BARTOSZ BROEK

LEGAL LOGIC. MYTHS AND CHALLENGES

1. Introduction
The controversy over the role of logic in legal reasoning dates back to the 19th Century.
The proponents of legal positivism, endorsing the syllogistic structure of legal thinking, put forward the claim that logic is an essential tool in the legal arsenal. This claim
was strongly opposed by scholars belonging to various schools and supporting differing views of the nature of law. Among them, one should mention legal realists, the representatives of the school of the free law, the Critical Legal Studies Movement, or the
proponents of the topic-rhetorical conception of legal reasoning.14 I believe, however,
that in most cases the debates between the proponents and the opponents of using
logic in legal discourse were of no real signicance; these were rather pseudo-controversies, based on a number of false assumptions and misinterpretations.
Below, I would like to review the most fundamental misunderstandings and myths
surrounding the application of logic in law. They are mostly of a theoretical or meta-theoretical character. In the concluding section I shall raise the question of whether
a specically legal logic exists.

2. The myth of inadequacy

The thesis that all kinds of legal reasoning have a syllogistic (logical) structure is not
a descriptive one; if it were so, the thesis would be evidently false, as it is easy to provide examples of arguments utilizing norms which are logically incorrect. To put it
differently, the only reasonable way of understanding the claim pertaining to the logical character of legal reasoning is to treat it as normative: it says how legal reasoning
should look like. It is only on this reading that the thesis may become the subject for
fruitful debate.
Thus, a number of objections levelled against the thesis that logic is useful in law
miss the target. For example: the proponents of various incarnations of legal realism
rejected the so-called formalism for the sole reason that it misrepresented actual legal
practice. Meanwhile, there are no grounds for denying the normative character of the
logical models of legal reasoning. Logic is usually considered the minimal requirement
of rationality. Therefore, one should not attack it on the basis that some people do not
follow its precepts; they simply behave irrationally.15
It must be added, however, that there exist conceptions of rationality which seem,
at least prima facie, to reject the usefulness of logic in the sphere of practical reason
(including law). Two famous such conceptions are the topic-rhetorical theory of legal
reasoning and legal hermeneutics.16
14 Cf. Stelmach & Broek [2006: chapter 1].
15 Cf. B. Broek [2007: chapter 2].
16 Cf. Stelmach & Broek [2006: chapters 4 and 5].

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50

According to the topic-rhetorical approach, any rational argumentation is efcacious

argumentation. It does not need to meet any formal requirements, or strive for fairness;
the only thing that counts is to reach the pre-determined discursive goal. In such theories
e.g., in Chaim Perelmans New Rhetoric logic is but one of the possible sources of topoi
or common places. It must be stressed, however, that even in the topic-rhetorical conceptions logic plays an indispensable role. It is clearly visible as soon as one considers the
strategic level of reasoning. When one chooses a certain argumentation strategy, one that
is the most efcacious, one follows an argument. This argument is inherently normative
(practical) and must comply with the rules of logic. It is modelled after the structure of
the hypothetical imperative: If a person X is willing to achieve the goal G, and M is the
means of achieving G, X should do M. X is willing to achieve the goal G. M is the means
of achieving G. Therefore, X should do M. This argument is a simple modus ponens:
pqr
p
q
r

More difcult is the case of hermeneutic models of legal reasoning, which ex denitione abandon such notions as rationality, logic or justication. They also question such
distinctions as subjective-objective, or normative-descriptive. The easiest way of
dealing with legal hermeneutics is to either claim that such theories are nonsensical, or
admit that hermeneutics develops a novel kind of ontology, one that differs so much
from the more traditional conceptions that it does not reject legal logic but makes
any questions pertaining to the logic of the normative ill-stated. I believe, however,
that at least some insights provided by hermeneutics are interesting and given a sufciently broad understanding of logic may be accounted for with the use of formal
tools. I shall come back to this problem below.

