• Consolato Del Mare (Consulate of the Sea)
• Compiled in Spain
Trade Courts
• With increase trade, there was increased conflict.
• Courts had to be created to be able to resolve trade matters.
• separating commercial law and procedure from other parts of the
law.
Recap
Rome
Template

Italy Canon law and

Law of Merchants

Spain Maritime code and

trade dispute courts
1. Canon Law and the Law Merchant
2. Intellectual Developments Leading to the
Codification Process
3. The Codification Processes in France and Germany
- The French Code
- The German Code
- The Codes of Chile and Brazil

4. The Development of the Role of Jurists in Modern

Systems
Canon Law and the Law
Merchant
Roman law as Customary
incorporated in (local) law
Justinian’s
Corpus Juris
Civilis,
medieval period
• (1) the creation of a
comprehensive canon or
ecclesiastical law by the
Roman Catholic Church
• 2) the maturing of a law merchant,
or law covering commercial
transactions, as the result of the
growth of commercial classes and
expansion of commercial activities
in European cities and regions.

ecclesiastical courts evolved within the Roman church

has;
1.relatively uniform structure,
2. systematic management, and
3. educated staff of judges trained and skilled in applying a
canon law
Gratian
A jurist, who produced the Concordia Discordantium Canonum
basis for all canon law

Which has divided into 3 parts

(1)the nature and sources of law and ecclesiastical offices and conduct;
(2) clerical behavior, penal law and procedure, church property, religious
orders, marriage, and penance; and
(3) sacraments and church doctrine.
development in medieval Europe of the law
merchant
(1)the creation and expansion of commercial relations between Italian city-
states and between the city-states and other urban centers outside Italy;
(2) the growth in maritime commercial activities and the necessity for rules
and regulations to govern that commerce;
(3) the rise in the number of fairs and markets throughout Europe and the
need to regulate commercial transactions in such settings; and
(4) the rise of associations of merchants in commercial centers created for
purposes of safety of goods in transit, financial security, and speedy
resolution of commercial disputes.
The organization of merchants, seafarers, craftsmen, and traders into associations and guilds
formed a community of institutions that followed local custom and practice, which in turn provided
substance for the body of commercial law that followed. The law merchant also had a Roman law
element, because Roman private law had addressed such commercial matters as negotiable
instruments and contracts.
A vast assortment of important customs relating to commercial practices for sea transport
developed in the Italian cities of Genoa and Pisa, two important commercial centers of the medieval
world. These customs greatly influenced the compilation of the most important maritime code of
the period, the Consolato Del Mare (Consulate of the Sea). Compiled in Barcelona, Spain, and
containing over 330 articles, the Consolato Del Mare covered such maritime matters as construction
of vessels, circumstances requiring assistance to other vessels in distress, general average (a
maritime principle for allocating damages), employment of pilots, and privateering. One article, for
example, established the legal requirement of a ship to carry a cat to deal with the rats on board.
This influential code was translated from the original Catalan (an early western Mediterranean
language) into Latin, French, and Italian and was circulated in the early sixteenth century
throughout Europe.
Municipal commercial courts emerged to handle mercantile cases. The power of the guilds to regulate
commerce within a particular craft often resulted in the adoption of municipal statutes governing organization,
internal policies, and commercial practices of a particular craft. These municipal statutes were usually based on
the customs of the craft guilds that had been periodically recorded, and they became a source of local
commercial law.
MUNICIPAL STATUTES – serves as guilds and guild members

establishment of special commercial courts to deal with trade disputes and trade matters—both in the cities for
the benefit of guilds and at markets and fairs—paved the way for the modern practice in some European
countries of separating commercial law and procedure from other parts of the law. Commercial law and
procedure were assigned to a special commercial code, and special commercial courts were created to
administer the commercial law.
main tributary was Roman law, primarily contained in Justinian’s Corpus Juris Civilis, as modified and
elaborated by the glossators and commentators in the Italian universities. The other tributaries were
customary (local) law, canon law, and the law merchant. Together they came to be known as the jus
commune (or “common law”—different from the common law of England), common to a whole kingdom
and the peoples within it. The jus commune as it was established in France, Spain, and other European
monarchies was characterized by both continuity and similarity of attitudes about the law
 Developments
Leading to the
Codification Process
Humanism – originated from renaissance period known as the “NATURAL LAW” school.

politics and religion the decline in the secular influence of the Roman Catholic Church and the
waning of the power and authority of the Holy Roman Empire were accompanied by the birth
of the concept of the nation-state and an emphasis on strong, central governments.
developments culminated in the creation of the modern European system of states by the
signing of the Treaty of Westphalia in 1648, which ended the Thirty Years War and, with it, the
Holy Roman Empire
inspired by the culture of antiquity—primarily Greece, and to a lesser extent Rome.
Hugo de Groot “Grotius”
father of public international law
1. De Jure Belli ac Pacis (On the Law of War and Peace)
- universal concepts of law that transcended national boundaries and were not
dependent on any one legal system.
ADVOCATED that;
a.) law being based on human experiences and desires.
b.) rational approach to the structure of law and the resolution of disputes.
c.) systematic arrangement of legal materials
Samuel Pufendorf and Christopher Wolff
-jurisprudential writers
- Who attempted to build a legal system using the scientific methods of Galileo and
Descartes
-Pufendorf, who introduced the inclusion of introductory articles stating the general
principles of law that provide the framework for the subsequent sections can be
attributed to his work and influence.

“codification in the sense of a rationally organized statement of the whole field of law (or of
all private law) was only possible after the work of the natural lawyers.”

