Abstract
On the face of it, we might think that logic and the law were made for each other. Their intellectual identities are grounded in a shared stock of concepts: argument, proof, evidence, inference, probability, relevance, presumption, precedent or analogy, plausibility, reasonability and explanation. Provided that we understand logic broadly enough to include not only mathematical theories of deduction and induction, but also more recent attempts by computer scientists to investigate defeasible and default reasoning, there is not an item on this list that escapes the attention of logicians. If we also take note of brisk developments in dialogue logic and formal argumentation theory, the list of shared concepts enlarges accordingly, including among others, leading questions and cross-examination.
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Notes
- 1.
See, for example, Barth and Krabbe [1].
- 2.
Roughly speaking, a constructive proof is one whose purported objects are expressly specifiable.
- 3.
In this respect, among others, there are notable differences between common law and legal code traditions – between, for example, criminal law in England and France. In the interests of space, I shall confine my remarks to the common law tradition. A highly readable effort to bring to the fore the epistemological orientation of criminal procedures at common law is Laudan [9].
- 4.
In the manner, say, of Rescher [15].
- 5.
Although light on the formal side, see for example, Walton [17].
- 6.
For another variation of option four, see Horty [6]
- 7.
Perelman [12].
- 8.
Sergot et al. [16].
- 9.
Bench-Capon [2].
- 10.
Prakken [13].
- 11.
MacCrimmon and Tellers [11].
- 12.
Prakken et al. [14].
- 13.
Gabbay et al. [5].
- 14.
Cohen [3].
- 15.
The Deon Conferences are a good source. See, for example, http://www.doc.ic.ac.uk.deon02
- 16.
For lack of space, I pass over two important variations of the definitional notion of formalization, namely, implicit definitions and contextually eliminating definitions. For the first, think of the definition of the concept of number afforded by the axioms of number theory. For the second, think of the reduction of number theory to logic and set theory by contextual elimination.
- 17.
- 18.
It would be well to note that Bayes’ theorem is not a definition of conditional probability. If it were, it would be viciously circular. It is in fact a rule for calculating a large class of conditional probabilities.
- 19.
- 20.
Corcoran and Christacopulous [4].
- 21.
In Scottish jurisprudence, a third option is allowed – “not proven”.
- 22.
Of course, in actual practice, jurors may argue with one another over their differing readings of the testimony, and may at times effect some reduction of the difference. But this is not intrinsic to the juror’s function. Their task is to determine whether their findings agree, not necessarily their readings.
- 23.
Asterisks (*) indicate recommended readings.
References and Recommended Readings
Asterisks (*) indicate recommended readings.
Barth, E. M., & Krabbe, E. W. C. (1985). From axiom to dialogue. Berlin/New York: De Gruyter.
Bench-Capon, T. (1995). Knowledge based systems in the legal domain. In A. Kent & J. G. Williams (Eds.), Encycopedia of computer science and technology (pp. 163–186). New York: Dekker.
* Cohen, J. (1977). The provable and the probable. Oxford: Clarendon Press. [A classic protest against over-use of the probability calculus in the analysis of legal reasoning and other contexts.]
Corcoran, J. & Christacopulous, A.. (2017). Interview with John Corcoran. Academia.edu, posted 10/03/2017.
Gabbay, D. M., Canivez, P., Rahman, S., & Thiercelin, A. (Eds.). (2010). Approaches to legal rationality. Dordrecht: Springer.
Horty, J. F. (2016). Norm change in the common law. In S. O. Hansson (Ed.), David Makinson: Classical methods for nonclassical problems (pp. 335–355). Berlin: Springer.
Kant, I. (1974a). Inquiry concerning the distinctness of principles of natural theology and morality. Indianapolis: Bobbs-Merrill. First published in 1764.
Kant, I. (1974b). Logic. Indianapolis: Bobbs-Merrill. First published in 1800.
* Laudan, L. (2006). Truth, error and criminal law: An essay in legal epistemology. Cambridge: Cambridge University Press. [Perhaps the earliest treatment of the epistemology implicit in the procedures of common law].
* Laudan, L.(2016). The law’s flaws: Rethinking trials and errors, Volume 3 of the Law and Society series. London: College Publications. [A highly recommended follow-up to Laudan (2006).]
MacCrimmon, M., & Tellers, P. (2002). The dynamics of judicial proof. Heidelberg: Physica-Verlag.
* Perelman, C. (1980). Justice, law and argument. Dordrecht: Reidel. [A golden oldie.]
* Prakken, H. (1997). Logical tools for modelling legal argument. Dordrecht: Kluwer. [A good example of how computer models and dialogue-games and other such devices can try to shed light on the structure of legal thinking].
Prakken, H., Reed, C., & Walton, D. (2003). Argumentation schemes and generalization in reasoning about evidence. Proceedings of ICAIL-03.
* Rescher, N. (1976). Plausible Reasoning. Assen: Van Gorcum. [Essential reading, but problematic]
Sergot, M. J., Cory, T., Hammond, P., Kowalski, R., Kriwarczek, F., & Sadri, F. (1986). British Nationality Act (Vol. 29, pp. 370–386). Communications of the ACM.
Walton, D. (1996). Argumentation schemes for presumptive reasoning. Mahwah: Lawrence Erlbaum.
Woods, J. (2010). Abduction and proof: A criminal paradox. In Gabbay et al. (Eds.), Approaches to Legal Rationality (pp. 217–238). Dordrecht, Springer.
* Woods, J. (2015). Is legal reasoning irrational? An introduction to the epistemology of law, volume 2 of the Law and Society series. London: College Publications. London: College Publications, Second edition in 2018 [The first university-level textbook in English on this subject.]
Woods, J. (2018). What strategicians might learn from the common law. The IfCoLoG Journal of Logics and Their Applications, forthcoming.
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Woods, J. (2018). Logical Approaches to Law. In: Hansson, S., Hendricks, V. (eds) Introduction to Formal Philosophy. Springer Undergraduate Texts in Philosophy. Springer, Cham. https://doi.org/10.1007/978-3-319-77434-3_39
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