Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

2  Logic and the law

The examples discussed so far can give the impression that reasoning is quite a straightforward process. While the logical processes involved are reasonably simple, their application to real-life situations is rarely this easy. This applies to their use in judicial reasoning.

Each of the forms of reasoning can be found in the interpretation of the law. The nature of statutory provisions and the system of precedent both appear at first to lend themselves to straightforward deductive reasoning.

The operation of judicial precedent can also be structured in the form of a syllogism. The prior case that has created the precedent is the source of the general rule and the facts of the current case fit within the facts of the prior case, meaning that the facts of the current case also fit within the same general rule.

Figure 5  Legal precedent as deductive reasoning

It is however misleading to say that applying case precedent is a deductive process. Common law as a whole can be described as an inductive system of law because it involves developing principles ‘bottom-up’ from specific cases rather than ‘top-down’ from highly generalised legal principles. Applying case precedent involves active choices to select cases with appropriate similarities to a new case and then treating it in the same way as a result. This is more accurately described as an analogous process than a deductive one.

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