3. The myth of triviality

The controversies over legal logic are usually centered around the so-called legal syllogism. This comes as no surprise, since the legal syllogism (an argument consisting
of two premises: the general legal norm and the description of the state of affairs, and
one conclusion: the individual legal decision) is considered the paradigmatic example
of legal argument.
It is often claimed that legal reasoning is trivial yet this thesis is Janus-headed. Firstly, it is highlighted that legal syllogism is used only after all the important decisions in
the process of applying law i.e. the validation decision, the interpretation decision,
and so on have already been made.17 Doubtless, this is correct. However, legal syllogism does not exhaust the logical structure of legal reasoning. Each of the partial
decisions in the process of applying law may be reconstructed logically.18
17 Cf. Peszka [1996: 43ff].
18 Broek [2007: chapter 2].

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51

Secondly, the triviality of legal logic is claimed to result from the thesis (endorsed,
inter alia, by Chaim Perelman) that the essence of legal thinking is valuation, which has
nothing to do with logic. This claim is based on a misunderstanding. Irrespective of
how far one develops the logical structure of a legal argument, one ultimately needs to
assume some premises. Yet this is the case both in law, and in any sphere of reection
where logic is applied. It is no real discovery: it follows immediately from the formal
character of logic. It is also not the case that valuations have nothing to do with formal logic. Like any argument, a rational valuation has a certain structure which may
be captured with various formal systems. A case in point is Robert Alexys Weight Formula (Gewichtsformel).19 Valuations do have structures, although those structures do
not exhaust the entire process of valuation. To put it differently: an argument against
legal logic which amounts to the claim that it is trivial as it is valuation that is the
essence of legal thinking, is similar to claiming the triviality of the Aristotelian logic
because in the argument All people are mortal, Philosophers are people, therefore
Philosophers are mortal logic cannot help one to establish that people are mortal and
that philosophers are people.
One can also formulate a positive argument against those who consider legal logic
trivial. Let us observe that the logical schemata used in legal discourse, and legal syllogism in particular, structure legal thinking. Put simply: without the syllogism as a rationality standard, a lawyer would not know what partial decisions need to be made in
order to arrive at a nal decision. The key role of legal syllogism has nothing to do with
the algorithmisation of legal reasoning; such a view would be naive. However, legal
reasoning cannot dispense with legal syllogism as it provides it with a structure.

4. The myth of paradoxicality

The next objection raised against legal logic boils down to the observation that the
attempts at constructing the logic of norms lead to the occurrence of a number of paradoxes. It follows, as some argue, that the very idea of constructing a logic of norms or
a legal logic may be paradoxical: the existence of paradoxes speaks to the impossibility
of there being a logic in law.
This is a gross misunderstanding. Firstly, some of the paradoxes of deontic logic are not paradoxes at all. For example: the notorious Ross Paradox is connected to
a logically valid argument in the standard deontic logic in which from the norm You
ought to send the letter one deduces the norm You ought to send the letter or burn
it. It is claimed, sometimes, that this argument is unintuitive. Meanwhile, a lawyer is
perfectly happy with the derived conclusion. The fact that a legal system contains the
norm You ought to send the letter, as well as its logical consequence You ought to
send the letter or burn it, does not mean that one would obey the law by burning the
letter. Such a behaviour would full the latter norm, but violate the former. It is only
through sending the letter that our behaviour is in compliance with the requirements
of the law.
Secondly, there exist real deontic paradoxes, and in particular the contrary-to-duty
ones. The contrary-to-duty paradoxes arise in connection with the so-called contra19 See Alexy [2007].