During the 18th century, ENLIGHTENMENT had paved a way with regard to the intellectual and social
turmoil that happened during the 15th – 17th Century
- based on a belief in the fundamental importance of reason
- provided the final stimulation for the creation of the modern comprehensive codes of the
different European states
Justinian’s
starting point for the codification process
In their codification it also provided a rational statement of the legal principles and rules on
almost the entire range of subjects of private law and was a shared tradition in almost all
European legal systems

age required that citizens be knowledgeable on matters of law, so that each citizen
could know and understand his or her rights and duties under the law.
The Codification Processes in
France and Germany
The French code
• Napoleon appointed four senior practitioners of law
• four years, devoted to drafting the code
• Code Civil des Français - 1804, with 3 books and has 2,281 articles
following is the basic structure of the Code Civil:
1.Six articles at the beginning of the first book announce general principles
of law, including the publication, effects, and application of the law.
2. Subsequent titles in Book I (articles 7–515) deal with civil rights and the
status of persons, and with marriage, divorce, and paternity.
3. Book II (articles 516–710) covers real and personal property, and the
ownership and rights relating to such property.
4. Book III (articles 711–2281) contains provisions on rights of succession,
contracts, and obligations (the law of obligations covers general principles of obligations, as well as
specific contracts, quasi-contracts, delict (tort), security rights, and property rights in marriage).
The German Code

• ended up with a code that was largely the product of codification processes in three
Germanic states: Bavaria, Prussia, and Austria
• still in effect, resulted from the creation of a commission by statute in 1873 to codify
German civil law. Bürgerliches Gesetzbuch, or BGB containing 5 books
• Book I—General parts, including natural and juristic persons, the definition of things,
classification of legal acts, and prescriptive periods.
• Book II—The law of obligations, including creation and discharge of obligations,
contracts, and the law of delict.
• Book III—The law of real and personal property, including the ownership and possession
of property and servitudes on property and securities.
• Book IV—Family law, including marriage and other relationships within the family.
• Book V—The law of succession, including hereditary succession and the rights of heirs,
wills, settlements, and requirements of proof relating to inheritance.
The Codes of Chile and Brazil

• Spanish law was responsible for the reception of Roman law in

Central and South America through the colonizing activities of the
conquistadors and those who followed them
• Legal developments in North America also influenced Latin American
legal systems, with regard to their constitutional theory and practice
and the structure of government.
• the content of civil, commercial, and procedural codes, legal
education, the structure of the legal profession, the influence of legal
scholars, and the role of the judge in the judicial process in almost all
Latin American countries conform very much to the civil-law tradition
that evolved in central and western Europe.
• Spanish law itself became a jumble of codes, legislation, and judicial
decisions.
• Nueva Recopilación
• The codification processes in Chile and Brazil are significant because
of the great influence of the Chilean code on those of many of other
Latin American countries and because of the size and influence of
Brazil generally in Latin American affairs and the uniqueness of its
situation as a former Portuguese colony.
 ANDRESS bello
• Who started the civil law tradition in Chile. Who drafted the New Civil Code
for his adopted country, Chile.
• The codification processes in Chile and Brazil are significant because of the
great influence of the Chilean code on those of many of other Latin
American countries and because of the size and influence of Brazil
generally in Latin American affairs and the uniqueness of its situation as a
former Portuguese colony.
• The NCC was adopted by by Colombia and Ecuador, and was used as a
model for the civil codes of Argentina, Paraguay, Venezuela, El Salvador,
and Nicaragua.
• The Chilean code, which has undergone major revisions since its mid-
nineteenth-century adoption, primarily by later legislation, still remains in
force.
Philip II (1603)
• The ordinances made were covered by many aspects of private
and criminal law based on Roman law, canon law, customary law,
municipal charters and statutes, and early Portuguese legislation.
 Characterized by legalism and formalism. And it resulted with legal codes.
 “greatest monument to legal thought and codification in Latin America.”
 (1) general principles,
 (2) the law of persons, things, and rights, and
 (3) the law of family, property, obligations, and succession. It has been amended
by legislation since its promulgation, primarily in the area of domestic relations,
but it is still in force.
The Development of the Role of
Jurists in Modern Systems
• civil codes, based as they are on the Corpus Juris Civilis
• reasoning process from code provisions is deductive—one arrives at conclusions
about specific situations from general principles
• jurists apply deductive reasoning to suggest an appropriate judgment or result in
specific cases. Historically their work took the form of treatises and
commentaries that became the “doctrine” used by judges in their deliberations
about specific cases, lawyers for advice to their clients, and legislators in the
preparation of statutes and regulations.
Pontes de Miranda
• rote many books on Brazilian law that are referred to in Brazilian judicial
opinions and used in the drafting of Brazilian legislation
• Treatise on Private Law, consists of sixty-two volumes of commentary
on the civil code.

condition of the sixteenth- and seventeenth-century German courts, staffed by lay judges untrained
and unsophisticated in the law
law professors, the academic jurists in Germany.
The German professors were writing the decisions according to their own developed doctrine.
Evolution in france
• The monarchy encouraged legally trained men into the judiciary.
• French legal scholars and law professors were never able to achieve
the standing and power accorded their colleagues in Germany.
• The leading jurists of the pre-Napoleanic period in France, Charles
Dumoulin (1500–1566) and Robert Pothier (1699–1772), were not
law professors. Dumoulin was an advocate and later “consultant,” and
Pothier was a judge for over fifty years of his long professional life.
Contrast of german and French jurist
• With reference to appellate cases
• Both cases involve an issue of tort liability of individuals involved in
concerted activities.
• French decision is cryptic, containing only about 500 words and citing only
two sections of the code and no doctrinal treatises. The German decision is
longer—about 2,000 words—with a
• more lengthy analysis of the issues, and cites not only relevant code
provisions, but the writings of at least three German jurists
• The two cases are also instructive about the role of precedent in these
countries. The French decision contains none, and the German decision
only three.
 Part II: TheFunctions in the
System As It Exists and
Functions in the Modern Era
The Private Law – Public Law Dichotomy
• The fundamental division in modern civil-law systems is that between
private and public law.

• As exemplified in the 17th and 18th century civil codes, Private law is
that area of the law in which the sole function of the government was
recognition and enforcement of private rights.

• Thus, today private law includes at least the civil and commercial
codes.
The Private Law – Public Law Dichotomy
• Public law focuses on the effectuation of the public interest by state
action

• Today, Public law includes at least what common law attorney would
recognize as constitutional law, administrative law, and crminal law.
The Private Law – Public Law Dichotomy
• Public Law generally is not part of comprehensive civil codes.

