Page 255 - Gabrijela Kišiček and Igor Ž. Žagar (eds.), What do we know about the world? Rhetorical and argumentative perspectives, Digital Library, Educational Research Institute, Ljubljana 2013
P. 255
taking judges seriously 255
simple rules with them” (Lolli: 1991, 13); the advantage of this choice is
evident, it is a practical one: knowing in advance the conclusions on the
exclusive ground of knowing the causal relations.
Thanks to Boole and Frege, modern logic will finally conduct rea-
soning to artificial languages and to “mathematization” (Agazzi and
Vassallo, 1998: 33–45).
4. The Legal Syllogism
When we speak about logic in legal decisions are we assuming that
legal reasoning is also a matter of discourses? In that case, it depends sim-
ply on what sort of logic we are talking about. For modern logic, the
more certain a decision must be, the more it must avoid discursive forms,
because the judge, as Montesquieu argued, must play the unique role of
loudspeaker of the written norms. He/she is “la bouche de la loi” (the
mouth of the law), but possibly not the brain. He/she must repeat rath-
er than speak, for speech is a slippery slope where thaumazein can oc-
cur at any moment. We can never forget that the modern ideology of le-
gal positivism is founded upon a double (axiomatic) presupposition: the
completeness and univocity of the legal system itself. On the contrary, dis-
courses in the real world are never complete or univocal (Endicott, 2003;
Luzzati, 1990; Paganini, 2008; Puppo, 2011; 2012).
Although such a presupposition is no longer professed by most legal
positivists, a large proportion of lawyers and judges are still convinced
that legal reasoning is basically a “subsumption”, that is, a logical deduc-
tion from a normative major premise and a factual (descriptive) minor
one. There are, indeed, different discourses from the legal point of view:
depending on the speaking subject (the Legislator, the judge, the posi-
tive law scholar, the prosecutor, the lawyer etc.), on the context (before,
during or outside the trial), on the issue (norms, principles, judicial pro-
ceedings etc.).
I am now going to consider the judge’s discourse in detail, in so far
as it is directed at arriving at a legal decision. My aim is to show that the
so-called “legal syllogism”, masquerading as a formal scheme of reason-
ing independent from interpretation, is conversely, by its own nature ar-
gumentative. To do so, I will start by considering the formula of the syl-
logism as follows (Alexy, 1978; Rotolo, 2001; Bernal, 2013):
Major Premise: (1) “x(Px → MQx)
Minor Premise:
Conclusion: (2) Pa
(3) MQa (1) (2)
simple rules with them” (Lolli: 1991, 13); the advantage of this choice is
evident, it is a practical one: knowing in advance the conclusions on the
exclusive ground of knowing the causal relations.
Thanks to Boole and Frege, modern logic will finally conduct rea-
soning to artificial languages and to “mathematization” (Agazzi and
Vassallo, 1998: 33–45).
4. The Legal Syllogism
When we speak about logic in legal decisions are we assuming that
legal reasoning is also a matter of discourses? In that case, it depends sim-
ply on what sort of logic we are talking about. For modern logic, the
more certain a decision must be, the more it must avoid discursive forms,
because the judge, as Montesquieu argued, must play the unique role of
loudspeaker of the written norms. He/she is “la bouche de la loi” (the
mouth of the law), but possibly not the brain. He/she must repeat rath-
er than speak, for speech is a slippery slope where thaumazein can oc-
cur at any moment. We can never forget that the modern ideology of le-
gal positivism is founded upon a double (axiomatic) presupposition: the
completeness and univocity of the legal system itself. On the contrary, dis-
courses in the real world are never complete or univocal (Endicott, 2003;
Luzzati, 1990; Paganini, 2008; Puppo, 2011; 2012).
Although such a presupposition is no longer professed by most legal
positivists, a large proportion of lawyers and judges are still convinced
that legal reasoning is basically a “subsumption”, that is, a logical deduc-
tion from a normative major premise and a factual (descriptive) minor
one. There are, indeed, different discourses from the legal point of view:
depending on the speaking subject (the Legislator, the judge, the posi-
tive law scholar, the prosecutor, the lawyer etc.), on the context (before,
during or outside the trial), on the issue (norms, principles, judicial pro-
ceedings etc.).
I am now going to consider the judge’s discourse in detail, in so far
as it is directed at arriving at a legal decision. My aim is to show that the
so-called “legal syllogism”, masquerading as a formal scheme of reason-
ing independent from interpretation, is conversely, by its own nature ar-
gumentative. To do so, I will start by considering the formula of the syl-
logism as follows (Alexy, 1978; Rotolo, 2001; Bernal, 2013):
Major Premise: (1) “x(Px → MQx)
Minor Premise:
Conclusion: (2) Pa
(3) MQa (1) (2)