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52

ry-to-duty rules. Such rules say what ought to be done in case some other rule has been
violated. It means that while speaking about the contrary-to-duty paradoxes two rules
have to be taken into account, e.g.:
(A) It ought to be the case that if q then p.
(B) It ought to be the case that if q and not-p then r.
(B) is here a contrary-to-duty norm, for it says what is obligatory (r) when some
other rule (A) has been violated (q and not-p).
A very bold exposition of the contrary-to-duty paradoxes (such as Chisholms, Forresters, etc.) may take the following form. All the sets of sentences that entail paradoxical consequences contain, at least, the following three elements: a non-CTD rule like
(A), a CTD-rule that has as a condition the violation of the non-CTD rule, a proposition
stating that the violation of the non-CTD rule has occurred. This is all not to say that
the CTD-paradoxes are irresolvable. An interesting way of dealing with them consists
in declaring the legal rules defeasible.20
Importantly, the existence of such paradoxes does not lead to the conclusion that
legal logic is impossible. When a paradox emerges, one does not need to resign from
the attempts to develop a normative logic; rather, one is in a better position to develop
new, more adequate formal systems.
Thirdly, the very fact of there being logical paradoxes is nothing new or troublesome. The most commonly accepted logic classical logic is lled with many paradoxes, e.g. the paradoxes of the material implication. For example, the following
argument is valid in the propositional logic:
If John is in Paris, then he is in France; and if John is in London, then he is in England.
Therefore, if John is in Paris, he is in London or if he is in France, he is in England.

5. The Jrgensen myth

In 1938 in Erkenntnis the Danish logician Jrgen Jrgensen published a paper entitled Imperatives and Logic. In the article, he developed a dilemma pertaining to
imperatives which also applies, mutatis mutandis, to legal norms and legal logic. It may
be reconstructed as a set of the following four claims:
(I) Only true or false sentences can serve as premises or conclusions in logically
valid arguments.
(II) Norms cannot be ascribed truth values.
Hence:
(III) Norms cannot serve as premises or conclusions in logically valid arguments.
But:
(IV) Intuitively, correct normative arguments do exist.
Thus, the Jrgensen Dilemma boils down to the observation that there can be no
logical relations between norms (as they cannot be ascribed truth values), yet we construct arguments based on norms and our intuition considers them valid.
The two typical strategies of resolving the dilemma are the following. Firstly, the premise (II) is sometimes questioned, which leads to accepting cognitivism, i.e. a theory accord20 Cf. Torre [1997]. In the recent years, the contrary-to-duty paradoxes have been the subject of intense research. Accepting a kind of defeasible logic is not the only solution to the paradoxes that seems plausible.
See Carmo & Jones [2001] and the references given there.

Legal logic. Myths and challenges

53

ing to which norms do have truth values. This strategy is questionable as it rests on the
acceptance of a peculiar theory of truth. Secondly, a distinction between norms and deontic sentences is introduced; the deontic sentences are understood as either descriptions of
norms or descriptions of the duties expressed in norms. Such sentences, it is argued, may
be ascribed truth or falsehood. However, we are also in this case facing a non-standard account of truth (e.g., in the present context one would need to say that the truth of a sentence
hangs together with the felicity of a speech act through which the norm was enacted).21
It seems that one does not need such complex strategies to deal with the Jrgensen
Dilemma, as it rests on a misunderstanding. The misunderstanding pertains to the
rst premise of the dilemma which holds that logic operates only with true or false
sentences. In order to explain the sources of this claim we need to devote a few words
on the history of the problem.
The strongest argument backing the rst thesis of the dilemma is connected to the
so-called metalogical theorems, and the soundness and completeness theorems in particular.
They take advantage of the fact that sentences can be ascribed truth or falsehood. In other
words, a logic of propositions which cannot be true or false would have no corresponding
metalogical theorems. According to some views, such a system is not a logic at all.
It is easy to understand it as soon as one realizes that the soundness and completeness theorems express the fact that there is a certain adequacy between the syntax
and the semantics of the given formal system. Speaking loosely, it says that our language (syntax) ts the world (semantics). Moreover, the very notion of logical consequence is essentially connected to the notion of truth. In his 1936 paper Alfred Tarski
dened the relation of logical consequence in the following way:
A sentence A follows logically from the set of premises G if and only if in every case
in which the premises belonging to G are true, A is also true.
All metalogical theorems are based on this observation. However, Tarskis analysis,
even if commonly accepted, is no dogma. To analyse this problem, let me repeat an
analogy developed by John Etchemendy in his 1990 book on logical consequence.22 In
the metamathematics several different formal systems characterizing the class of computable functions have been developed. It turned out that the results provided by the
systems are coextensive. It was the basis for the claim (known as Churchs Thesis) that
the class of intuitively computable functions is coextensive with the class of computable
functions as dened by the systems. The problem with Churchs Thesis is that it hasnt
been proven (and possibly cannot be proved) mathematically.23 Now, Etchemendys
analogy is that a similar problem was faced by the early 20th century logicians whose
various proof-theoretic or, in other words, syntactic systems were designed to capture
the intuitive notion of logical consequence. Etchemendy calls the claim that those systems captured the intuitive notion of consequence Hilberts Thesis. Hilberts Thesis
has had a different fate to Churchs Thesis. As Etchemendy puts it, it has been replaced
by soundness and completeness theorems and the idea of those theorems is ultimately
based on Tarskis analysis of logical consequence. But what does the proof of Hilberts Thesis consists of? This is an exercise in the formalist paradigm of doing logic
and mathematics. Any soundness and completeness theorems establish certain relations between two mathematical structures; it so happens that some elements of one of
21 Cf. Woleski [1980].
22 See Etchemendy [1990: 5-6].
23 Olszewski [2009].