• Public Law consists of various statutes, supplemented liberally by

judge-made norms, that regulate the organization and function of
public authorities and the relationship between public agencies and
invdividual citizens.

• Public Law tends to be more fluid than the civil codes since it change
rapidly in reponse to political forces.
Court Structure

• Typical Civil-Law Judicial System would be represented as a set of two

or more distinct structures with no bridge in between.

• As a general matter, a system of ordinary courts, staffed by ordinary

judges, adjudicates the vast majority of civil and criminal cases.

• Ordinary Courts are the modern administrative state.

Court Structure

• A Common-Law judicial system may be drawn as a pyramid with the

“highest” court on top.

• A Civil-Law judicial system would be represented as a set of two or

more distinct structures with no bridge between them.
Court Structure
Ordinary Courts

• Is staffed by ordinary judges that adjudicates the vast majority of civil

and criminal cases.

• They are the modern-day successors of the various civil courts that
existed in Europe.

• Jurisdiction expanded to include matters formerly addressed by the

ecclesiastical tribunals, as well as commercial disputes.
Court Structure

French System
• The apex of the ordinary court is First Level of French Court consists
the Cour de Cassation (Supreme of:
Court of Cassation).
• General Civil
• The court reviews on a
discretionary basis, only questions • Criminal trial courts
of statutory interpretation. • Specialized Courts
• Cour de Cassation is composed of
100 judges who sit in six rotating
specialized panels.
Court Structure
German Model
• Relies on several independent court systems, each with its own
supreme court.

• There are separate systems of labor courts, tax courts, and social
security courts.

• The lower courts sit in panel of 3 professional judges.

The Legal Process
Civil Procedure

• The judicial proceedings are public and controlled by the parties.

• Civil-Law judges supervises and shapes the fact finding process.

• Civil Process is conducted primarily in writing and trial.

The Legal Process
Civil Procedure

• A lawyer must submit “articles of proof” to the judge and the opposing
counsel.
• Opposing counsel’s role is to make certain that the record of summary
of the testimony is complete and correct.
• The parties must submit proposed evidence to the judge in writing or
in oral hearings.
• The judge delivers rulings concerning the relevance and admissibility of
the evidence
The Legal Process: Criminal Procedure
Three Phases in Criminal Proceeding

• Investigative Phase
• Examining Phas
• The Trial
The Legal Process
Appellate Procedure

• Intermediate appellate courts may obtain additional testimony,

supervise the collection of new evidence, and seek out expert
opinions.

• Intermediate appellate review in civil-law tradition often involves a de

novo review of both the facts and law of the case.
Legal Process
Appellate Procedure

• Appellate courts of last resort, generally consider only question of law.

• French System of “Cassation”, the court decides only the question of law
that has been referred to it, not the case itself.

• The Court of Cassation may either affirm the lower court decision or
remand the case for reconsiderafion to a different lower court.
Legal Process
Appellate Procedure

• The remand court is free to decide the case the same way as the
previous lower court.

• If that occurs, 2nd appeal may be taken to the Court of Cassation,

which will then sit in plenary session.

• The court may then issue a dispositive ruling in some case to a third
lower court to issue the judgment.
Legal Process
Appellate Procedure

• In the German System, the high court may reverse, remand, and
modify the lower court decision and enter the judgment itself.
Legal Actors: Tradition and Transition
Legal Scholars

• According to legal folklore, the legal scholars does the “basic

thinking” for the legal system.

• Judges and legislatures, look to legal scholars for definitve views on

the law.

• Legal scholarship is not a formal source of law, but the “doctrine” as

developed by scholars is highly valued in the civil-law tradition.
Legal Actors: Tradition and Transition

The Legislature

• The Legislature in the civil-law tradition strives to suppliment and

update the codes in those areas in which the legal scholars have
suggested that codes are defective or incomplete.
• New Legislation employes the concepts and follows the structures
established by the legal scholars and embodied in the earlier codes.
• Legislatures seek completeness and clarity, attempting to produce
laws that are consistent with the tenets of the legal science and
compatible with established legal order.
Legal Actors: Tradition and Transition
Judges

• Judges typically enter judicial service at the lower levels of the

judiciary. Theyenterd directly from law school after passing state
qualifying examinations.

• Judge’s role is limited by strict notions of legislative supremacy.

• Civil Law Judges are the operators of the system designed by legal
scientists and built by the legislators.
Legal Actors: Tradition and Transition
Legal Education and Lawyers
• Courses tend to focus on general legal principles, as opposed to
professional skills and problem solving.

• Practical skills are acquired through apprenticeship.

• Tradition of legal science, civil-law students study legal treatises that

expound the established principles of the law with little case-method
analysis.
Legal Actors: Tradition and Transition
Legal Education and Lawyers

• Civil-Law students choose among the several branches of the legal

profession.

• These choices include a career as a governement lawyer or in private

legal practice.
Legal Actors: Tradition and Transition
Legal Education and Lawyers

• Private legal practice is divided between the advocate and the notary.

• Private Lawyers are generally governed by Mandatory Bar

Associations.
Legal Actors: Tradition and Transition
Legal Education and Lawyers

• The Advocate meets with and advices clients, and represent them in
court.

• Advocates generally serve as apprentices to experienced lawyers for

several years after law school.

• Advocates practices law in small firms or as solo practitioners.

Legal Actors: Tradition and Transition
Legal Education and Lawyers

Three basic function of a Notary Lawyer:

• Drafting legal documents.

• Authenticating documents.
• Keeping records on or providing copies.
Legal Actors: Tradition and Transition
Legal Education and Lawyers

• Government lawyers serves either as a public prosecutors or as a

lawyer for government agencies.

• Prosecutors in civil-law tradition, prepares the government’s case in

criminal matters.

• Prosecutors represent the public in some civil cases.

