THE LIFE OF LAW HAS NEVER BEEN LOGIC

Meaning of the term law

Law is the cement of society and also an essential medium of change. Knowledge of law increases one understands of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word, as well as some understanding of social values . Law as an abstract concept pervades all of the strata of the society, affecting these areas on different perspectives for one goal- development or otherwise of such a society .

Meaning of the term Logic

Logic is that branch of philosophy which reflects upon the nature of thinking. It attempts to answer questions like what is correct reasoning? What distinguishes a good argument from a bad one? What are the methods of detecting fallacies in reasoning, if so what are they . 

Logic is the most fundamental branch of philosophy. It is not a branch of psychology; it does not deal with all types of thinking called reasoning. Logic is prescriptive ought and deals with the formulation of general rules for correct reasoning .

In reasoning we produce reasons as evidence for certain conclusion we wish to establish.  Reasoning is closely connected with making inferences (inferring). The reasons we provide allow us to infer a certain conclusion. In this sense logic is a descriptive attempt to distinguish bad reasoning from good reasoning or what is equivalent to good inferences . Generally, Logic may be defined as a branch of philosophy which attempts to determine when a given sentence or group of sentences permits us to correctly infer some other sentence.

Types of logic

Traditionally, philosophers divide logic into two main branches that is inductive and deductive reasoning and both are generally concerned with the rules of correct reasoning or correct argumentation.

Inductive  reasoning  is  reasoning  from particular  to general,  but  the  term  may  be used  in  a  broader  sense  to  encompass  all kinds  of  reasoning  in  which  the  premises support,  but  do  not compel, the conclusion. Deductive reasoning on the other hand moves from general to particular.  

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Relationship that exist between law and logic

There is a great relationship between logic and the law, and this is evidenced in the way codes or pieces of legislation are drafted or drawn show an internal logic of the concepts and categories of the phrases and terms contained as well as internal local consistence of the provisions. The law is concluded in more generalized in order to enable it to deal both with specific and tenurial cases .  

Another instance that shows the relationship between logic and the law is that judgments are written in a manner that suggests a logical consistence and the choices of words and phrases reflect certain categories logically connected .

The facts of a dispute between the parties having been ascertained by the Court, they are subsumed under the rule by a process of logical deduction. Before this is done, it may be necessary to interpret ambiguous words or indeterminate concepts forming part of the rule. It may also happen that a general rule covering the facts is not readily available to the sequence of earlier decisions . 

There are also many cases where the facts found by the court do not fit within the semantic frame of the existing rule, but where the device of analogy is used by the court in applying a related rule or similar precedent embodying a general policy or rationale appropriate for the decision of the case .

Debate on whether the life of law has been logic or experienced

Despite all this there has been a lifelong debate on whether logic plays an important role in law or not. This first was seen in the struggles between Justice Coke and Mc Monerdry in Britain, where Justice Coke, he supported the application of logic in law by starting that the cases are not supposed to be decided by natural reasoning but by artificial reasoning. He supported the application of logic in law that would create certainty and promote sound administration of justice . 

What the chief justice was saying was the fact that through training and practice a lawyer attains ascertains level of thinking and arriving at decisions through the art of reasoning. In dispute is the extent to which logic is applied in legal decisions . 

In the case of Samwel Silanga v R , the court applied logic as, because the evidence showed that the accused found with blood into her clothes, and because the murder involved stubbing of knife, the court drew conclusion from these facts and held that the accused might have killed the deceased.

Athur Guest says that there has been a move against logic in law because: "logical thought processes are rigid and inflexible to the extent of turning judges into stooges of the law other than conscious individuals. This suggests that to use logic would mean to turn judges into automatons which are in fact not reflected by the way judges make decisions . 

Points advanced to justify the life of law has not been Logic

Another opponent to the use of logic is, O.W. Holmes in his book "The Path of the Law" in which he categorically asserted that: The life of the law has not been logic but experience. These seem to put some limitations on the extent to which logic is applicable by lawyers .

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed .

While this statement is perhaps susceptible to more than one interpretation, Holmes can be construed as making two points which are essentially sound and true. First, that the changes and development of legal rules and principles cannot be fully explained and made intelligible in terms of purely logical analysis of legal concepts. Second, that such logical analysis is not a sufficient tool for rationally deciding legal controversies .

Logical deduction doesn't necessarily determine the rules. This is also what Judge Holmes was saying, He's using "syllogism" as an example of a logical structure that could be used in determining the law, but which in his view is overshadowed by theories, policy choices, or prejudices of the time .

The "life" of the law how it is exercised is based on experience, not logic. As a syllogism is a logical structure, all of the items he has listed are experiential and take precedence over the logic. He is contrasting the content (logic) of the law with its application. For example, the law might state that the posted speed limit on a particular stretch of road is 45 miles per hour. However, this road leads to a hospital. So the application of the law from a perspective of experience may take this into account when handing down a verdict for a particular offender who happened to be rushing his child to the emergency room. The syllogism of law states an absolute; experience gives it flexibility .

Legal decisions can often be looked upon as processes of enriching the content of legal rules by making the range of their application more determinate, rather than simply deductive applications of existing rules. Legal theorists often fail to distinguish questions of classification from questions of logical inference, and include a discussion of both under the undifferentiated notion of logic .

The life of law is not just logic but experience, the life of law is renewal based on experiences which adapt law to the new social reality. Indeed, there are always changes in law, caused by changes in society. The history of law is also the history of adapting law to life’s changing needs. The legislative branch bears the primary role in making conscious changes in the law. It has the power to change the legislation that it itself created. It has the power to create new legal tools that can encompass the new social reality and even determine its nature and character . 

CONCLUTION

Generally, the life of the law has not been logic: it has been experience. These lists of experiences have done more than logical structures, the syllogism, to determine the rules by which men should be governed. Therefore it can be rightly said that, the life of the law is not logic, but experience as structured by logic.

REFERENCE

BOOKS

Barak, A., (2008). The Judge in a Democracy. Princeton: Princeton University Press.

Falk, P. J. (2014). Not Logic, but Experience: Drawing on Lessons from the Real World. New York: Yale University Press.

Freeman, M.D.A., (2008). Introduction to Jurisprudence (8th Ed).  London: Sweet & Maxwell.

Mbao, M. L. M. (2010). Constitutionalism and the rule of law in the third millennium. North West University.

Williams, G. L., & Smith, A. T. H. (2006). Glanville Williams: Learning the law (6th Ed). London: Sweet & Maxwell.

ARTICLE AND JOURNALS

Halper, T., (1968) "Logic in Judicial Reasoning" Indiana Law Journal: Vol. 44: Iss. 1, Article 2.

ELECTRONIC SOURCES

http://www.lifeofthelaw.org/2012/09/logic-and-experience/  Retrieved on 22nd January 2017 at 10:00PM

CASE REFERED

Samwel Silanga v R [1993] TLR 149