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54

these structures are interpreted informally as designating truth values. This does not
mean, however, that one cannot account for some interesting relations between propositions which have nothing to do with their truth values. This is the case in a number of
recently developed formal systems, such as some kinds of nonmonotonic logic.24

6. The myth of hard cases

It is sometimes argued that logic may be applicable in the law, but only in easy,
algorithmic cases. The so-called hard cases the argument runs escape any logical analysis. This claim may be treated as a rened version of the triviality objection.
However, as it does not reject the role of logic in the law altogether, but only limits its
application, I treat it separately.
At the outset it should be noted that it is difcult to establish a sharp criterion for distinguishing between easy and hard cases. The best candidate for such hard or non-algorithmic cases are those in which there is a conict between a legal rule and a legal principles
(in the Dworkinian sense).25 The possibility of such conicts makes room for a potentially
innite number of exceptions to any legal rule: such rules cannot be formalized in the
classical monotonic logic. Thus, hard cases may be prima facie identied with situations in
which there is a conict between a rule and a principle; they are hard, as they cannot be
accounted for with the use of the classical logic. This does not mean, however, that there
are no identiable formal aspects of such conicts. It is argued that they are well captured
in defeasible systems. An example of a defeasible logic is a system which operates on two
levels. On the rst level, from a given set of premises arguments are built; on the second
level the arguments are compared in order to decide which of them prevails. The conclusion of the best argument becomes the conclusion of the given set of premises.26
This leads us to a more general observation. I believe that any reasoning even in
the hardest of cases has a certain structure. If so, it is formalizable: one can develop
a logical system that captures the rationality standard for the given type of arguments.
This applies also to such non-algorithmic views of legal cognition as the ones proposed in legal hermeneutics. The hermeneutic act of cognition has a certain structure, although it is vaguely dened. However, a logician who considers the famous
hermeneutic circle may suggest a number of its formal interpretations: with the use
of the logic of abduction, formal theory of belief revision, logical theory of coherence,
defeasible logic, or a combination of these techniques.27

7. Is there a special legal logic?

There is no doubt that logic may serve to analyse and set standards for legal reasoning.
The question emerges, however, whether there exists a special or dedicated legal
logic. Jaap Hage answers this question in the positive.28
24
25
26
27
28

Cf. Hage [1997] and Broek [2004].

Cf. Dworkin [1978].
Cf. Prakken [1997].
I explore these possibilities in some detail in Broek [in press].
Hage [2001].

Legal logic. Myths and challenges

55

Hage begins by noting that it is sometimes claimed that there exists (informal) legal
logic, one in which such arguments as:
(ARGUMENT 1)
A did not commit a crime forbidden by the written law.
Therefore: A is not liable to be punished.