Transition in the Civil-Law World
• Legislative practice often falls • As a result, judges frequently
short of its objective to provide a must interpret vague code
clear, systematic legislative sections.
prescription for every legal
problem that may rise.
Transition in the Civil-Law World
Merryman:

• The folklore is clearly losing its power, but until some new,
acceptable, coherent view of the legal process appears to replace it, it
will continue to occupy the field. It is still the residual model of the
legal process, and even scholars who recognize that this model is not
working spend moe effort trying to perfect its basic design than in
trying to design a better model.
 PART III
The Common Law and a Comparison of the Civil Law and Common Law
Systems
Origins of the Common Law System
Institution of the Jury System
o Ancient Greece had a procedure analogous to the modern system
Medieval France and was connected to Royal Power
Frankish kings
o “The best and most trustworthy in the district”
o Sworn in
o Substitute for trial by battle or ordeal
William the Conqueror
o Conquest in 1066
o The practice of a sworn inquest, usually involving land, was adopted a feature of government
Doomsday Book
o The record of boundaries of the land in England
o 1081 and 1086
o Compilation of jury verdicts about boundaries
First guise in England
o Jury, A group of persons usually local citizenry or body of neighbors
o Summoned by a public official
o “whatever the truth may be”
 Origins of the Common Law System
 Henry II
o 1164
o “normal part of the machinery of justice”
o jury trials for persons dispossessed of lands
 King John
o 13th Century
o Criminal cases
o 1215 at Runnymede, Magna Carta
 William the Conqueror
 Conquest in 1066
 The practice of a sworn inquest, usually involving land, was adopted a feature of government
 Roman Law
o Carried early to Britain by scholars and teachers
o Italian universities
 Vicarious
o A master at Bolgna
o Justinian’s Code and Digest
Origins of the Common Law System
 Jury trial as a mechanism for resolving disputes
 Creation of royal courts
o to dispense justice throughout the realm
o Trained judges to preside and administer them
o Rising of commercial affairs in London
o Turning away from Roman and ecclesiastical law
 The inn of Court
o A new institution created by Judges and lawyers in London
o To train lawyers in adversary practice and the art of advocacy
 Other Characteristics of the new system
o The expansion of jury trials to more types of civil cases
o Reliance by judges on precedent
o Inductive reasoning on precedent to create the substance of the law
o Legal norms
o The common law system was being born
 Canon Law
o Oxford, later at Cambridge
Jurists in the Common Law System
Elevated importance of judicial precedent
Three generalizations
o 1. the majority of jurists, have been judges
o 2. legal writings of jurists
o 3. treaties ad commentaries of jurists
Great works of legal literature in the United States
o Treaties of Samuel Williston
o Arthur Corbin on the law of contracts
o John Wigmore on the law of evidence
Restatement of the Law series
o Collective work of law professors, judges, and lawyers of the American Law Institute
o Influenced the development of substantive law in some areas
Uniform Code series
o Series of codes for individual states in the United States
o Stand as a model for individual state legislation
o Could also be attributed to the collective efforts of jurists
Common law is open ended and antithetical to system building of the type found in civil
law countries
 Difference in the Two Systems
• Common Law system
• Statutes
• Sometimes collected in codes
• An ad hoc process over many years
• Reflect the rules of law enunciated in
judicial decisions
• The codification relating to the
development of legal principles
• In common law countries, precedent has been
elevated to a position of supreme prominence
• common-law judges instinctively reach for
casebooks to find the solution to an issue in a
case
• Methods of legal reasoning
• In common-law countries the process is the
reverse—judges apply inductive reasoning,
deriving general principles or rules of law
from precedent or a series of specific
decisions and extracting an applicable rule,
which is then applied to a particular case
• Civil Law system
• Comprehensive codes
• Abundance of legal topics
• Sometimes treating separately private law,
criminal law, and commercial law
• The codification relating to the
development of legal principles
• the role and influence of judicial precedent,
at least until more recent times, has been
negligible the role of judicial decisions in the
making of law, and the manner of legal
reasoning
• civil-law judges or their scholar-advisers
initially look to code provisions to resolve a
case
• Methods of legal reasoning
• In the civil-law tradition, the reasoning
process is deductive, proceeding from stated
general principles or rules of law contained
in the legal codes to a specific solution
 Difference in the Two Systems
• Common Law system
• Structures of court
• favors integrated court systems with
courts of general jurisdiction available to
adjudicate criminal and most types of
civil cases, including those involving
constitutional law, administrative law,
and commercial law
• Role of the judge in the trial process
• as the manager of the trial (and “referee”
of the lawyers acting in an adversary role)
is secondary to that of the lawyers, who
are the prime players in the process,
introducing evidence and interrogating
witnesses
• They are able to search creatively for an
answer to a question or issue among
many potentially applicable judicial
precedents
• Civil Law system
• Structures of court
• it follows the tradition of separate codes for
separate areas of law, favor specialty court
systems and specialty courts to deal with
constitutional law, criminal law, administrative
law, commercial law, and civil or private law
• Trial Process
• the single-event trial is unknown, and trials
involve an extended process with a series of
successive hearings and consultations for the
presentation and consideration of evidence.
• Role of the judge in the trial process
• the judge assumes the role of principal
interrogator of witnesses, resulting in a
concomitant derogation of the role of lawyers
during the trial
• They view themselves less as being in the
business of creating law than as mere appliers of
the law
• They merely applies the applicable code
provisions to a case, with little opportunity for
judicial creativity and often with the assistance
of legal scholars and legal scholarship
 Difference in the Two Systems
• Common Law system
• How judges are selected and trained
and in their legal education
• They are generally selected as part of the
political process for a specific judicial
post that they hold for life or for a
specified term, with no system of
advancement to higher courts as a
reward for service.
• The tradition of legal training
• the study of law is almost always post-
graduate.
• The law student is exposed to other
disciplines prior to matriculation in the
law school
• Civil Law system
• How judges are selected and trained
and in their legal education
• the judiciary is usually part of the civil
service of the country
• a recent law graduate selects the
judiciary as a career and then follows a
prescribed career path
• The tradition of legal training
• the study of law at a faculty of law
follows graduation from high school, with
no intermediate education in the liberal
arts or other fields of learning, and with
little or no exposure to subjects taught in
other departments of a university
• a student at a faculty of law rarely has a
baccalaureate degree
 Conclusion
• Common Law system
• the common law lawyer, by and large,
simply doesn’t care whether such a
[comprehensive, logical, legal] system
exists or not.
• He is busy deciding cases, with the aid
of judicial precedent and with or
without the aid of statutory
enactment of rules in particular cases.
• Civil Law system
• law students are taught that law is a science,
and that the task of the legal scientist is to
analyze and elaborate principles which can
be derived from a careful study of positive
legislation into a harmonious systematic
structure.
• The components of this system are believed
to be purely legal, a set of ultimate truths
related by rigorous deductive logic.
• Hence, the legal scientist’s inquiry is almost
exclusively directed towards the legal norm.
It is hard for the legal scientist to escape the
feeling that consideration of non-legal facts
detracts from his search for absolute
principles and the true nature of legal
institutions.
LOGIC FOR LAW STUDENTS

