Page 256 - 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. 256
What Do We Know about the World?
To be a legal syllogism (which is a kind of “practical syllogism”) such a
logical operation must have the following structure:
1. (Normative) Major Premise: a general rule connecting a sanction to
a course of conduct. Premise (1) states that, for every x, if x is P (and
P is for instance the set of features of the type of offence), then the
sanction Q (such as, for instance, detention) must be applied to x. In
a general and informal way: people having committed P must be sub-
mitted to measure Q.
2. (Factual) Minor Premise: a concrete event, which has happened to
someone. Premise (2) states that a specific legal case a is P since it has
the same features as x. In a general and informal way: B has commit-
ted P.
3. Conclusion or “subsumption”: a necessary inference. Since, accord-
ing to minor premise (2), a is P, the rule expressed in major premise
(1) applies to a: then Q must be valid for a. In a general and informal
way: B must be subject to the measure Q.
According to the founders of modern legal positivism the judge
charged with deciding the case (we are referring particularly to trials in
Civil Law systems) already has the elements for finding both the norma-
tive major premise (the codified law in the hierarchy of legal sources) and
the minor one (the rules of evidence). His/her task is hence “to subsume
the latter under the former” in order to logically obtain the conclusion. A
totally “automatic” task, as stressed by Montesquieu and Beccaria.
5. Some Problems Relating to the Syllogistic Model
This logical scheme of inference isn’t wrong in itself, but it counts
only as a final operation in which all elements have been previously de-
termined. Indeed, if we look at the judicial context in the real world, we
can easily realize that the judge at the beginning of his/her reasoning has
no clear elements to work with. The normative major premise (1), for in-
stance, “exists” only as a set of potential meanings related to some state-
ments written in (what has been recognized as) the books of law.
So the judge has first of all to choose one or more normative state-
ments from the books and, in the second case, also a combination be-
tween them (it is not unusual in fact that more than one statement could
satisfy the judge’s search for a normative qualification of the reported be-
haviour of S and, consequently, that more than one combination could
be possible within different statements); secondly he/she must interpret
the legal statements according to grammar, syntax and lexis: an opera-
To be a legal syllogism (which is a kind of “practical syllogism”) such a
logical operation must have the following structure:
1. (Normative) Major Premise: a general rule connecting a sanction to
a course of conduct. Premise (1) states that, for every x, if x is P (and
P is for instance the set of features of the type of offence), then the
sanction Q (such as, for instance, detention) must be applied to x. In
a general and informal way: people having committed P must be sub-
mitted to measure Q.
2. (Factual) Minor Premise: a concrete event, which has happened to
someone. Premise (2) states that a specific legal case a is P since it has
the same features as x. In a general and informal way: B has commit-
ted P.
3. Conclusion or “subsumption”: a necessary inference. Since, accord-
ing to minor premise (2), a is P, the rule expressed in major premise
(1) applies to a: then Q must be valid for a. In a general and informal
way: B must be subject to the measure Q.
According to the founders of modern legal positivism the judge
charged with deciding the case (we are referring particularly to trials in
Civil Law systems) already has the elements for finding both the norma-
tive major premise (the codified law in the hierarchy of legal sources) and
the minor one (the rules of evidence). His/her task is hence “to subsume
the latter under the former” in order to logically obtain the conclusion. A
totally “automatic” task, as stressed by Montesquieu and Beccaria.
5. Some Problems Relating to the Syllogistic Model
This logical scheme of inference isn’t wrong in itself, but it counts
only as a final operation in which all elements have been previously de-
termined. Indeed, if we look at the judicial context in the real world, we
can easily realize that the judge at the beginning of his/her reasoning has
no clear elements to work with. The normative major premise (1), for in-
stance, “exists” only as a set of potential meanings related to some state-
ments written in (what has been recognized as) the books of law.
So the judge has first of all to choose one or more normative state-
ments from the books and, in the second case, also a combination be-
tween them (it is not unusual in fact that more than one statement could
satisfy the judge’s search for a normative qualification of the reported be-
haviour of S and, consequently, that more than one combination could
be possible within different statements); secondly he/she must interpret
the legal statements according to grammar, syntax and lexis: an opera-