are valid. The obvious observation is that this argument is invalid in classical propositional logic (an arbitrary p does not follow logically from an arbitrary q). This fact
forced Arend Soeteman to question the possibility of a logic exclusively dedicated to
law.29 Soeteman observes that such arguments as the one presented above are either
enthymemes (i.e., the missing premise, the proposition p q, holds), or they are logically invalid. In other words, Soeteman launches an attack against (informal) legal
logic which makes use of domain knowledge, [by claiming that] either the domain
knowledge can be made into an acceptable additional premise which makes the argument formally valid [], or it is not possible, and the verdict of formal logic that the
argument is invalid turns out to be the correct one.30
Hage disagrees with this conclusion indicating that Soeteman presupposes a sharp
distinction between the form and the content of arguments.31 However, such a distinction is always relative to the accepted formalism. Even when we consider propositional logic vis a vis predicate logic Hages argument runs the distinction between
form and content becomes obscure. Let us consider the following argument:
(ARGUMENT 2)
All thieves are punishable.
John is a thief.
Therefore: John is punishable.

Reconstructed in propositional logic, this argument is invalid, while it becomes

valid formalized with the resources offered by the predicate logic. Of course, one can
follow Soetemans strategy and imply that there is a hidden premise to the argument,
namely If all thieves are punishable and John is a thief, then John is punishable.
However, the possibility of adducing such hidden premises has never been considered
a reason to denounce the predicate logic as informal or no real logic. The same line
of argument can be applied, Hage claims, to dedicated legal logic.
Hage reinforces his view by discussing the problem of the nature of logic. He invokes a Quinean holistic view of knowledge and claims that logic is but a knot in our
web of beliefs. Of course, in the face of inconsistencies, we are more prone to revisit
our empirical beliefs or scientic theories; however, neither logic nor mathematics is
adjustment-proof. In this way, logic is not opposed to domain knowledge, as it is
on the traditional view [of logic]. There is a continuum in our presumed knowledge,
ranging from accidental beliefs which we are willing to revise on the slightest evidence
that they are false, through rm beliefs which we are only prepared to give up on the
basis of strong counter evidence, corroborated laws which we use to derive beliefs
29 Cf. Soeteman [1989].
30 Hage [2001: 354].
31 Cf. also Sher [1991] and Read [2002].

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56

and which we only give up if we can nd better ones, to logical laws, of which we
cannot even imagine circumstances under which we are prepared to give them up.32
This leads Hage to a much more liberal view of logic than traditionally assumed:
logic deals with all connections between propositions which we hold to be necessary because we are not prepared to change them in the case of incompatible beliefs.
Such necessary connections may be based on the meanings of logical operators, and
therefore logic in the traditional sense is part of the holistic logic []. But other necessary connections than those based on the meanings of logical operators fall under the
scope of logic too. [] This more liberal picture of logic [] leaves room for a special
legal logic. The task of such a logic would be to explore (semi)-necessary relations that
belong specically to the domain of law.33
In order to evaluate both Soetemans and Hages stances, let us pose the question as
to what may be the relationship of logical consequence between propositions analysed
(captured) by various logical systems. According to the traditional view, logic is a consequence relation understood in terms of Tarskis analysis: A sentence A follows logically
from the set of premises G if and only if in every case in which the premises belonging to
G are true, A is also true. This truth-preservation view of logical consequence may be replaced with a weaker notion pertaining to justication: logic identies such relationships
between the sets of premises and their conclusions in which the conclusions are justied
relative to the premises. (It is easy to observe that such a relation of logical consequence
is not necessarily monotonic and thus it ts the defeasible logic referred to above.).
Finally, one may adopt the broadest understanding of logic, one that allows logicians
to analyse any relations between propositions. This tripartite division corresponds to
three different denitions of logic: as a formal system that encodes the Tarskian relation
of logical consequence, as the justication-grounding formal system, and as any formal
system that encapsulates some formal relations between propositions.
In all these cases, the relations in question are formal. The question is, however, how
to dene form, or, in other words, when a system counts as formal? Is there any suitable criterion that would differentiate between form and content? When the broadest
denition of logic is assumed, there is no such criterion. This seems to be Hages view:
such arguments as (ARGUMENT 1) can be considered logically valid. In other words,
there are no a priori limits of incorporating domain-specic knowledge into the formal
apparatus. It follows that there can be a special legal logic.
When I nd Soetemans position too restrictive, I also believe that Hages stance is
too liberal (at least as it is stated). Of course, there is no a priori limit on which concepts
of our knowledge (represented as predicates in the rst order logic) may be turned into
logical operators. However, let us consider the following argument:
(ARGUMENT 3)
x has entered into a service agreement that requires of him to see to it that p.
Therefore: x has an obligation to see to it that p.