How to Think Like a Lawyer

LAW SCHOOLS NO LONGER
TEACH LOGIC
 DISCUSSION FLOW

1. Examining the basics of the deductive syllogisms

2. Basics of inductive generalizations
3. Uses and Abuses of Analogies
 LOGIC

The science of reasoning, or of the operations of the understanding

which are subservient to the estimation of evidence.
-Black Law Dictionary
 IN THE LAW ACADEME, LAW
PROFESSORS REQUIRE THEIR
STUDENTS TO DEFEND THEIR
COMMENTS WITH COHERENT,
IDENTIFIABLE LOGIC
DEDUCTIVE REASONING
 A METHOD OF REASONING BY
WHICH YOU START YOUR
ARGUMENT WITH A PREMISE AND
YOU GO TO ANOTHER PREMISE, AND
THESE PREMISES LEAD TO A
CERTAIN CONCLUSION.
 APPLICATION

1. State the general rule of law or widely-known legal rule that

governs your case (Major Premise)
2. Describe the key facts of the legal problem at hand (Minor
Premise)
3. Examining how the major premise about the law applies to the
minor premise about the facts (Conclusion)
 BOGUS ARGUMENTS

• Usage of these indefinite prepositions:

“some”, “certain”, “a,” “one,” “this,” “that,” “sometimes,” “many,”
“occasionally,” “once,” and “somewhere.”
• Syllogisms that does not make sense
INDUCTIVE REASONING
 A FORM OF LOGIC IN WHICH BIG,
GENERAL PRINCIPLES ARE DIVINED
FROM OBSERVING THE OUTCOMES
OF MANY SMALL EVENTS.
 DANGERS OF INDUCTIVE REASONING

• Fallacy of Hasty Generalization

- happens when there is a creation of a general rule coming from the bases of
inadequate particulars.
- this cannot be avoided because it is impossible to achieve absolute certainty, at least
with inductive reasoning
- EXAMPLE:
(O’Conner v. Commonwealth Edison Co.)
ANALOGY
 IT IS THE COMPARISON
BETWEEN PERSONS, PLACES,
OBJECTS, OR IDEAS FOR THE
PURPOSE OF EXPLANATION
 THREE-STEP PROCESS OF ANALOGICAL
REASONING

1. establish similarities between two cases

2. announce the rule of law embedded in the first case
3. apply the rule of law to the second case.
 YOU MAY NOT CONCLUDE
THAT ONLY A PARTIAL
RESEMBLANCE BETWEEN TWO
ENTITIES IS EQUAL TO A
SUBSTANTIAL OR EXACT
CORRESPONDENCE.
 CRITERIA FOR APPRAISAL OF
ANALOGICAL ARGUMENT

1. the acceptability of the analogy will vary proportionally with the

number of circumstances that have been analyzed
2. the acceptability will depend upon the number of positive
resemblances (similarities) and negative resemblances
(dissimilarities)
3. the acceptability will be influenced by the relevance of the
purported analogies.
 IMPORTANCE OF ANALOGY IN LAW
SCHOOLS

• Helps students answer questions that cannot be solved by only using

syllogisms.
• To probe the boundaries of an issue
• Encourages students to read further the provisions of the law with
due care and absorb its contents
THERE IS MORE TO LIFE THAN
LOGIC
 DISCOVERING
THE LOGIC OF
LEGAL REASONING
R U L E O F L AW
 Q UA L I T Y O F L E G A L R E A S O N I N G

REQUIREMENTS:
 SIMILAR CASES SHOULD BE
D E C I D E D S I M I L A R LY
 DECIDED ON ITS MERITS
 C O M P LY W I T H A P P L I C A B L E R U L E S
OF PROCEDURE AND EVIDENCE
ACHIEVING OBJECTIVE RATIONALE
TRANSPARENT decision-making + OPEN to
SCRUTINY = OBJECTIVE RATIONALE
LEGAL REASONING
I T I S A R E A S O N I N G I N V O LV E D I N :

 INTERPRETING CONSTITUTIONS
 S TAT U T E S
 R E G U L AT I O N S
 B A L A N C I N G F U N D A M E N TA L P R I N C I P L E S A N D
POLICIES
 ADOPTING AND MODIFYING LEGAL RULES
 A P P LY I N G T H O S E R U L E S T O C A S E S
 E V A L U AT I N G E V I D E N C E
 M A K I N G U LT I M AT E D E C I S I O N S
We are not like mathematicians. We are
also unlike statisticians. Nor do we act
like natural and social scientists. . Nor do
we take the approach of the medical
profession.
We largely content ourselves with
IN THE
“knowing good legal LEGAL
reasoning when we see it.” PROFESSION

RESULT: existing an isolated pockets of

theoretical work on legal reasoning
methods.
W H AT I S M I S S I N G ?
C O N C E RT E D E F F O RT W I T H I N
O U R P R O F E S S I O N TO
A RT I C U L AT E T H E G E N E R A L
LOGIC OF OUR METHOD OF
REASONING
THE MOST COMMON SCENARIOS FOR NOT
OBTAINING A USEFUL NORMATIVE
METHOD
• Most legal educators, however, • Seldom develop general
merely illustrate reasoning by accounts that explain to
exhibiting a stream of students how lawyers ought
examples (both historical and to reason and why
hypothetical), leaving it to the
student to abstract from
those examples “how to think
like a lawyer.”
LEGAL REASONING
 E X H I B I T D I S T I N C T I V E F E AT U R E S T H AT M E R I T
L O G I C A L A N A LY S I S

 D E M A N D S O F T H E R U L E O F L AW +
T H E P R A G M AT I C N AT U R E O F L E G A L
REASONING = DISTINCTIVE
PAT T E R N S O F R E A S O N I N G
1. Rule-based

}
found in
reasoning
law, exhibit
distinctive
logical
2. Evidence evaluation features
found in law, exhibit THREE TYPES
distinctive logical
OF LEGAL
features
can modify REASONING
both rule-
based
3. Second-order reasoning and
process reasoning evidence
evaluation.
 STRUCTURE OF THE LEGAL
COMMUNITY
 A vital factor for it promotes the evolution of reasoning
patterns that are well-adapted to the task of solving legal
problems.
 Empirical research is needed to discover the actual
patterns that have evolved
 T H E P R A G M AT I C
N AT U R E O F
LEGAL REASONING
ISSUE
Legal profession has not found traditional formal logic very useful

CAUSE
that logic tracks the deductive reasoning of mathematics, and not the practical
reasoning we actually employ in law.
 3 SENSES IN
1. Reasoning is action-oriented WHICH WE
2. It balances the “epistemic EMPLOY
objective” of law against the PRAGMATIC
applicable “non-epistemic REASONING
objectives TECHNIQUES
3. Legal decision-making occurs in
real time, uses limited resources, These three pragmatic
and is usually based on dimensions of legal
incomplete information reasoning dictate
certain features of its
logic.
Examples:
 We use it to make legal arguments about
the legitimacy of governmental action or
inaction.
 When judges decide cases or administrative
agencies adopt new regulations, they must
interpret constitutional, statutory, or 1. REASONING
regulatory texts, and balance legal principles
against substantive policies IS ACTION-
ORIENTED.
Legal reasoning is therefore pragmatic in
the sense that its ultimate subject matter
is governmental action, and is almost
always about justifying decisions leading
to such action.
Epistemic objective - produce determinations of fact 2. IT BALANCES
that are as accurate as possible and which are
warranted by the legally available evidence T H E “ E P I S T E MIC
Example: The epistemic side of law aims at truth, O B J E C T IV E ” O F
but a truth constrained by reasonable inferences
from the evidence.
L AW AG A I N S T
THE
Non-epistemic objectives A P P L I C AB L E
Examples: common across governmental “NON-
institutions and proceedings (for example,
procedural fairness or administrative efficiency),
E P I S T E MIC
while others are limited to particular institutions O B J E C T IV ES .
and proceedings (for example, achieving an adequate
supply of electric power, or increasing economic
efficiency within securities markets). Legal reasoning is pragmatic
because it must incorporate
Weighed against this epistemic objective such balancing and must reason
are numerous non-epistemic objectives. about appropriate balancing.
The decision-maker has to evaluate, at
3. LEGAL
each stage of the process, whether the
D E C I S I ON -
evidence is complete enough, whether M A K I NG O C C U R S
the residual uncertainty is acceptable, IN REAL TIME,
and whether action should be taken USES LIMITED
or postponed R E S O U R C ES , A N D
Example: A prosecutor could always I S U S UA L LY
BASED ON
conduct more investigation and a
I N C O M P L ET E
regulator could always obtain more I NF O R M AT IO N
scientific studies.
THEORIES ABOUT THE
LOGIC OF LEGAL
REASONING MUST BE
USEFUL IN ORDER TO
B E N O R M AT I V E
RULE-BASED
REASONING
RULE-BASED LEGAL REASONING
• A particular type of reasoning which uses "if-then-else" rule statements.
• In this type of conditional schema, a legal rule states that if proposition p (the condition) is true
then this fact warrants that proposition q (the conclusion) is also true.
• A major feature of rule-based legal reasoning is the distinction between prima facie case and
affirmative defense.
• EXAMPLE: Self-defense. In a self-defense case, there are requisites that must be met in order
for such act to be considered as self-defense.
• Another feature of rule-based legal reasoning that challenge traditional deductive logic is the
possibility of changing the rules themselves as a result of reasoning.
• EXAMPLE: Common law systems. Their courts have inherent authority to elaborate new legal
rules that apply tot he very case being decided, as well as to future cases.
EVIDENCE
EVALUATION
EVIDENCE EVALUATION
• Legal rules identify those issues of fact that are relevant to proving the ultimate issue of fact.
• In any particular case, various participants (such as private parties, prosecutors, or
administrative staffs) produce evidence for the legal record, and use that evidence to try to
prove or disprove those issues of fact.
• Role of the factfinder is evidence evaluation: deciding which evidence is relevant to which issue
of fact, evaluating the probative value of the relevant evidence, and making findings of fact based
on evidence.
• Hence, evidence evaluation studies the methods and principles for the inferential aspects of
the factfinder’s task. It explains the reasoning that a reasonable factfinder would use to
determine the probative value of evidence.
• Basic building block of evidence evaluation is the PROPOSITION.
• Propositions which constitutes the evidence.
• EXAMPLE: Statements made my testifying
witnesses or statements contained in
documents that are admitted into evidence E V I D E N T I A RY
• Although evidentiary assertions are A S S E RT I O N S
propositions, and therefore capable of being OR
either true or false, factfinders are permitted A S S E RT I O N S
to assign them degrees of plausibility
(plausibility-values) instead of truth-values.
CHALLENGES THAT EVIDENCE
EVALUATION POSES IN FORMULATING
USEFUL NORMATIVE LOGIC
• 1. EXPLAINING HOW WE REASON ABOUT “RELEVANCE” ITSELF- how we decide to link
particular evidentiary assertions to particular fact.
• II. STUDYING THE LOGICAL PROPOERTIES OF DIFFERENT PLAUSIBILITY SCALES.
• III. COMBINING PLAUSIBILITY-VALUES OF NUMEROUS EVIDENTIARY ASSERTIONS INTO
A SINGLE PALUSIBILITY-VALUE FOR A PARTICULAR CONCLUSION.
• These are complicated problems in law because factfinders must be able to integrate both
non-expert and expert evidence into a single pattern of reasoning.
• In logic, a ”schema: is a formal linguistic pattern containing variables, so that appropriate
substitutions for the variables create instances of the pattern.
• PLAUSIBILITY SCHEMA- a pattern of default reasoning that, when instantiated, warrants the
conclusion to be plausible.
• EXAMPLE: the schemas of deductive logic (such as modus ponens), which necessarily preserve
truth from premises to conclusion, also preserve plausibility from premises to conlusion.
SECOND -ORDER
PROCESS
REASONING
SECOND-ORDER PROCESS
REASONING
• Legal decision making is a process governed by the rule of law and a third area of legal reasoning
that grants conclusions on the structure of that process. Process rules allow the decision making
process to be dynamic, participatory and interactive. Different participants can play different roles,
with divisions of labor and responsibility, ideally within a single, fair and efficient process.
2 types of processing decisions and rules governing decisions
• Procedural rule - addresses issues as general as jurisdiction, or as specific as the appropriateness of
particular filing. Procedural decisions based on those rules orchestrate the dynamics and timing of
the decision making process.
• Evidentiary rule – addresses issues about the evaluation of evidence, such as the admissibility of
evidence, the legal sufficiency of evidence, and burdens of proof. Evidentiary decisions based on the
those rules manage various tasks involved in evidence evaluation, and allocate them to various
participants in the process.
FEATURES OF REASONING AND DECISION-
MAKING PROCESS
• “Second-order” reasoning - the proposition of stating substantive legal rules or about
evidentiary assertions in a particular case.
• Policy-based reasoning – the integration of the content on policies and principles, would
formulate methods for weighing many divergent lines of reasoning in warranting decisions
about particular rules.
• Analogical reasoning – the practice that addresses concerns for deciding similar cases similarly
overtime for maintaining predictability of outcome and for providing due notice potentially
affected parties. It should capture the kinds of reasons that courts routinely give for
considering two cases to be similar and for distinguishing one case from another.
CONCLUSION