It is possible to design a logical system in which this argument would be valid. It

would sufce to introduce two logical operators:
32 Hage [2001: 358-359].
33 Hage [2001: 359-360].

Legal logic. Myths and challenges

57

E(x, p) for has entered into a service agreement that requires of him to see to it that; and
O(x, p) for has an obligation to see to it that;
where x ranges over persons and p over actions,

and a rule of inference (RI/E-O):

E(x, p)
O(x, p)

However, I believe that the introduction of new operators must meet at least the following two conditions:
(Condition 1) The concepts transformed into logical operators must be general enough to be applicable in
a sufciently broad class of arguments.
(Condition 2) The introduced operators must be denable in the semantic structure of the given logical
system.

I am fully aware of the fact that both conditions are, to a certain extent, arbitrary and
vague. However, I would argue that they hint at a real problem. Let us consider the
operator E(x, p) I introduced above: it does not meet (Condition 1), as it is not general
enough; at the same time, the operator O(x, p) seems to comply with (Condition 1). It
is clearly visible as soon as one considers the need to introduce the rule of inference
(RF/E-O) in order for the operator E to work. There are a number of ways in which
our actions may generate obligations: one of them is entering a contract. But there are
numerous kinds of contracts, the service agreement being only one of them. It follows,
therefore, that the introduction of the operator E(x, p) would require the introduction
of a number of other operators corresponding to all kinds of contracts (lease agreement, loan agreement, brokerage agreement, and so on; notice also that there exist the
so-called innominate contracts, i.e. contacts whose essentialia negotii are not specied
in any legal act, but which can be entered into on the basis of the freedom of contract;
thus, there exists a potentially endless list of the types of contracts). Add to it that for
every such new operator one would need to introduce corresponding rules of inference, and then the resulting formal system would be useless.
One way out of this problem is to stay at the suitable level of generality. For example, one may argue that instead of introducing the operator E(x, p) and an indenite
number of other operators standing for various types of contracts, one need only to
introduce the operator C(x, p) standing for x has entered into a contract that requires
of him to see to it that p. However, such a solution helps us to deal with (Condition
1) only (Condition 2) remains unanswered. The motivation behind the latter requirement is straightforward. When one considers such logical operators as obligatory (in
the standard deontic logic), necessary (in modal logic), see-to-it-that (in branching-time
deontic logic), they are given intuitively correct semantic denitions (e.g., a proposition p is necessary iff p is true in every possible world accessible from the actual world;
a proposition p is obligatory iff p is true in every possible world belonging to the class
of deontically perfect worlds, etc.). As long as there is no similar denition for the specically legal logical operators (like E(x, p) or C(x, p)), there is no proof that a special

Bartosz Broek

58

legal logic is possible. I know of no such logical systems (and the examples that Hage
provides e.g. the logical tools for dealing with the distinction between rules and principles are not law-specic, as they apply equally easily to ethical discourse or even
to some common sense descriptive reasoning). This is not to say that it is impossible to
develop such full-blooded legal logical operators. However, this manoeuvre needs
to be justied and the best way to do so is to introduce a semantic structure which is
typically legal and has an obvious advantage over representing legal knowledge
within some domain-independent semantics.
My doubts concerning the existence of a specic legal logic have no bearing on
the claim that there exist interesting and fruitful elds of studying law with the use of
logic. The application of logical tools in the legal domain have led not only to the development of new formal techniques (e.g., some incarnations of defeasible logic), but
also to profound questions pertaining to the very nature of logic. There is little doubt
that this rich area of study will bring us more fruit.

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Taking Rights Seriously, Cambridge (Mass,), Harvard University Press.
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The Concept of Logical Consequence, Cambridge, Cambridge University Press.
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Reasoning with Rules, Dordrecht, Kluwer Academic Publishers
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59

Prakken, Henry
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