• The goal of this is to be suggestive but open-ended about discovering the logic of legal
reasoning. Legal reasoning patterns evolve is intended to spur a desire for empirical research.
We in the legal profession have little incentive to engage in such research if we do not sense a
need for it and if we do not sense that reasoning we apply to legal problems that has a
distinctive and coherent structure, we are unlikely to study that structure. What we need is a
professional awakening to the possibility of discovering a useful logic of legal reasoning.
 LOGIC AND LEGAL
REASONING:
A GUIDE FOR LAW STUDENTS

DENISE MICHAELA YAP

• In order to exhibit “pristine logic” a legal statement should
adhere to the form of the logic syllogism.

• A SYLLOGISM consists of a MAJOR premise, MINOR premise,

and a CONCLUSION.

• In legal arguments, this is generally a STATEMENT OF LAW.

WHAT CONSISTS OF A MAJOR PREMISE, A MINOR
PREMISE AND A CONCLUSION?
MAJOR PREMISE
Usually states a general rule
In legal arguments, this
process is called applying the
law to the facts.
MINOR PREMISE
Makes a factual assertion about a
particular person or thing or a
group of persons or things.
In legal arguments, this is usually a
statement of fact.
CONCLUSION
Connects the particular statement
in the minor premise with the
general one in the major premise,
and tells us how the general rule
applies to the facts at hand.
 EXAMPLE
To qualify as a “citizen” of a state for purposes of diversity
jurisdiction, a party must
1.currently reside in that state and (2) intend to remain there
indefinitely.
(Major premise; states a rule of law.)
2. Here, the plaintiff does not currently reside in North Carolina
(Minor premise; makes a statement of fact.)
3. Therefore, the plaintiff cannot be a “citizen” of North Carolina for
jurisdictional purposes.
(Conclusion; correctly applies the law to the facts.)
A SYLLOGISM is valid if, given the truth of its premises, the conclusion “follows”
logically such that it, too, must be true.

Note that an argument is not valid simply because its premises and conclusion are
all true.
Example:
“All cats are mammals.
Some mammals are excellent swimmers. Therefore, some cats
are excellent swimmers.”
The example above is a fallacious argument. Learning how to spot and avoid such
logical fallacies can enormously strengthen your legal writing and advocacy by helping
you adhere to the “pristine logic” of correct syllogistic reasoning.
 “[A]rguments, like [people], are
often pretenders.”
– Plato

WHAT ARE “Fallacious and misleading

FALLACIES? arguments are most easily detected
if set out in correct syllogistic form.”
- Immanuel Kant
 A fallacy is an error in reasoning.
A fallacious argument is one that may appear
correct, but on examination proves not to be
so. Even if the premises and conclusion are all
correct, an argument may still be fallacious if
the reasoning used to reach that conclusion is
not logically valid.
 Fallacies are extremely common.
At first blush, they often seem persuasive. Because legal
arguments can be quite complex, fallacies can be especially
hard to detect in legal memoranda, briefs, and judicial
opinions. Knowing how to spot and avoid them can improve
your legal writing and advocacy immeasurably.
There are fifteen types that occur most frequently in legal writing
and advocacy.

Most of these fallacies may be

grouped in two broad categories.

Fallacies of ambiguity occur when

Fallacies of relevance occur when
the meaning of a key word or
the premises “miss the point” and
phrase shifts and change, so that
fail to provide logical support for the
the terms do not really “match up”
conclusion.
within the argument.
 1. Appeal to Inappropriate Authority.

This fallacy arises when the authority invoked has no legitimate

claim in the matter at hand. In legal writing, this fallacy occurs
when we cite a secondary authority or a case from another
jurisdiction as controlling authority. It also occurs when we cite
the opinion of an expert in a matter outside his or her
expertise.

Example: “The possession of nuclear weapons is a moral

abomination. Even Edward Teller, the ‘father of the hydrogen
bomb,’ urged the United States to halt production once the full
extent of their destructive power became known.”
 2. Disconnected Premises.
In a standard logic syllogism, there must be exactly three basic concepts: a “major term” that
occurs in the major premise, a “minor term” that occurs in the minor premise, and a “middle
term” that occurs in both the major and minor premises, but not in the conclusion. (The
conclusion should connect the major and minor terms.)

The middle term is the glue that holds the argument together. That glue must be applied in
the right places, or the argument will fall apart.

In a typical legal syllogism, the middle term will consist of either the elements of a cause of
action or the definition of some term of art.

Example: “Murder is the intentional killing of a human being. State v. Jones, 12 N.C. 345, 34 S.E.2d 56 (1929). Here,
the defendant is an escaped convict who was already serving a life sentence for the murder of a police officer and was
apprehended just two miles from where the victim’s body was found. Therefore, the defendant is guilty of murder.”
 3. Irrelevant Conclusion.
This fallacy occurs when the premises “miss the point” and fail to
substantiate the conclusion, instead supporting some other, perhaps
unstated, conclusion. Often, this fallacy arises when we advocate for a
particular objective, but offer only generalized support for that objective
that could equally well support an alternative approach. An irrelevant
conclusion may also be called a non sequitur.

Example: “There is no such thing as a leaderless group. Although the style of

leadership may change depending on the situation, a leader will always emerge
or no task would ever be accomplished.”
 4. False Cause

This fallacy consists in treating something as a cause that is not, or

should not be assumed to be, a cause.

Most commonly, the mistake is in assuming that A caused B simply

because A preceded B.

Example: “The defendant fled the state just hours after the crime
was committed. Therefore, he was clearly involved in one way or
another with its planning or execution.”
 5. Overzealous application of a general rule.

This fallacy occurs when we apply a generalization to an individual case

that it does not necessarily govern. The mistake often lies in failing to
recognize that there may be exceptions to a general rule.

Example: “Sixty men can do a job sixty times as quickly as one man.
One man can dig a post- hole in sixty seconds. Therefore, sixty men can
dig a post-hole in one second.”
 6. Hasty Generalization

This fallacy is the converse of the preceding one.

It occurs when we move too quickly to establish a broad principle or

general rule based on specific factual observations.

Example: “In the present case, the dog that attacked the small child
clearly had a ‘vicious propensity.’ Two years earlier, that same dog had
bitten a postal worker who came on the property to deliver the mail.”
 7. Circular argument

This fallacy occurs when one assumes the truth of what one seeks to prove in the very effort
to prove it. In other words, an argument is fallacious when the conclusion lies buried in the
premises used to reach that conclusion.
This is also known as begging the question. Question-begging arguments often mask
themselves in clever rhetoric.

They can be easy to miss because they often sound good. Read these examples closely, and
see if you can identify why each is fallacious before you read the explanation immediately
following.

Example: “The Supreme Court’s power of judicial review is inherently

undemocratic. When unelected judges reign supreme in the exposition of the
Constitution, it cannot be said that we have a government ‘of the people, by
the people, and for the people.’”
 8. Complex Question

This fallacy occurs when the question itself is

phrased in such a way as to presuppose the
truth of a conclusion buried in that question.
The solution is generally to root out the buried
assumption by “dividing the question.”

Example: “Isn’t it true that your sales

increased dramatically after these
misleading advertisements were
published?”
 Example: Jonathan Swift said: “No
man will take counsel, but every
man will take money; therefore,
money is better than counsel.”

9. Ambiguity.
When we use a key word or phrase to have two or more
different meanings in the same argument, we commit
the fallacy of ambiguity. Because many words and
phrases are naturally ambiguous (have two or more
meanings, or even a range of meanings), this fallacy
often escapes notice.
 10. Composition
We commit the fallacy of composition when we mistakenly impute the attributes of a part of a
whole to the whole itself.

Example: “A strand of rope is weak, and cannot possibly support the weight of a full-grown
person. A rope is nothing but a collection of weak strands. Therefore, a rope cannot possibly
support the weight of a full-grown person.”
12. Argument from Ignorance. An argument is fallacious when it maintains that a proposition is true because it has not been proved false
or false because it has not been proved true.
Example: On the Senate floor in 1950, Joseph McCarthy said of a State Department employee suspected to be a Communist, “there is
nothing in the files to disprove his Communist connections.”

13. Attack Against the Person. This fallacy occurs when the thrust of an argument is directed, not at a conclusion, but at the
person who asserts or defends it. This is sometimes referred to as an ad hominem argument.
Example: A lawyer tells a jury that evidence of a witness’s criminal past proves that the witness was lying.

14. Argument from Force. An argument is fallacious when it substitutes veiled threats for logical persuasion or when it asserts that something
must be the case because “that’s just the way things are.”
Example: White House Chief of Staff Howard Baker once opened a cabinet meeting over allegations of misconduct on the part of Attorney
General Ed Meese as follows: “The President continues to have confidence in the Attorney General and I have confidence in the Attorney
General and you ought to have confidence in the Attorney General, because we work for the President and because that’s the way things are.
And if anyone has a different view of that...he can tell me about it because we’re going to have to discuss your status.”14

15. Appeal to Emotion. This fallacy occurs when expressive language designed to excite an emotion like outrage or pity is used
in place of logical argumentation.
Example: “It is time to put an end to these ‘creative’ accounting practices. Millions have lost their pensions due to the excesses
of these corporate elites. Hopes have been dashed. Lives have been ruined. This cannot be allowed to continue. For all these
reasons, I urge you to find the defendant guilty as charged.”